The Criminal Trial as Emotional Reparation for the Victim

-- By CaseyBoyle - 11 Feb 2008

The criminal trial serves many purposes in American society. Its most well-recognized function is to uncover the truth and allocate justice by collecting and interpreting evidence and then rendering a judgment based on that interpretation. The criminal trial also serves another important, but often overlooked, purpose – to aid in the emotional reparation of the victim.

How the Criminal Trial Serves this Purpose

It serves this purpose in two overlapping ways. For one, it provides a forum through which victims can rehash the crime and verify their own righteousness. Secondly, it acts as a legitimate and formalized means by which victims can convert their moral and emotional sentiments into permanent judgments. In so doing, the criminal trial aids the victim in his emotional and psychological recovery by transforming him from a powerless victim into a powerful seeker of justice.

Affords the Victim the Opportunity to Rehash the Crime

The criminal trial achieves this purpose of repairing the victim by affording an opportunity for the victim to verbally rehash the events of the crime before a judge, jury, and the perpetrator. This verbalization process is psychologically liberating, especially when the judge and jury accept the victim’s version of the facts. When judge and jury are on his side, the victim achieves not only the benefit of liberation through verbalization, but also achieves the psychological benefits of what feels like an alliance against the perpetrator. In this way, the victim is able to verify his own righteousness. With the force of the state standing behind him, the victim is elevated to the status of the powerful and rightful seeker of justice and revenge.

• How are statements of this kind to be verified? You assert that verbalization of traumatic events is psychologically liberating, but you don't tell us how you know. You don't explain how the particular environment of the courtroom produces or inhibits this "liberating" experience, and you don't explain how cross-examination improves that sense. Our intuitions don't match, and mere assertion is hardly going to resolve the issue.

Serves as a Legitimate Forum through which the Victim Seeks Retribution

The criminal trial also achieves this reparative function by acting as a formalized means through which the victim seeks his own private form of retribution. More specifically, the criminal trial affords the victims of a crime the opportunity to enact their “revenge” in a legitimate, socially-endorsed way. Through the criminal trial, vengeance is institutionalized and endorsed by the conscience of society and the wallet of the state. The trial is a mechanism by which undifferentiated hatred and pain is converted into permanent final judgments. In the process, the individual undergoes a transformation that stems from the trial’s ability to justify his pain in the wake of a final judgment that inflicts equal damage on the offender.

• I don't think you can take this position by assertion, either. The trial works pretty hard to avoid allowing anyone, victim included, to identify it as a mechanism for private revenge. Delay, formalization, and other factors eliminate, deliberately, the idea of "vengeance." Even contemporary "victims' rights" advocates speak in terms of "closure" rather than revenge.

Features of the Criminal Trial that Demonstrate that One of its Purposes is to Emotionally Repair the Victim

Trials are Elaborate and Formalized

Some features of the criminal trial demonstrate that one of its purposes is to emotionally repair the victim. The fact that trials are elaborate, lengthy, and often well-publicized suggests that fact- and truth-finding might not be its core purpose. If those were the trial’s central functions, it would be sufficient to have private testimony, followed by private deliberation and sentencing.

• This is a fallacy. The paragraph offers formalization and length as indications that fact-finding is not the purpose of trial (this is mere assertion, too, rather than argument, but let that pass). Proving that B is not A is never probative that B is C, which you then go on to declare.

Instead, trials have been structured to be quite public affairs, characterized by media frenzy surrounding the victim, the offender, and often their respective family members. Rather than promoting truth, publicity and elaboration do more to serve the purpose of helping victims overcome a tragedy by garnering much-needed public support.

• "Media frenzy" is an attribute of almost no criminal trials. You are now arguing concerning purpose by citing an excessively marginal property of exceptional instances.

