Int J Semiot Law (2009) 22:23–44

DOI 10.1007/s11196-008-9093-1

Trial Argumentation: The Creation of Meaning

Denis J. Brion

Published online: 21 January 2009

Springer Science+Business Media B.V. 2009

Abstract My purpose is to analyze lawyers creating meaning in three well-known

cases in Anglo-American legal history: Commonwealth v. Woodward (1997) the
famous Boston ‘nanny’ case, the O.J. Simpson Murder Trial (1995), and the John
Peter Zenger Libel Case in Colonial New York (1734). In each case, creative
lawyers were able to shift the question before the jury from the formal legal
question—did Woodward and Simpson commit murder? Did Zenger publish
libelous material?—to issues of vengeance and catharsis, and of the ability of the
legal system to represent the community’s sense of justice.

1 Introduction

In October 1997, Louise Woodward, a young English woman, living with a local
family in the Boston suburb of Newton, Massachusetts, as an au pair, was tried for
murder in the first degree in Middlesex County Superior Court in the death the
previous February of Matthew Eappen, an infant who had been in her care. When
the jury returned a verdict of murder in the second degree, after 27 h of deliberation,
Cable News Network sent a reporter into the streets of Cambridge in order to get the
reaction of the public to the guilty verdict. A well-dressed, clearly well-educated
woman responded to the reporter’s question by exclaiming, ‘Oh! The jury made a
scapegoat of her!’
The overt facts in the case—in particular, the physical symptoms that the infant
exhibited—were relatively uncontested. The meaning of those facts, however, was
highly contested. The defense argued that Louise Woodward could not have caused,
on the fateful day of February 4, the injuries that led to little Matthew’s death. The

D. J. Brion (&)
Washington and Lee University, School of Law, Lexington, VA 24450, USA
e-mail: briond@wlu.edu

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prosecution argued for a verdict of guilt, an argument that, in the opinion of the
Boston legal community, was a powerful tour de force.
I will attempt to show that the prosecution argument created a highly charged
meaning of the facts in evidence and thereby radically shifted the question before
the jury from the formal question—Did Louise Woodward commit murder?—to a
more immediate question of vengeance and catharsis—Ought Louise Woodward
bear the responsibility for the death of Matthew Eappen in order to purge the
community of a salient instance of evil?
My purpose is to analyze Commonwealth v. Woodward more deeply in order to
demonstrate the rather startling substance that lay behind the verdict of guilt and in
order to establish the connection between the prosecution’s argumentation and the
jurors’ conclusions. I will also analyze two other cases to the same purpose—the
prosecution of Orenthal James Simpson, the former football star, for murder in
1995, and the prosecution of John Peter Zenger by the English Crown for seditious
libel in the New York Colony in 1734. By way of carrying out this analysis, I will
proceed from the proposition that, in an adversarial system of justice, the protean
attorney function is argumentation. I will also seek to demonstrate that the
quintessential function of argumentation is the creation of meaning and explore how
argumentation carries out this function. Thus, I hope to portray, through my analysis
of these three cases, lawyers powerfully engaged in the protean function of creating
meaning.

2 Juries

The meaning of the facts determined in the criminal trial is embodied in the jury’s
verdict. Thus, it will be useful to begin with a consideration of the function of the
criminal jury rather than with a consideration of the function of trial counsel. If the
function of argumentation is persuasion, then the argument, in order to be
persuasive, must be sensitive to what it is that its audience—the jury—actually does.
Moreover, the verdict in the criminal trial is general in form—couched in the
terminology guilty or not guilty. Thus the meaning of the facts that have been
determined is not directly revealed by the verdict. Thus, also, it is useful to
understand meaning in two ways—the substantive meaning of the facts that emerges
through the process of jury deliberation, a meaning that determines the verdict; and
the legal meaning of the facts that the verdict entails, that the accused either is to be
punished or is to be set free.
The standard model of the jury function is formalistic in nature. The formal
question before the criminal jury is whether or not it has found the accused guilty
beyond a reasonable doubt. The formal model of the logic that the jury is to follow
is embodied in the deductive syllogism—the Rule [the law as instructed by the trial
judge] applied by the jury to the Case [the facts as found by the jury] yields the
Result [the general verdict, guilty or not guilty].

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Deduction

Rule

Case

Result

The reality, however, is quite different. It is a reality that takes place in secret
behind the closed door of the jury room and that is announced through the laconic
form of the general verdict. And the genesis of this reality that departs so
substantially from the formal model can be traced back to the political choices made
in the late twelfth and early thirteenth century England at the introduction of the jury
into the process of criminal justice [1–6].
At the time in the early thirteenth century when the trial jury began to be
developed, criminal trials were presided over by justices of the royal courts riding
circuit among the shires (pp. 120–131 in [1], [7], pp. 578–674 in [8]). The trial
process was quite unlike the present-day criminal trial. The issue was determined by
the trial jury, made up of twelve free men of the community in which the crime was
committed. The justices presided, although their role was modest and substantially
passive. The charge was read out and the jury was charged to deliberate and return a
verdict.
There was no process of introducing evidence and testimony. Instead, the jury
retired from the public venue of the trial to consider its verdict, drawing on whatever
knowledge of the circumstances of the crime that its members might have and
carrying out whatever investigations that it chose to make. Upon the conclusion of
its work, the jury returned to the court session and announced its conclusion in the
strictly limited form of the general verdict—guilty or not guilty. At the end of the
local session of the court, the justices carried out the basically ministerial function
of taking the verdict back to the seat of the royal courts at Westminster where
judgment was entered.
The establishment of the jury system in the late twelfth and early thirteenth
centuries in England can be understood as involving a substantial political
compromise. The medieval king of England was endemically faced with the
problem of establishing and maintaining his authority throughout the realm. With
the development of the jury system, the local community, through the investigative
function of the jury of presentment and the decisional function of the trial jury,
became an integral part of the processes of criminal justice in the king’s courts. The
king’s law and the king’s rendering of justice in criminal matters thereby extended

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deep into the local communities. The king’s authority ran in fact throughout the
realm.
At the same time, however, the real power lay entirely in the hands of the local
community through its representatives on the juries. It was the juries of presentment
who decided which events were to be the subject of the criminal process and who
was to stand trial because of those events. And it was the trial juries who decided
who was to be subjected to punishment at the hands of the king for those events.
These decisions were made in secret by the representatives of the local community,
outside of the public milieu of the criminal trial. And the decisions were couched in
the form of the general verdict—no justification for any particular decision was
sought, and no justification was given.
How did the trial juries exercise their enormous power of discretion? The legal
historians assert, ‘The jury spoke as representative of the countryside rather than as
a body of witnesses’ (p. 129 in [2]). That is, when the jury spoke its verdict, this
represented not so much a reflection of what happened, and the role of the accused
in that incident, as it was a reflection of the particular values of the community and
its collective judgments about the nature of that incident and the community
standing of the individuals involved. This is borne out by the fact that the trial jury
soon became seen as a potential instrument of oppression (p. 129 in [2])—capable
of convicting an accused who was factually non-culpable but communally disliked.
Indeed, in the period when the jury process was developing, an accused could not be
tried by a jury without his consent; for an accused to do so came to be known as
‘putting oneself on the country’ (p. 129 in [2]). Literally, the accused thereby placed
his fate in the hands of the community, with all its particular values, perceptions,
biases, and practices coming to bear on its decision.
Given the reputation that the trial jury in England soon earned, and given the
particular structure of the trial process, what must have been the nature of the
inquiry in which the trial jury engaged itself? Once the court had charged the jury,
what questions did the jury address? Most obviously, of course, is what might be
called the What question—what do we know of particular acts that properly can be
attributed to the accused? That is, what happened? This is the inquiry that is
immediately responsive to the charge of the court. It is the question that is embodied
in the formal model of the jury function. It is the sole question that the jury would
ask if it spoke solely ‘as a body of witnesses.’
The jury, however, ‘spoke as representative of the countryside.’ As a
representative of the local community, it would ask the Who question—who is
the accused within the matrix of values and social relationships of the community?
Is he a well-liked person of standing who has perhaps made a mistake and ought to
be forgiven? Or is he a habitual malefactor, generally disliked, perhaps not involved
in the criminal event in issue, but a fit object for oppression?
And, as representative of the countryside, the jury was free to ask the Whether
question—whether, given the jurors’ view, within the context of the community’s
values, the acts or omissions of which the accused is charged ought of themselves be
punishable. That is, although, as a consequence of the structure of the process, the
reach of the King’s law is extended to the countryside, ought the jury exercise its
power, which also is a consequence of the structure of the process, to prevent the

