Judicial Summation: The Trial Judge's Version of the Facts or the Chimera of Neutrality

This paper analyses some of the rhetorical and linguistic features of two judges' summations to two different juries in a criminal case that was tried twice in the Tasmanian Criminal Court. In the first trial, the jury failed to reach a verdict upon a number of counts in the indictment. In the second trial, the jury returned guilty verdicts on all counts. The purpose of this paper is to cast light upon how the linguistic and rhetorical features observed in the summations lent colour or weight to a particular interpretation of the events tried. The paper argues that the judge's summing up is part of the persuasive process of the criminal trial and that judges do present a version of the facts to the jury, deploying various language strategies to construct and communicate that version. The analysis focuses solely upon the judges' summing up of the evidence and the facts. It does not deal with directions or determinations concerning the law. Three major differences between the summations are considered: their distinct thematic approaches to the factual issues, the disparate levels of assistance they provide to the jury in assessing the evidence and their relative comprehensibility. The different thematic approaches produced disparate choices concerning the evidence -- its selection for consideration and its evaluation. The approach in the first summation resulted in an analysis of the evidence that favoured the accused. In the second summation, the thematic approach facilitated a more critical appraisal of the accused's case and a more favourable assessment of the complainant's version of events. The summations also provide differential levels of assistance and achieve differential levels of comprehensibility. The first summation provides relatively little guidance to the jury in evaluating significant items of evidence. In contrast, the second trial summation gives a more directional appraisal. It also achieves a greater level of clarity in the communication of key ideas than the first summation. Both distinctions are attributed to the discourse structures of the summations and to the second summation's reliance upon such organisational and rhetorical devices as repetition, enumeration and rhetorical questions. They are also attributed in part to the comparative syntactic simplicity of the second summation's sentences. It is the conclusion of this paper that the trial judge's linguistic, discourse construction and rhetorical skills are central to the clarification or obfuscation of the facts and issues in a case. How judges say what they say is significant at two levels of sense construction -- at the level of what Bernard Jackson calls signification and at the level of communication.