May 8, 2011


Janet Malcolm, Iphigenia in Forest Hills: Anatomy of a Murder Trial (New Haven & London: Yale U. Press, 2011) ("If any profession (apart from the novelist's) is in the business of making things up, it is the profession of the trial lawyer. The 'evidence' in trial is the thread out of which lawyers spin their tales of guilt or innocence. With his examination of Borukhova, Scaring was offering an alternative to the story that Leventhal had told in his opening and then retold through the testimony of his witnesses. He would take the same evidence that, in Leventhal's tale. demonstrated Borukhova's guilt, and use it to demonstrate her innocence." Id. at 11. "The mistake was understandable: on a very hard-to-hear tape the word could easily be misheard. But that mishearing so favored the prosecution, that it so well advanced the narrative of an unsavory association, suggests that this was a mishearing by design--unconscious, perhaps, but design nonetheless. We go through life mishearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative." Id. at 13-15.).