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application of the King’s law in the case at hand? Ought the jury, behind the veil of
secret deliberations and the general verdict, to reject for the present occasion the
thrust of the substance of the King’s law to define the event in issue as criminal in
nature?
Further, the jury might address the matter of Punishment. They might have found
that the accused is culpable for the acts spelled out in the charge. They might agree
that these acts, as a general matter, are criminal in nature, deserving of punishment.
They might agree that the personal attributes and character of the accused do not
provide a basis for exempting him from punishment. Yet, they might also find
mitigating circumstances in the case such that the punishment prescribed by the
king’s law and to be carried out by the king’s officials, were they to return a verdict
of guilt, would be too severe.
Finally, the jury was free to ask the question of Authority—ought the jury, in the
context of the particular case, acquiesce in the exercise, by a physically remote and
culturally alien sovereign, of the power to visit punishment on a member of the
jury’s community? That is, drawing on the proposition that the power to punish
derives from moral standing, does the Crown have the moral authority to visit
punishment in this case? This is the matter brought vividly to the fore by the story of
the woman taken in adultery in the Gospel of John (Chap. 8, pp. 1–11 in [9])—‘Let
him who is without sin among you be the first to throw a stone at her.’ Only the
morally blameless have the authority to visit punishment on another.
As a general matter, a jury would have a strong interest in seeing that criminal
activity within its community be punished. Yet, in a particular case, other
considerations might come into play. Given the structure of the trial process, a jury
had the power to return a verdict of not guilty on the basis of such considerations even
when the jury had found that the defendant was culpable for the acts for which he was
charged—that is, even when the jury answered the What question in the affirmative.
Over the intervening centuries, many aspects of the criminal trial have changed.
Perhaps most importantly, the jury has become passive (rather than proactive) as a
prosecuting attorney, on behalf of the Crown, took on the function of introducing
evidence and testimony. In a landmark decision in 1670, Bushell’s Case [10],
however, Lord Chief Justice John Vaughan ratified the defining aspects of the jury
system—that deliberations be carried out in secret, that the jury’s decision be
announced only through the general verdict, and that the jurors cannot be punished
for the substance of their verdict, only for some demonstrated corruption. Despite
substantial change in the criminal trial process, then, the present-day trial jury, as it
was for its thirteenth century ancestor, is not obliged to reveal what factual
determinations it may have made or what matters it may have considered in
reaching its decision. Thus, the present-day criminal jury is left to carry out its
deliberations much as its medieval ancestor did.
The question then arises as to how a present-day jury actually does deliberate. In
recent years, video recordings of the jury deliberations in actual criminal trials1 have

1
Previously, jury deliberations have been available only for mock trials. Because no one’s life or fortune
is actually at stake for such jurors, these deliberations cannot accurately reveal how jurors deliberate in
actual trials.

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become available [11–13]. These materials make it clear that present-day juries,
carrying out their function behind closed doors and required to return their verdict in
the general form, not infrequently take the opportunity to address some or all of the
full range of questions that the early English juries addressed.2 And this presents an
opportunity for the trial attorney. Within the limits on argumentation that trial
judges enforce [14, 15], the attorney can, at least by implication, address all of these
several questions. In terms of the formal account of the jury function, embodied in
the deductive syllogism, the actual logical form that the criminal jury potentially
can follow is far different. Thus, it will be worthwhile to turn to a consideration of
the matter of the logic of decision making and, as well, the corollary matter of the
logic of argumentation.

3 Argumentation

3.1 Logic

In order to pursue these matters, consider a concept of mind and consciousness that
is emerging in the fields of neuroscience, anthropology, philosophy, and cognitive
psychology. What follows is not an answer to the endemically contested and
unanswered question: What is consciousness? Instead, it is a functional description
of what scientific inquiry seems to be suggesting is the cognitive function that
consciousness makes possible.
First, consider this taxonomy offered by Walker Percy, the late novelist,
philosopher,3 and onetime physician:
Cosmos: The universe, all of creation (pp. 86–88 in [18]).
Environment:
The environment of an organism is those elements of the Cosmos which affect
the organism significantly (Saturn does not) and to which the organism either
is genetically coded to respond or has learned to respond. There are many gaps
in an environment, i.e., there are elements which are without significant effect.
A honey bee takes account of the bee dance of another bee indicating the
direction and distance of a nectar source but not a grouse dance (p. 100 in
[18]).
World: ‘The sign user has a world’ (p. 100 in [18]).
The world is segmented and named by language. All perceived objects and
actions and qualities are named. Even the gaps are named—by the word gaps.
An African Bushman has hundreds of names for plants which are either
noxious or medicinally beneficial. But he also has a word bush to name all
other plants. The Cosmos is accounted for willy-nilly, rightly or wrongly,

2
In the trial depicted in Inside the Jury Room, [11] the jury expressly considered all of these potential
questions, and expressly considered the matter of the proper function of the jury as well.
3
Though formally trained as a physician and not as a philosopher, Percy published a not insubstantial
body of essays, several of which appeared in professional philosophical journals; these essays are
included in two collections [16, 17].

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mythically or scientifically, its past, present, and future. All men in all cultures
know what is under the earth, what is above the earth, and where the Cosmos
came from (pp. 100–101 in [18]).
Percy continues:
The environment has gaps. But the world of the sign-user is a totality. The
Cosmos is totally construed by signs, whether the signs be the myth of Tiamat,
Newtonian cosmology, or through the auspices of such popular signifiers as
‘outer space’, ‘out there’, ‘the heavens’, ‘the sky’, ‘stars’, and so on. Not all
items of an environment are part of the world. A noxious element—say, an
increase in ultraviolet radiation—is a significant environmental factor and may
cause skin cancer. But it is unknown to the patient and not part of his world.
But the signs unicorn and boogerman may be very much a part of a person’s
world and yet have no known counterpart in the Cosmos (p. 101 in [18]).
The Environment of an organism is dyadic in nature, a dynamic milieu of action and
reaction. The World of an organism is triadic in nature, a dynamic milieu of
‘aboutness’, the meaning of the Cosmos. It is a cognitive construct, a product of the
mind, that is abstracted from the flood of sensations that flow to the sensory organs
of the individual human.
The anthropologist Mary Douglas provides insight into the workings of this
ongoing interpretive process:
Anything whatsoever that is perceived at all must pass by perceptual controls.
In the sifting process something is admitted, something rejected and
something supplemented to make the event cognizable. The process is largely
cultural. A cultural bias puts moral problems under a particular light. Once
shaped, the individual choices come catalogued according to the structuring of
consciousness, which is far from being a private affair (p. 1 in [19]).
What neuroscience and cognitive psychology are beginning to reveal is that
consciousness, and effective cognitive function, come about by the adoption by the
human mind of a set of fundamental values that has the function of the structuring of
consciousness [20–24]. These values are adopted through the processes of the
higher emotions in the human brain. And it is these values that provide the
perceptual controls, the cultural bias or cosmology, to which Mary Douglas refers.
Moreover, as her account implies, there is no single set of perceptual controls that is
available; instead, there is a plurality of value sets, or cosmologies.4
4
In semiotic terms, the cosmology provides the content of the Ground in Charles Sanders Peirce’s
conception of the sign:
A sign or representamen, is something which stands to somebody for something in some respect or
capacity.… The sign stands for something, its object. It stands for that object, not in all respects,
but in reference to a sort of idea… called the ground of the representamen [25].
Peirce’s seminal insight is that the linguistic sign is triadic rather than dyadic in nature, as it is in the
semiotic concepts of De Saussure [26]. In terms of theory, as distinguished from function, the Ground is a
necessary element because, for the sign to be triadic, four elements are required. Topologically, it is
helpful to think of the sign as the inner space bounded by a tetrahedron, with the four faces consisting of
representamen, interpretant, object, and ground.