The Use of Victim Impact Statements

The use of victim-impact statements is another feature of the criminal trial that furthers this reparative goal. In these statements, victims describe the consequences of the crime for their lives, explaining in great detail the extent of grief suffered and the damage inflicted on their personal lives, and often include a recommendation of what the victim regards as suitable punishment for the perpetrator. These statements explicitly allow judges and juries to take emotional damage into account during the sentencing and verdict deliberation processes, and by considering the victim’s conception of a fair punishment, they also take the victim’s need for revenge seriously. It may be argued that they further the criminal justice system’s goal of deterrence. But, upon even cursory consideration, it is clear that they have no deterrent effect. Would-be criminals cannot readily foresee the emotional and psychological consequences of their actions, and therefore cannot rationally differentiate between potential victims based on this fact. Thus, in terms of seeking deterrence, the use of victim-impact statements can be seen as extraneous to the criminal trial process. But if the purpose of the criminal trial is reconceived to take into account the emotionally reparative aspect, the reason these statements are admissible is clear. Victim-impact statements are the most direct way to convert a victim’s moral and emotional sentiments into permanent final judgments.

• Indeed, and victim-impact statements are a late-20th century institution related to the situation of jury sentencing which (outside Texas) is an aberration of the capital punishment system. "Victim impact statements" have no bearing on liability, and therefore had no place in traditional criminal trials. The requirement that juries impose death sentences caused states that had never involved juries in sentencing to do so, which led advocates for victims to join with prosecutors in seeking the admission of evidence that usually goes to whiteness, wealth, and other "value" claims concerning the worthiness of the dead and the comparative worthlessness of the defendant. Once can, I agree offer these statements as a sign that when the trial is used to sentence, to that extent the trial is about revenge, which is why the Supreme Court first outlawed victim impact statements, before the Court was repacked to allow them. But doesn't that just highlight how different a "sentencing trial" is from the traditional procedure with which sentencing had nothing to do?

It is important to note that the emotional and psychological harm that a victim suffers is almost always considered in a judge or jury’s deliberation, whether or not victim-impact statements are actually used. Judges and juries are human, and humans tend to have a remarkable capacity to empathize with one another. Thus, judges and juries always implicitly consider the emotional pain of the victim. In this way, the inherent human and subjective nature of the criminal trial acts as an indirect way in which emotion and vengeance is transformed into a permanent judgment. Victim-impact statements are just the more overt version of what has always taken place.

• You seem to think that juries always ignore their instructions to concern themselves with the evidence to the exclusion of emotions and non-evidentiary statements. This is, as usual, asserted without more. It's not how juries work in my experience, and I'm not sure why you believe it's true. What happened to the victim may be relevant if the issue is whether a crime occurred, but the usual subject of the criminal trial is not whether a crime occurred but whether the defendant committed it, and for that purpose the nature of the victim's loss or suffering is utterly irrelevant but potentially prejudicial. In my experience, juries are pretty good at listening to and following an instruction to disregard what doesn't matter.

Reconceiving the Criminal Trial's Function

Focusing on the emotionally reparative aspect of a criminal trial can help to dispel the myth that our criminal system is an objective arbiter of truth and justice. When the trial’s primary function is to uncover the truth and serve justice, this perpetuates the notion that our system should be and is objective and fair, an ideal that has been elusive. By shifting our attention to the ways in which the criminal trial furthers a secondary purpose – the emotional reparation of the victim – the criminal justice system can be reconceived as a more subjective means by which victims, and society more generally, enact moral “revenge” in a formalized fashion. To achieve the goal of reparation, subjectivity within the trial process is desirable for it allows the judge to tailor the process to the emotional needs of the victim. Thus, by fully understanding the multiple purposes that the criminal trial serves, subjectivity within the process will no longer be seen as an inescapable enemy, but as a legitimate aspect of the process.

• This takes us from assertion about function to normative statement of purpose, and I must admit I find the conclusion a little shocking in view of the argument. Given that the defendant is presumed innocent (which you haven't mentioned and don't seem actually to believe), recommendation to move away from a state deemed "objective and fair" to one that "serves the emotional needs of the victim" appears to condone injustice to the innocent as long as some injured party therefore feels better. When one considers that this "enough about fairness" perspective has itself been rested on a substrate of assertions rather than proof, or even evidence, the relation between the idea expressed and the mode of expressing it adds to one's discomfort.