Abstract
Over the past two decades, scholars have fiercely debated the acceptability of allowing defendants with a minority background to use ‘cultural evidence’ when facing criminal charges. Instead of assuming a normative stance on this regard, Braunmühl’s book brings a unique contribution by focusing on the way cultural evidence is discursively negotiated in real-life cases, through the detailed examination of transcripts from US criminal trials.
The first part of this book establishes the all-pervasive character of colonial and gendered discourse in US criminal courts. In dense and convoluted but nonetheless convincing writing, Chapters 2–4 examine the figure of the Patriarchal Other (the antipode of the Liberal West) at work in different, often contradictory, accusatory, and evidentiary constellations. Out of a corpus of 24 cases (summarized in a separate appendix), five are examined in depth, elucidating how discourses of cultural difference are recruited by the defense and prosecution alike (although the latter is typically ignored in the literature), in cases that involve male as well as female defendants.
It is also here, in the first half of this book, that its socio-legal orientation is most obvious. The author criticizes fellow leftist critical-cultural defense advocates for seeking to de-essentialize cultural evidence but continuing to regard stereotypes as distorted representations that should be rectified, thereby endorsing the empiricist epistemology behind the essentialist stereotyping of minorities. The alternative Braunmühl proposes is a ‘consciously Eurocentric’ approach to the use of cultural evidence in courtrooms that rejects claiming privileged access to ‘the truth of other cultures’. Drawing on poststructuralist discourse theory, cultural defense discourse is analyzed as a Western way of talking about others, which frames the conduct of minority defendants in terms of normatively charged concepts of gender and culture hegemonic within the mainstream of US society. From this perspective, the truth of the ‘cultural information’ presented to the court no longer matters: even if empirically correct, its framing in terms of cultural difference reiterates imagery of a more gender-egalitarian, culturally superior West. This hegemonic discourse about otherness, and the notion of ‘cultural difference’ it entails, is of a colonial nature because it frames the multiplicity of local discourses, sense-making practices, and associated behavioral patterns in terms of a The-West-and-The-Rest binary that is intrinsically hierarchical.
This book’s socio-legal orientation is also evident from the almost cursory fashion in which Braunmühl attends to what would probably seem from a discourse-theoretical angle to be the biggest challenge: she bridges the leap from abstract discourse to situated language use by simply declaring ‘discourse’ to be polysemous. Thus, even if discourse scholars find in the first part of this book a useful account of cultural othering in a legal setting, the second will be likely to elicit controversy. Chapters 6–8 explore the possibilities for resisting and transforming hegemonic discourse, after which the discourse-theoretical approach is briefly contrasted with law-in-action research in ethnomethodology and conversation analysis (EMCA). For Braunmühl, even if hegemonic discourses are hardly ever openly challenged at trial, opportunities for social change do become evident once we leave the idea of deliberately authored, intentional ‘resistance’ behind and turn instead to the uncontrolled, unintentional effects of discourse produced in that setting. The author finds subversive potential hidden in the cumulative effect of the transitory instabilities of hegemonic discourse caused by occasional lapses, inconsistencies, and the principled inability to fully control one’s discourse. Even if other participants ignore these instabilities (and their effect on sentencing is non-existent), they facilitate the emergence of alternative narratives emphasizing the contingency and inconsistency of cultural defense discourse.
The author claims that this focus on the unintended sets her work apart from current research on (countering) cross-examination in EMCA, which purportedly presumes a fully fledged subject ‘in control of the discursive effects it produces’ (p. 205). Challenges to practices of domination are hence reduced to intentional resistance (without considering whether they actually subvert or reinforce hegemonic discourse), while unintended consequences and opportunities for destabilization not seized upon by the participants are ignored. In this way, law-in-action research tacitly incorporates elements of the voluntarism–determinism dichotomy crucial to the framing of minority groups as culturally different. The author raises a number of extremely interesting points here, but unfortunately they remain slightly underdeveloped. The thesis that law-in-action research is infected with a voluntarist bias is intriguing and deserves further critical exploration, but it is unlikely that such a bias would be due to an inherent failure on EMCA’s part to identify ‘discursive strictures on […] agency’ (p. 205) or its buying into the idea that subjects preexist discourse rather than being produced by it. Dupret (2003), for example, compellingly demonstrated how the notion of an autonomous, morally accountable subject intricately forms part of the local ordering practices by which judicial actors make their work recognizable.
From a different angle, work like Dupret’s also points to a shortcoming in the analysis. The way hegemonic notions of gender and cultural difference interact with formal and legal constraints on courtroom discourse, for one thing, could do with further elaboration. The author recognizes that colonial discourse and the trial’s framework for both constructing evidence and negotiating responsibility rely on an empiricist epistemology and a rationalist conception of the subject, but stops short of demonstrating how the two are incrementally co-articulated in actual trials. The fact that she relies on official court transcripts that are not up to conversation-analytic standard does not necessarily preclude such an analysis.
Also missing is a critical consideration of the specific analytical perspectives of EMCA and discourse theory (as articulated in the influential debate among Wetherell, Schegloff, and Billig in this very journal), which is more fundamental for understanding the strains between them than the decentered subject. Braunmühl draws attention to the tension between the potential for change detectable to the outsider and an insider’s refusal or incapacity to register and act upon it. This issue has far-reaching implications, both analytical and political. Even if one accepts that outsiders who rely on an ‘external’ normative standpoint may produce valid assessments of local frameworks of relevance, it remains unclear how the ensuing critical narratives eventually feed back into the courtroom setting, given the legal constraints mentioned earlier. Braunmühl’s work is illuminating, but it raises as many questions as it answers.