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3.1.1 Individuality

In this cosmology, interpersonal relations are understood as transactional in nature

rather than carried out in the milieu of a formal or informal group (p. 4 in [19]). The
individual exhibits weak conformity to a priori rules and principles, and observes
few social boundaries [27]. Humans by nature are understood as self-seeking, and
human nature is not malleable by social institutions. Thus, the social order is best
organized through competitive institutional arrangements (pp. 34–35 in [28]), by
which the individual bears alone the consequences of success or failure (p. 21 in
[27]).

3.1.2 Naturalism

In this cosmology, the individual leads an atomistic existence, eschewing

membership in formal or informal groups. The individual nevertheless is closely
bound by an a priori body of rules and principles (p. 4 in [19]), ones that derive from
the implicit laws of a natural order to which human interests or aspirations are
irrelevant. Thus, the individual has little autonomy (p. 20 in [27]). The natural world
is understood as capricious, such that human relationships with the natural world
are, in a fundamental sense, a lottery. The natural order cannot be managed;
individuals instead can only cope with erratic events (pp. 26–27 in [27]). Human
nature is understood as unpredictable; thus, others are not to be trusted (p. 35 in
[27]).

3.1.3 Hierarchy

In this cosmology, the individual understands existence as properly carried out in a

hierarchical milieu in which loyalty to the institution is rewarded (p. 5 in [19]), and
the individual achieves self-definition through the institution (p. 20 in [27]). The
‘individual knows his place in a world that is securely bounded and stratified’ (p. 20
in [27]). The institution is determined by rules and principles developed and
imposed by the institutional elite in order to maintain the integrity of the institution
(p. 4 in [19]). Humans are born sinful, although they are redeemable by morally
good institutions (p. 35 in [28]).

3.1.4 Communality

In this cosmology, the individual understands that existence is properly carried out
in the relational milieu of a sharply bounded group (p. 4 in [19]), and that the
individual achieves self-definition through the group (p. 19 in [27]). Relationships
within the group, however, are not bound by formal, a priori rules and principles.
Instead, status within the group is fluid and ambiguous, subject to an ongoing
process of implied negotiation (p. 4 in [19], p. 19 in [27]). Humans are born good,
although they are corruptible by morally bad institutions (p. 34 in [28]).
Thus, in the taxonomy of Walker Percy, the Environment of the individual is a
milieu of fact. The cognitive World of the individual is a milieu of meaning. It is a

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milieu that comes into being through the value-laden perceptual controls, or
cosmology, that frame the individual’s sensory experience of her Environment. And
this meaning is highly charged emotionally because this cosmology is adopted and
held through the brain processes of the higher emotions.
This brief survey of what is being learned about cognitive function provides the
basis for understanding the reasoning processes of the mind, how an individual
solves a problem or reaches a decision. Consider the model of deductive reasoning
that describes the formal function of the jury—the Rule, applied to the Case,
determines the Result. In actuality, the individual necessarily approaches the
question to be determined through whichever cosmology-based cognitive frame that
she might hold. She thereby, typically subconsciously, frames the question within
the value set of her particular cosmology.
Decision making necessarily is a matter of choice—a choice among competing
values. Thus, when she frames the question within a particular set of values, this
step, of itself, determines the choice. That is, placing the issue within a cognitive
frame determines the Result.
With the Result thus determined, there must then be a Rule—a major premise—
which, when applied to the Case, would yield that frame-determined Result. The
Result entails a Rule. And that Rule, announced and applied to the Case, offers a
justification for the Result. The step of framing consists of a logic of determination;
the deductive step consists of a logic of justification.5
The logical form of this decision making process is abduction:
Abduction
Rule

Case

F Result

The abductive process captures how the human mind reaches a decision, whether
that decision maker is a judge, a juror, or a typical person making the major and
minor decisions that mark the course of a life. And this provides a basis for
understanding the function of argumentation in the process of inducing the audience
of a speaker to reach the Result desired by the speaker. And that leads to a
consideration of Rhetoric.

5
John Dewey has described this abductive process in terms of the Logic of Consequences and the Logic
of Antecedents [29]. The Logic of Consequences denotes the process of framing that determines the
Result and entails the Rule. The Logic of Antecedents denotes the deductive application of the now-
antecedent Rule to the Case, thereby justifying the Result.

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3.2 Rhetoric

Aristotle6 defined rhetoric as ‘an ability, in each [particular] case, to see the
available means of persuasion’ (p. 37 in [30]). In his theory, there are three means of
persuasion. Logos is the syllogism.7 Ethos is ‘the element of a speech that presents
the speaker as trustworthy; or, from the point of view of the hearer, as the element
that makes the audience regard the speaker as trustworthy’ (p. 33 in [31]).8 Pathos is
persuasion through the emotions. This occurs when the hearers ‘are led to feel
emotion by the speech; for we do not give the same judgment when grieved and
rejoicing or when being friendly or hostile’ (p. 39 in [30]).
Much the same taxonomy is contained in the rhetorical theories of Cicero9 (pp.
53–54, 172–180 in [32]) and Quintilian10 (pp. 325, 355–357 in [33]; pp. 49–57 in
[34]). By the time of Quintilian, however, ethos and pathos are beginning to take on
the meaning of stylistics rather than of substance [35]. In the medieval trivium,11
argumentation is split, with logos subsumed under Logic, and ethos and pathos
subsumed under Rhetoric and treated primarily as matters of style. Today, in
everyday parlance, the concept of rhetoric carries a pejorative cast, as shown by the
common locutions ‘mere rhetoric’ and ‘empty rhetoric’.12
A substantially different concept of rhetoric emerges by going back in time from
Aristotle rather than forward in time. Gorgias,13 a native of the Greek city of
Leontinoi in Sicily and a student of the philosopher Empedocles of Akragas,14 went
to Athens in 427 BCE as ambassador to plead the case of Leontinoi for military
assistance against the aggressively expansionist policies of Syracuse. Because of the
considerable oratorical skills that he displayed on this mission, he is reported to
have become an instant celebrity. From this success, he embarked on a long career
as a teacher of rhetoric.
Gorgias must have been a success at his ambassadorial mission because he was
unusually persuasive. And he was persuasive; Athens agreed to provide the requested
assistance, the first step in what became the ultimately disastrous Sicilian campaign
[38]. Thus, the question—what was it about his argumentation that was so
noteworthily persuasive? Very few of the works of Gorgias have survived, and none
that are actually about rhetoric, as distinguished from works that are examples of

6
384–322 BCE.
7
The deductive syllogism is the enthymeme; the inductive syllogism is the paradigm (p. 40 in [30]).
8
There is persuasion ‘‘through character whenever the speech is spoken in such a way as to make the
speaker worthy of credence’’ (p. 38 in [30]).
9
106–143 BCE.
10
35–100 CE.
11
Logic, Grammar, and Rhetoric.
12
E.g., ‘‘language designed to have a persuasive or impressive effect on its audience, but is often
regarded as lacking in sincerity or meaningful content: all we have from the opposition is empty rhetoric.’’
(p. 1461 in [36]); ‘‘(in writing or speech) the undue use of exaggeration or display; bombast’’ (p. 1650 in
[37]).
13
ca. 483–375 BCE.
14
Fl. ca. 450 BCE.

