Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 151 Issue: 241

December 09, 2005

Does 'Poetry' Have a Place in a Criminal Trial?

Today we are going to address the relevance of Plato to Illinois criminal trials.

And, no, ''Plato'' is not a new gyros joint at 26th and Cal.

In Book III of Plato's Republic, Socrates distinguishes between two types of poets: the ''narrative poet'' and the ''imitative poet.'' The narrative poet is simply the person who recites poetry from a third-party perspective. But the imitative poet actually performs the roles he represents. In other words, the narrative poet simply tells us the story of Achilles; the imitative poet, on the other hand, actually pretends to be Achilles.

Socrates clearly loves the imitative poet for his ability to make us empathize with the person he is playing. The imitative poet has the power to make us empathize — to actually feel what Achilles is feeling. Socrates says that we should react to the imitative poet by ''fall[ing] on our knees before him as a man sacred, wonderful, and pleasing.''

When you think about it, the criminal-trial lawyer is something like an imitative poet. There is a reason the prosecutor reminds us that she represents the ''People of the State of Illinois.'' She is there not in a private capacity, but instead is presenting a prosecution on behalf of the public as a whole. Similarly, the defense attorney appears not so much on behalf of the defendant as he is a stand-in for the defendant. There is a reason the defense attorney is colloquially known as a mouthpiece.

So how does Socrates suggest that we treat the imitative poet?

He says that the city should permanently banish him since he is a menace to society.

Why does Socrates believe this? And what relevance does this have to criminal trials?

These are but two of the issues addressed by Kenji Yoshino in a fascinating new article entitled The City and the Poet, 114 Yale Law Journal 1835 (2005).

Yoshino begins by noting that ''poetry'' in Plato's time had a different meaning than it does for us today. On the one hand it was broader than our current definition — for example, it included drama. But it was also narrower than our current concept of literature — for example, it would not have included our idea of the novel. Nevertheless, Yoshino states that he ''read[s] the Platonic banishment of the poet from the city as an ancient analogue for the banishment of literature from the sphere of law.'' At 1842.

Plato's banishment of the poet from the city — or, as Yoshino would phrase it, the banishment of literature from law — has been heavily criticized for centuries. Yoshino's article examines whether Plato's position has any relevance to law today.

Plato lodges three basic objections to poetry — it can be untrue, irrational, and seductive. The power of the imitative poet is such that he can sway the minds of his listeners towards improper ends. The city (let's now modernize the reference by calling it the State) has reason to be wary of the power of poetry (let's now modernize the reference by calling it literature, in a broad sense).

Yet Plato does allow literature a chance to justify itself. Yoshino identifies three tenets in Plato that he labels ''the Platonic paradigm.'' First, literature should not be allowed to conflict with the core functions of the State. Second, literature cannot evade responsibility by simply asserting that it cannot be eradicated. Third, literature will be allowed if it can affirmatively show that it contains virtues that do not conflict with State functions.

Phrased in this way, Koshino contends that only a First Amendment absolutist would deny that there are types of literature (and speech) that the State can censor if it has a compelling reason, e.g., obscenity. Indeed, Koshino argues, those who would reject ''the Platonic paradigm'' would also be committed to rejecting contemporary First Amendment jurisprudence. At 1862.

So what does this have to do with criminal trials? Koshino argues that ''the Platonic paradigm'' is most immediately applicable today when the State must determine ''whether a text will be admitted into its own discourse,'' e.g., whether certain evidence will be admissible at a trial conducted by the State. Obscenity found in society at large is a much easier issue — no one believes that the State has created the obscene text. But evidence, argument, and stories admissible at a criminal or civil trial come to the jury with the imprimatur of the State. And the example Koshino discusses is the admissibility vel non of victim-impact statements at capital sentencing hearings.

Koshino first looks at Booth v. Maryland, 482 U.S. 496 (1987), where the U.S. Supreme Court banned victim-impact statements at capital trials because it held that their inflammatory nature distracted the jury from sentencing the defendant in a rational manner. He notes that Justice Lewis Franklin Powell's majority opinion can be seen as condemning victim-impact evidence at capital trials for essentially the same reasons Plato criticized the work of imitative poets: the danger of falsity, irrationality, and seductiveness.

The Court overruled Booth a mere four years later in Payne v. Tennessee, 501 U.S. 808 (1991). The Payne opinion basically rebuts Booth's position on those three Platonic factors. As to falsity, the Court said that the victim-impact statement could be contradicted like any other evidence. As to irrationality, the victim-impact statement relied no more on the emotions than did the mitigation evidence introduced by Mr. Payne. As to seductiveness, again the court held that this quality was no more present in the victim-impact statement than in the defense's mitigation.

So which decision is correct, Booth or Payne? Koshino applies the ''Platonic paradigm,'' thus asking whether the supporters of victim-impact statements can establish that this type of poetry in fact supports State functions.

Koshino calls the resolution of this issue a ''close question'' because Booth and Payne present two very different views of the proper State function of the capital sentencing hearing. Booth views it as a direct confrontation between the defendant and the State. Payne, on the other hand, visualizes a triangular relationship, with the defendant and State being joined by the victim. Thus, you cannot choose between Booth and Payne without choosing between these two opposing views of the function of the capital sentencing hearing.

Koshino chooses the Booth view that the capital sentencing hearing is a matter solely between the defendant and the State, thus excluding victim-impact evidence. In reaching this conclusion, Koshino offers a striking metaphor to describe the position of the convicted murderer at a capital sentencing hearing: ''The defendant's narrative posture here is that of a Scheherazade, telling stories to the State so she may live. In this context, I believe the function of sentencing is to permit the defendant to tell her story untrammeled by other voices.'' At 1884.

Scheherazade, the princess from ''A Thousand and One Arabian Nights'' who had to please the prince with her stories in order to put off her execution — could there be a more arresting image epitomizing the position of a convicted murderer at a capital sentencing hearing? And has not the U.S. Supreme Court emphasized this in a way by ruling that that there is essentially no limit to what can be introduced as mitigating evidence? Lockett v. Ohio, 438 U.S. 586 (1978). In fact, the U.S. Supreme Court is currently facing the issue of whether a capital defendant has a constitutional right to present evidence and argument to his sentencing jury concerning residual doubt about his guilt for the underlying murder itself. Oregon v. Guzek, No. 04-928, argued December 7, 2005.

Koshino's use of the ''Platonic paradigm'' also has application beyond the capital sentencing setting. For example, the Illinois Supreme Court's rules for evaluating the propriety of a prosecutor's closing argument — considerations of relevance, irrationalism, misdirected emotion — are pretty much summed up by the ''Platonic paradigm.'' See, e.g., People v. Johnson, 208 Ill.2d 53 (2003) and People v. Blue, 189 Ill.2d 99 (2000). If you are a fan of stare decisis, a balancing test that goes back to the 4th century B.C.E. cannot be lightly dismissed.

For those readers who have made it all the way through — congratulations! And make a note of this, because reading an article about Plato's influence on the law should be worth at least a year of MCLE credit in Illinois.