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rhetoric.15 And much of what comes down to the present day about his rhetorical
theories is set out in the substantial caricature that appears in Plato’s dialog, Gorgias.
One surviving writing, the Encomium of Helen, is especially revealing, however,
of his concept of rhetoric. This short piece, probably composed as an exercise or
demonstration piece in his school of rhetoric, offers a defense of Helen, wife of
Menelaus, king of Lacedaemon, who famously was seduced and abducted by a
visiting dignitary, Paris of Troy. A detailed consideration of Helen reveals that
Gorgias’s concept of rhetoric is substantially different from the rhetoric of Aristotle.
What is immediately striking about Helen is that it presents not just a single
argument in Helen’s defense but instead four distinct arguments; and each of these
arguments is clearly based on one of the four fundamental cosmologies. From this, it
can be understood that what Aristotle presented as the three modes of argumentation
takes on a different meaning and function in the rhetoric of Gorgias. Logos,
similarly to Aristotle’s Rhetoric, appears to be the deductive syllogism, set out
expressly or by strong implication. Ethos possibly could be, as in Aristotle’s
Rhetoric, the matter of the rhetor establishing himself as a person of credibility. In
Helen, however, Gorgias does not expend any effort in trying to establish his
credibility. And he is scrupulously honest about the fact that Helen abandoned her
husband, the king, for an honored alien guest; he does not shrink from this damning
fact. Thus, it would seem that, for Gorgias, ethos is the matter of being credible as
distinguished from creating the appearance of credibility.
In the Rhetoric of Aristotle, pathos is the matter of engaging the emotions of the
audience by the use of charged locution that arouses the primary emotions, such as
anger or fear.16 In Helen, Gorgias engages the emotions of the audience by grounding
his arguments in the particular cosmologies. Each individual necessarily holds a
cosmology adopted in the processes of the higher emotions.17 Thus, if the hearer holds
the cosmology that the rhetor offers, then the choice already made in the processes of
her higher emotions is ratified. If the hearer holds a different cosmology, then the
choice already made is challenged. Either way, it is her higher emotions that are
engaged. Thus, the emotions of the hearer are engaged in a way that is far different
from the way in which emotions are engaged in Aristotle’s concept of pathos.
In the rhetoric of Gorgias, then, pathos correlates with abductive framing—the
argument is grounded in a particular cosmology; thereby, the cosmology is proposed
to the audience and, necessarily, the higher emotions of the audience are engaged.
As a matter of technique, as demonstrated in Helen, the cosmology is offered not
expressly but instead implicitly. The hearer will then tend subconsciously to fill in
the express elements of the argument with the elements of the cosmology; the hearer
thereby becomes complicit in the rhetor’s act of framing. Because the substance of

15
These are the Encomium of Helen (a defense of Helen of Lacedaemon, abducted by Paris of Troy)
[39], A Defense of Palamedes (a defense of the mythical figure Palamedes against Odysseus’s charge of
treason) [40], Epitaphios (a fragment of a funeral oration for Athenian warriors lost in battle) [41], On the
Non-existent (a paraphrase of a philosophical disquisition on what became known as the Platonic forms)
[42].
16
These arise in the limbic system in the brain stem (pp. 131–134 in [20]).
17
These arise in the prefrontal cortex, which is involved with the adoption of the cosmology (pp. 134–
139 in [20]).

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the cosmological frame determines the thrust of the argument, once the hearer buys
into the cosmology offered by the rhetor, the argument is carried.
It is now possible to understand why the argumentation of Gorgias was so
persuasive. His concept of rhetoric exactly captures the working of the human mind
as it carries out its fundamental and endemic function of meaning creation. Logos,
ethos, and pathos, which in the rhetoric of Aristotle are presented as distinct modes
of argumentation, are, in the rhetoric of Gorgias, the necessary constituent elements
of argument itself, forming the template for the efficacious, well-fashioned,
ethically rigorous argument. For Gorgias, rhetoric, the essence of argumentation,
carries out the protean function of meaning-creation.

4 Cases

Consider now three noteworthy criminal trials. In each, argumentation by trial

counsel for one side exemplified the template of argumentation offered by the
Rhetoric of Gorgias. In each, the question that the jury actually appeared to consider
in reaching its verdict was shifted from the formal question posed by the instructions
by the trial judge. In each, the verdict was favorable to the cause of the trial counsel
who performed as a Gorgian rhetor.

4.1 Commonwealth v. Woodward (Massachusetts Superior Court 1997)

In June 1996, Louise Woodward arrived in the United States to seek a position as an
au pair. In November, Deborah and Sunil Eappen, both physicians, engaged her to
help care for their two children, Matthew, an infant, and Brendan, who was then
aged two and a half. In the late afternoon of February 4, 1997, Louise Woodward
called the 911 emergency number to report that Matthew had stopped breathing.
Matthew was taken to Boston Children’s Hospital, where he underwent surgery for
severe brain hemorrhaging apparently associated with a substantial skull fracture.
He emerged from surgery in a coma. The next day, Louise Woodward was arrested
on a charge of attempted murder for inflicting what ultimately were fatal injuries on
Matthew on February 4, and held on bond of one million dollars. On February 9,
Matthew died after being taken off life support. On March 5, 1997, a grand jury
indicted Woodward for murder in the first degree.
The trial began on October 7, 1997. There were two principal issues—whether
certain statements that Woodward had made to police on the evening of February 4,
suggesting that she had been ‘a little rough’ with Matthew that day, demonstrated
that she had caused his injuries; and whether scientific investigation demonstrated
that the injuries had been incurred at a substantially earlier date. Jury deliberations
began on October 28. On October 30, after 27 h of deliberation, the jury returned a
verdict of guilt of murder in the second degree. The next day, trial judge Hiller
Zobel imposed a mandatory sentence of life with no chance of parole for fifteen
years. Then, on November 10, Judge Zobel, in response to a defense motion to
reduce the verdict, announced his Order reducing the verdict of second degree
murder to manslaughter and sentencing Woodward to time already served.

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The trial itself was a newsworthy event, particularly in the United Kingdom;
reporters from several English, Irish, and Scottish newspapers covered the trial. It was
not, however, until the jury returned its verdict that it became a lead story nationally in
the United States. It is accurate to say that the defense had laid a strong basis for
reasonable doubt by introducing substantial evidence and testimony that Matthew’s
injuries to his skull had been incurred as much as several weeks before February 4.
Thus, there was a general expectation among trial observers that the jury would return
a verdict of acquittal. When the jury returned its surprising verdict, a body of opinion
quickly formed that there had been a miscarriage of justice. A reporter from The
Scotsman opined that the jury had made a scapegoat of Louise Woodward [43].
Several of the jurors subsequently spoke with the ever-aggressive press about the
course of their deliberations and the conclusions that they had reached. It appears
that the first vote that the jury took was seven to five in favor of acquittal [44].
Subsequently, the jurors voted an even split, then eight to four in favor of guilt, and
then ten to two in favor of guilt. At that point, the majority subjected the two
holdouts to considerable pressure. One of them, Tracy Mannix, observed, ‘It was the
toughest time of my life. I’ve never known pressure like it’ [45]. Finally, the two
holdouts, in their words, ‘crumbled’ [45], and the jury reached the unanimity
required for a verdict of guilt.
Commenting on the verdict, juror Jodie Garber observed that, ‘nobody liked the
finding that we felt compelled to reach’ [46]. Juror Stephen Caldwell remarked, ‘We
were in a no-win situation here. I think if other choices were available to us, then
potentially manslaughter may have been the verdict’ [44]. Another juror remarked,
anonymously, that the defense theory was not supported by the evidence [47].
Another anonymous juror stated, ‘I wasn’t going to leave that courthouse without
coming to a decision. We had the death of a child to deal with, and I think we all
wanted it resolved’ [48]. And Stephen Caldwell stated, ‘There’s no way we could
face the Eappens and the citizens of the Commonwealth and say, We think she did
it, but we’re going to let her go’ [46].
These comments are quite revealing—they indicate that the jury departed from
the judge’s instructions, which provided that the burden is on the prosecution to
prove its case beyond a reasonable doubt. That ‘the defense was not supported by
the evidence’ suggests that the jury believed that the defense had failed to prove its
case. Because, however, the burden of persuasion is on the prosecution, then the
defense need not prove anything. Moreover, if the jury believed that the proper
outcome was guilt of manslaughter, then the jury must have had at least reasonable
doubt that Louise Woodward was guilty of murder.
An analysis of the revealing comments of the several jurors raises two interesting
questions. First, what was the nature of the Woodward jury’s departure from the
instructions—what exogenous consideration did those jurors bring to their
deliberations? Second, why did they bring this exogenous consideration into their
deliberations? I will explore these questions by pursuing two salient general
reactions by observers to the events of the trial—that the closing argument of the
prosecutor was remarkably compelling, and that the jury appeared to have made a
scapegoat of Louise Woodward.

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36 D. J. Brion

Journalists and lawyers uniformly praised the quality of prosecutor Gerard

Leone’s closing argument. A reporter for The Sunday Times called it ‘a tour de force’
[47]. A veteran Boston defense attorney characterized it as ‘marvelous’, ‘brilliant’,
and ‘logical’ [48]. A reporter for The Glasgow Herald pronounced it ‘clinching’ [49].
Barry Scheck, arguing for the defense, focused on the medical testimony in
technical terms, attempting to demonstrate that the injuries that caused Matthew
Eappen’s death could not have occurred on February 4. Gerard Leone, the
prosecutor, took a greatly different approach. He presented the physical evidence
not in technical terms, but instead in graphic terms, focusing especially on the gory
scene during the surgery on Matthew, that emphasized the horrifying circumstances
of the infant’s death. He also situated Matthew Eappen in the immediate community
of his family, in the larger community of the police detectives who investigated the
event, and in the still larger Boston medical community, whose members treated
infant Matthew and strived to save his life. Repeatedly, Leone referred to Louise
Woodward as an alien to the community of infant Matthew, and he portrayed her as
a devious, calculating, and dishonest outsider.
None of Leone’s points is the least bit relevant to the formal question before the
jurors—do they find beyond a reasonable doubt that Woodward is guilty of murder
by her actions on February 4? Leone’s argument, however, was framed in the
cosmology of Communality. Within this cosmology, maintaining the cohesion of
the group is of fundamental importance (pp. 19–20 in [19], [50], [51]). Unlike
within the cosmology of Hierarchy, however, there is available no structure of rules
and principles capable of maintaining group cohesion. The only way in which to
maintain this cohesion is by the urgent ongoing task of maintaining the psychic
boundary of the group—defining the boundary in terms of a contrast between
the group members, We, good per se, with outsiders, They, bad per se, and guarding
the boundary against incursion. Thus, the salient points that Leone raised—the
horrifying circumstances of Matthew’s death, the community in which the infant
was situated, Louise Woodward’s alien status, and her supposedly depraved
character—irrelevant to the formal question before the jury, are altogether relevant
to the real question that Leone’s argument posed.
The implicit thrust of his argument, within its cognitive frame of Communality,
was that a terrible evil had come into infant Matthew’s community, that the task of
the jury was to act to purge that community of this evil, and that Louise Woodward
was a highly fit candidate to be used to carry out this process. His argument, that is,
was that the jury’s function was not to determine whether Louise Woodward was
culpable for the infant’s death; instead, it was to determine whether she ought to
bear responsibility for that death.18
18
In 1999, the CBS program 60 Minutes presented a segment that provided the results of a retrospective
investigation into the circumstances of Matthew Eappen’s death, an investigation that revealed that, in
addition to the partially healed skull fracture that was discovered during the surgery on February 4, the
infant had, over the previous several weeks, suffered numerous other injuries, including broken ribs, a
broken wrist, and a severe blow to the abdomen; and that the immediate cause of death was strangulation
that occurred sometime in the 48 h previous to the onset of convulsions on February 4, a period during the
major portion of which, being a weekend, the infant was not in Louise Woodward’s care [52]. It is a
matter of curiosity that Matthew’s parents, both physicians, did not seem to have displayed an awareness
of any of the series of injuries that he had suffered.

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Trial Argumentation 37

And indeed, given their revealing comments afterwards, the jury acted as if, by
their verdict, they were indeed carrying out the scapegoat ritual, a phenomenon that
is endemic throughout human history (pp. 655–675 in [53], [54]). Juror Stephen
Caldwell, assertion—‘There’s no way we could face the Eappens and the citizens of
the Commonwealth and say, We think she did it, but we’re going to let her go.’—
makes clear that the jury acutely perceived their function to be to act on behalf of
Matthew Eappen’s community. As one juror asserted, in defense of the verdict, ‘I
wasn’t going to leave that courthouse without coming to a decision. We had the
death of a child to deal with, and I think we all wanted it resolved’ [48]. A verdict of
not guilty would amount to ‘coming to a decision’ just as much as a verdict of guilty
would. A verdict of not guilty would not, however, ‘resolve’ the matter if the
question to be resolved is one of bearing responsibility rather than one of
culpability.
The Louise Woodward jurors, in the crucible of their intense deliberations,
constituted themselves, for that time and for that place, into a single cosmology.
And, by the light of the cosmology that they ultimately chose, they constructed a
particular truth about those tragic events on February 4, 1997. The legal meaning of
those events was embodied in the verdict, guilt of murder in the second degree. The
constructed meaning of those events, induced by the powerful argumentation of
Gerard Leone, was that great evil had come into their community, that the breach of
the community boundary must be healed, and that evil must be purged by
constituting Louise Woodward a scapegoat.

4.2 People v. Simpson (California Superior Court 1995)

Orenthal James Simpson was tried for the murder of his estranged wife and her
friend, Ronald Goldman.19 There was overwhelming physical evidence at the scene
of the killings, in Simpson’s residence, and in Simpson’s sport utility vehicle, all
pointing to his culpability. And Simpson could not credibly account for his
whereabouts at the time of the killings.
During the evidence and testimony phase of the trial, the defense gave central
attention to the physical evidence introduced by the prosecution. The defense,
however, also introduced evidence and testimony about other matters. A rookie
crime scene investigator had made technical mistakes in collecting, labeling, or
bagging a small portion of the items of physical evidence found at the crime scene.
One of the two lead investigative detectives, Dale Van Atta, was shown to have a
generally untrustworthy character. He also could not account for a small vial of
blood taken at the crime scene, with the suggestion that he could have used it to add
to the evidence of the blood of Simpson’s wife and her friend found at Simpson’s
residence or in his vehicle. And evidence was introduced of racist remarks made in
the past by the other lead investigating detective, Mark Fuhrman, a matter about
which he was shown to be untruthful under cross-examination.

19
A comprehensive set of materials on the O.J. Simpson trial, including background materials and
relevant documents, is collected at the website of the University of Missouri-Kansas City School of Law
[55].

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38 D. J. Brion

In his closing argument, defense counsel Johnnie Cochran gave considerable

attention to whether the prosecution had demonstrated Simpson’s guilt beyond a
reasonable doubt. He also, however, repeatedly offered the refrain, ‘Do the right
thing.’ This refrain can be understood on two levels. On the more immediate level, it
can be taken to be an exhortation about the physical evidence, that it was not
sufficiently probative of Simpson’s culpability for the deaths of Nicole Brown
Simpson and Ronald Goldman.
Consider, however, the thrust of this refrain—it is couched in normative terms,
‘the right thing’. This refrain thus raises a moral question that the jury’s verdict
must account for moral considerations as well as for factual considerations. What,
however, is the salient moral consideration involved in any criminal trial?
Return to the late twelfth and early thirteenth centuries and the political
dimension surrounding the institution of the criminal jury—the Angevin Kings were
faced with the problem of extending and maintaining their authority throughout the
realm. They did so by seeking to make the local communities complicit in their
rendering of justice. And the rendering of justice to all their subjects was a central
dimension of the medieval concept of kingship that the king carried out a moral
function by way of exercising his formal powers. The authority of the king, then,
necessarily rested on moral foundations.
If the local community is to be complicit in this royal function of rendering
justice, then this royal authority in the particular case must proceed from a moral
position. Johnnie Cochran’s argument is framed in the cosmology of Hierarchy—
the sovereign has authority over its subjects, with the power to punish in appropriate
circumstances. This authority rests, however, on a moral foundation. If this moral
foundation is absent in the particular case, then the authority is undermined, and the
local community must resist its exercise.
The matters that the defense raised at trial—the evasiveness of Detective Dale
Van Atta and the suggestion that he had doctored some of the physical evidence, the
mishandling of some of the physical evidence by the probationary crime scene
investigator, and the overt racism and dishonesty of Detective Mark Fuhrman—
were only in part relevant to the formal question: did Simpson kill Nicole Brown
Simpson and Ronald Goldman? These matters, however, all were altogether
relevant to whether the State carried moral authority with regard to the investigation
into these two killings.
At the end of a trial spanning several months, the Simpson jury returned a verdict
of not guilty after only two and a half hours of deliberations. In the obligatory
interviews afterward, the statements of the jurors, hardly surprisingly, had
something of a rehearsed quality, expressing in a general way a conclusion of
reasonable doubt [56–62]. When pressed for more specific findings, the jurors
pointed to the lack of credibility on the part of the prosecution witnesses, in
particular Detectives Van Atta and Fuhrman. While this goes to the prosecution
testimony, it is not directly responsive to the truly massive physical evidence in
three different places introduced by the prosecution. Thus, it is possible to discern a
subtext to their statements, echoing the subtext of the defense closing argument, that
the jurors had rejected the moral authority of the State to punish in this instance

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because of the defense demonstration of technical incompetence in the crime scene

investigation and the moral failings of the investigating detectives.
Henry Louis Gates, Jr. eloquently addresses this matter: ‘As a symbol of popular
and local sovereignty, citizen juries confer legitimacy upon the most invasive thing
a state can do: strip a person of life, liberty, and property’ [63]. In this trial, the jury
refused to confer legitimacy on the performance of the State that, in Johnnie
Cochran’s vivid portrayal, was marked with corruption, moral failings, and
incompetence.

4.3 Rex v. Zenger (New York Supreme Court of Judicature 1735)

In 1732, William Cosby arrived in the New York Colony as the newly-appointed
royal governor [64–67]. He soon turned out to be both corrupt and autocratic. John
Peter Zenger, a German immigrant, was at the time a struggling printer in New York
City. Three of Cosby’s political opponents provided the financial backing for
Zenger to begin publishing, in November 1722, a weekly newspaper, The New York
Weekly Journal, for which the three would write as well—Lewis Morris, who had
been dismissed as Chief Justice in August, and two prominent New York attorneys,
James Alexander and William Smith.
A considerable portion of the content of The New York Weekly Journal consisted
of increasingly open political attacks on Cosby and those politically allied with him,
attacks that were by turn satirical, caustic, and bawdy [68]. Eventually, in November
1734, Cosby had Zenger arrested on a charge of seditious libel, a crime generally
defined as publishing a writing that incites disaffection against the King or public
officials or public institutions. The gist of seditious libel is that it threatens to
endanger the foundations of government and public order.
Alexander and Smith took up Zenger’s legal defense. Their first move, in April
1735, was to challenge the commission of the two remaining justices of the
Supreme Court of Judicature as invalid. Chief Justice James De Lancey, who had
been appointed in place of Lewis Morris, whom Cosby had dismissed in 1733,
rejected the challenge and disbarred Alexander and Smith for contempt for pressing
the challenge. Cosby then appointed John Chambers, a young attorney affiliated
with the pro-Cosby party, to represent Zenger. In response, Alexander and Smith
procured Andrew Hamilton, a prominent lawyer in Philadelphia, to appear for
Zenger.
The trial opened in August 1735. A jury composed primarily of artisans and
modest tradesmen was seated [67]. Much of the trial proper was taken up with an
extended argument between Hamilton and the Attorney General, Richard Bradley,
over the nature of the crime and the process of trying it.20
Bradley argued for the formulation of seditious libel developed in the sixteenth
century by the Court of Star Chamber [68, 69] and followed by the English courts
thereafter [70, 71]. Under this formulation, the crime is made out if the published
material is seditious in nature; not in issue under this formulation was the truth or

20
In the aftermath of the trial, one of Zenger’s principal backers, James Alexander, published what
amounts almost to a stenographic account of the trial (pp. 41–105 in [68]).

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40 D. J. Brion

falsity of the material in question (p. 63 in [68]). Indeed, Bradley argued, if the
seditious libel were true, that would aggravate the offense (p. 62 in [68]).
Procedurally, the only issue for the jury was whether the accused had published the
material in question, and it was to return a special verdict on that issue—yes or no.
Whether the material in question was seditious in nature was a matter to be resolved
by the Court (p. 69 in [68]).
In response, Hamilton readily conceded that Zenger indeed had published the
material in issue, but that he had thereby committed no crime (p. 62 in [68]). He
argued that the proper formulation of the crime of seditious libel was that followed
by the English courts prior to the sixteenth century reformulation by the Court of
Star Chamber, by which falsity was an element of the crime (pp. 70–74 in [68]). He
called into question the precedential authority of the Star Chamber by pointing out
its notorious reputation as an instrument of oppression (pp. 66–67, 78–79 in [68]).
Hamilton also argued that the English courts had firmly established in the previous
century that the general verdict was the proper verdict form and that a jury cannot be
punished for the substance of its verdict (p. 93 in [68]). And Hamilton set the trial in
the context of the endemic conflict between liberty and oppression by arguing that
the people might best resist oppression through the exercise of a right to free speech;
by arguing that an attack on those in authority, if the allegations of oppression are
truthful is, far from being a crime, a virtuous act (p. 81 in [68]), and by situating
Zenger as a principal player in the ongoing struggle for freedom throughout English
history (pp. 96–99 in [68]).
In arguing that the truthfulness of a libel against the authorities aggravates the
offense of seditious libel, Attorney General Bradley was advancing the position that
it is an offense of itself to attempt to undermine the authority of those in a superior
position. That is, an attack on the authority of the State will likely be more
efficacious if it rests on assertions of factual matters that are truthful than if these
assertions are false. If a more efficacious attack is a worse offense than a less
efficacious attack, then the fundamental offense must be the undermining, of itself,
of the authority of the State. If hierarchical authority is of itself good, and to be
protected against any attempt to undermine it, then Bradley is grounding his
argument in the cosmology of Hierarchy. What might be branded as oppression by a
radical individualist is nothing other than the natural and necessary upward
distribution of power in the proper ordering of the State.
Hamilton, by his emphasis on such matters as a right to freedom of speech and
the independence of the jury, sought to argue that what was at stake in this trial was
the large matter of individual freedom. This thrust contrasted sharply with Attorney
General Bradley’s argument that the hierarchy of power and authority must be
upheld for its own sake, no matter how oppressive. Hamilton thereby deployed the
cosmology of Individuality in response to Bradley’s deployment of the cosmology
of Hierarchy.
Chief Justice De Lancey charged the jury on the basis of the Star Chamber
formulation of seditious libel (pp. 100–101 in [68]). The jury, well reminded by
Hamilton of its insulation from coercion and immunity from punishment, returned a
general verdict of not guilty (p. 101 in [68]). The Court had no choice but to accept
this verdict.

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Trial Argumentation 41

Unlike the present time, eighteenth-century jurors in newsworthy trials were not
the target of print and broadcast interviews in the aftermath of the trial. Thus, they
remain anonymous to observers of the present day. It is likely, however, that many
or most of them were immigrants to the New York Colony or the sons of
immigrants, individuals seeking religious freedom or escape from the hierarchical
societies of Europe. Hamilton’s arguments, expressed in the locution of liberty and
grounded in the cosmology of Individuality, seem to have fallen on receptive ears.
John Peter Zenger repeatedly published material, based on truthful allegations of
fact, that was highly critical of Governor Cosby, a high official of the Crown. He
was brought to trial on a charge of seditious libel. The fundamental question at trial
was: What is the legal meaning of those actions? According to the definition of
seditious libel developed by the Court of Star Chamber and subsequently followed
by the English Courts, the meaning of those actions is that they are criminal in
nature, deserving of punishment at the hands of the criminal justice process.
According to the argumentation of Andrew Hamilton, based on the cosmology of
Individuality, the meaning of these actions is that they are virtuous in nature, not
deserving of punishment.
Attorney General Bradley complained that many of the cases cited by Andrew
Hamilton were irrelevant to the issue before the Court; as James Alexander
summarized Bradley’s argument:
Here Mr. Attorney observed that Mr. Hamilton had gone very much out of the
way, and had made himself and the people very merry: But that he had been
citing cases not at all to the purpose; he said there was no such cause as Mr.
Bushel’s [10] or Sir Edward Hales’ [72] before the Court; and he could not
find out what the Court or the jury had to do with dispensations, riots or
unlawful assemblies21: All that the jury had to consider of was Mr. Zenger’s
printing and publishing two scandalous libels, which very highly reflected on
His Excellency and the principal men concerned in the administration of this
government, which is confessed (pp. 99–100 in [68]).
The formal issue before the Court, under the formulation of seditious libel of the
Court of Star Chamber, was whether John Peter Zenger had published the material
in question. And Bradley indeed was correct that Hamilton’s citations were
irrelevant to that issue. Hamilton’s argument, however, put a quite distinct matter in
issue—the validity of that formulation, given that it was the work of a court that had
regularly engaged in oppressive practices and the development of oppressive
doctrines. And, to that issue, Hamilton’s citations to judicial and royal oppression
were altogether relevant. And the jury, by its verdict, determined the meaning for
which Andrew Hamilton argued.
In each of these three cases, we see one of the attorneys successfully shifting the
formal question of WHAT, through pathos, to a far different question. In the case of
Louise Woodward, the prosecutor, implicitly deploying the cosmology of
Communality through pathos, induced the jury to determine its verdict by

21
The Star Chamber practice of initiating a criminal action by an information, brought by an oppressive
State official, rather than by indictment by a grand jury of the accused’s peers (pp. 88–89 in [68]).

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42 D. J. Brion

considering the WHO question. In the case of O.J. Simpson, defense counsel,
implicitly deploying the cosmology of Hierarchy through pathos, induced the jury to
determine its verdict by considering the AUTHORITY question. And in the case of
John Peter Zenger, defense counsel, implicitly deploying the cosmology of
Individuality through pathos, induced the jury to determine its verdict by
considering the WHETHER question.
By their successful argumentation, these attorneys gained favorable verdicts in
cases in which, had the jury proceeded under the formal model, the verdict ought to
have been adverse. In the case of Louise Woodward, the prosecutor gained a verdict
of guilt, although, formally, she was not guilty. In the case of O.J. Simpson, defense
counsel gained a verdict of not guilty, although, formally, he was guilty. And in the
case of John Peter Zenger, defense counsel gained a verdict of not guilty, although,
formally, he was guilty.

5 The Thesis Redux

In one sense, what I have presented in these pages is an extended exercise in the post
hoc fallacy. I argue that, in each of these three cases, attorney A framed her
argument in cosmology B in arguing for particular meaning C of the facts D to jury
E, and jury E, convinced by attorney A’s argument, indeed did determine meaning
C and returned verdict F, favorable to A’s cause. Thus, post hoc, ergo propter hoc.
In another sense, however, I have tried to offer an account of the workings of the
human mind and the mechanisms of rhetoric, properly understood, in order to
establish the connection between argument and verdict.

References

1. Green, Thomas. 1985. Verdict according to conscience. Chicago: University of Chicago Press.
2. Plucknett, Theodore F.T. 1956. A concise history of the common law, 5th ed. Boston: Little, Brown &
Co.
3. Groot, Roger D. 1988. The early-thirteenth century criminal jury. In Twelve good men and true, ed.
J.S. Cockburn and Thomas Green, 3–35. Princeton: Princeton University Press.
4. Groot, Roger D. 1982. The jury in private criminal accusations before 1215. American Journal of
Legal History 27: 113–141.
5. Groot, Roger D. 1982. The jury of presentment before 1215. American Journal of Legal History 26:
1–24.
6. Olson, Trisha. 2000. Of enchantment: The passing of the ordeals and the rise of the jury trial.
Syracuse Law Review 50: 109–196.
7. Holdsworth, W.S. 1927. A history of English law, vol. 3, 3rd ed. London: Metheun & Co.
8. Pollock, Frederick, and Frederic William Maitland. 1968. The history of English law before the time
of Edward I, vol. 2, 2nd ed. Cambridge: Cambridge University Press.
9. John. 1977. Gospel of John. In The New Oxford annotated bible, revised standard version. New York:
Oxford Univ. Press.
10. Bushell’s Case, C.P. 1670. Vaughan 135; Eng. Rep. 124: 1006.
11. PBS. 1985. Frontline: Inside the jury room.
12. CBS. 1997. CBS reports: Enter the jury room.
13. ABC. 2004. ABC news special: In the jury room.

123
Trial Argumentation 43

14. Anderson, Joseph F. Jr. 2002. The lost art: An advocate’s guide to effective closing argument, 2nd ed.
Columbia: South Carolina Bar.
15. Stein, Jacob A. 2005. Closing arguments: The art and the law, 2nd ed. St. Paul: Thompson/West.
16. Percy, Walker. 2000. The message in the bottle. New York: Farrar, Straus and Giroux.
17. Percy, Walker. 1991. Signposts in a strange land. New York: Farrar, Straus and Giroux.
18. Percy, Walker. 1983. Lost in the cosmos: The last self-help book. New York: Washington Square
Press.
19. Douglas, Mary. 1982. Introduction to grid/group analysis. In Essays in the sociology of perception,
ed. Mary Douglas, 1–8. London: Routledge & Kegan Paul.
20. Damasio, Antonio R. 1994. Descartes’ error. New York: G.P. Putnam’s Sons.
21. Edelman, Gerald M. 1992. Bright air, brilliant fire: On the matter of the mind. New York: Basic
Books.
22. Edelman, Gerald M., and Giulio Tononi. 2000. A universe of consciousness. New York: Basic Books.
23. Norretranders, Tor. 1998. The user illusion (trans: Sydenham, Jonathan). New York: Viking.
24. Goleman, Daniel. 1995. New York Times, C1, August 8.
25. Peirce, Charles Sanders. 1931–1938. Collected papers, vol. 2. Cambridge: Harvard University Press.
26. De Saussure, Ferdinand. 1959. In Course in general linguistics, ed. Charles Bally and Albert See-
hehaye. New York: Philosophical Library.
27. Douglas, Mary. 1978. Cultural bias: Occasional paper no. 34. London: Royal Anthropological
Institute.
28. Thompson, Michaels, et al. 1990. Cultural theory. Boulder: Westview Press.
29. Dewey, John. 1924. Logical method and law. Cornell Law Quarterly 10: 17–27.
30. Aristotle. 2007. On rhetoric (ed. and trans: Kennedy, George A.), 2nd ed. New York: Oxford
University Press.
31. Wisse, Jakob. 1989. Ethos and pathos from Aristotle to Cicero. Las Palmas: Adolf M. Hakkert.
32. Cicero, Marcus Tullius. 2001. On the ideal orator (ed. and trans: May, James M. and Jakob Wisse).
New York: Oxford University Press.
33. Quintilian, Marcus Fabius. 2001. The orator’s education (ed. and trans: Russell, Donald A.), vol. 2.
Cambridge: Harvard University Press.
34. Quintilian, Marcus Fabius. 2001. The orator’s education (ed. and trans: Russell, Donald A.), vol. 3.
Cambridge: Harvard University Press.
35. Gill, Christopher. 1984. The ethos/pathos distinction in rhetorical and literary criticism. Classical
Quarterly 34: 149–166.
36. Jewell, Elizabeth J., and Frank R. Abate (eds.). 2001. The New Oxford American Dictionary. New
York: Oxford University Press.
37. Steinmetz, Sol (ed.). 1998. Random house Webster’s unabridged Dictionary, 2nd ed. New York:
Random House.
38. Thucydides. 1996. The Pelopennesian War. In The landmark Thucydides, ed. Robert B. Strassler
(trans: Crawley, Richard). New York: Free Press.
39. Gorgias. 1972. Encomium of Helen. In The older sophists, ed. Rosamond Kent Sprague (trans:
Kennedy, George), 50–54. Columbia: University of South Carolina Press.
40. Gorgias. 1972. A defense of Palamedes. In The older sophists, ed. Rosamond Kent Sprague (trans:
Kennedy, George), 54–63. Columbia: University of South Carolina Press.
41. Gorgias. 1972. Epitaphios. In The older sophists, ed. Rosamond Kent Sprague (trans: Kennedy,
George), 48–49. Columbia: University of South Carolina Press.
42. Gorgias. 1972. On the non-existent. In The older solphists, ed. Rosamond Kent Sprague (trans:
Kennedy, George), 42–46. Columbia: University of South Carolina Press.
43. Cochrane, Lynn. 1997. Woodward case not yet proven. The Scotsman, 1, November 2.
44. Usburne, David. 1997. Woodward’s lawyers admit her lesser guilt. The Independent, 1, November 4.
45. Varadarajan. 1997. Jury was split over conviction. The Times, 1, November 3.
46. Hutchinson, Bill. 1997. Prosecutors will fight for jury’s verdict. The Boston Herald, 1, November 3.
47. Allen-Mills, Tony. 1997. Unbelieveable. The Sunday Times, 1, November 2.
48. Barnicle, Mike. 1997. ‘No place to go’ for jury, others. The Boston Globe, B2, November 2.
49. Boston, Keith Bruce. 1997. Modern-day witch trial that made gripping TV. The Glasgow Herald, 3,
November 1.
50. Douglas, Mary. 1966. Purity and danger. London: Routledge & Kegan Paul.
51. Douglas, Mary, and Aaron Wildavsky. 1982. Risk and culture. Berkeley: University of California
Press.

123
44 D. J. Brion

52. CBS. 1999. Sixty minutes: Case closed?

53. Frazer, James George. 1922. The golden bough: A study in magic and religion, abridged ed. New
York: Macmillan.
54. Girard, Rene. 1986. The scapegoat (trans: Freccero, Yvonne). Baltimore: Johns Hopkins University
Press.
55. O.J. Simpson Trial. 1995. Collected papers of the O.J. Simpson Trial. University of Missouri, Kansas
City School of Law Trials Website, http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/
simpson.htm.
56. Adams, Lorraine. 1995. Simpson jurors cite weak case, not ‘race card’. The Washington Post, A1,
October 5.
57. Bustos, Sergio R. 1995. Jurors explain verdict; prosecution failed to prove its case. Fort Lauderdale
Sun-Sentinel, 12A, October 5.
58. Campbell, Julia. 1995. Hispanic Simpson juror says race not an issue. The Houston Chronicle, 3,
October 10.
59. Egan, Timothy. 1995. The Simpson case: The jury. The New York Times, A1, October 5.
60. Gordon, George. 1995. O.J. Juror: He killed his wife. The Daily Mail (U.K.), 1, October 5.
61. Pertman, Adam. 1995. Jurors saw ineptitude, plot by police. The Boston Globe, 1, October 5.
62. Whittell, Giles, and Ian Brodie. 1995. OJ jury breaks promise of media silence. The Times (U.K.), 1,
October 5.
63. Gates, Henry Louis, Jr. 1997. Marketing justice: What, really, are jury trials for? The New Yorker,
11–12, February 24 and March 3.
64. Buranelli, Vincent. 1957. The trial of John Peter Zenger. Westport: Greenwood Press.
65. Putnam, William Lowell. 1997. John Peter Zenger and the fundamental freedom. London: McFarland
& Co.
66. Rutherfurd, Livingston. 1904/1963. John Peter Zenger: His press, his trial. Gloucester: Peter Smith.
67. Katz, Stanley N. 1963. Introduction. In A brief narrative of the case and trial of John Peter Zenger,
ed. Stanley N. Katz, 1–35. Cambridge: Belknap Press.
68. Alexander, James. 1963. In A brief narrative of the case and trial of John Peter Zenger, ed. Stanley
N. Katz. Cambridge: Belknap Press.
69. De Libellis Famosis. 1605. Star Ch. Coke 5: 125.
70. Seven Bishops’ Case. 1688. K.B. State Trials 4: 300.
71. Barnardiston’s Case. 1684. K.B. State Trials 3: 845.
72. Hales’s Case. 1686. K.B. State Trials 11: 1165.

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