Trials are a superb source of drama because of a double tension – one, between the prosecutor and the defendant; the other, between substantive justice and legal process. The audience does not know who will win the case, and it does not know whether justice will be done. A standard device in literary depictions of trials is to let the reader know that the defendant is guilty (or not), and then the reader will keep turning pages in order to find out whether the defendant will get off on a technicality (confession without Miranda warnings), whether the prosecutor will overcome the technical problem (defendant takes the stand and breaks down), and so forth. An author, screenwriter, or film producer with even modest talents can produce a compelling drama just by framing it as a trial.
Real trials are boring, however. The reason is that the judge and lawyers must spend a lot of time arguing over, and respecting, the rules of process – whether the jury should hear this or that, whether a document has been verified, whether an objection was made in a timely fashion. The boringness of real trials is an intrinsic element of their value for sorting between guilty and innocent. But no one will watch a boring trial, and therefore real trials – that is, the day-to-day events, as opposed to the outcome – rarely have much impact on public sentiment.
Trials can easily be converted to entertainment in the medium of fiction, and most real trials can continue to be boring with no harm done. But trials of national leaders for international crimes pose special problems. The purpose of these trials is not to prove the guilt or innocence of the defendant but to prove the fairness of the tribunal. We know what Saddam did; we don’t know whether the new Iraqi government is committed to, and capable of, liberal democracy. To show that a new type of government exists in Iraq, the tribunal must show that it is fair. But fairness means process, and process means endless objections, motions, paper shuffling, and squabbling over picayune details. We want the public to see the squabbling – how else do they know the trial is fair? – but we cannot make them watch it. How can we educate the public by providing a boring spectacle?
Totalitarian governments cut the Gordian knot by holding show trials. The viewer knows the trial is fair because the defendant assures him that it is fair and that his confession is genuine – the torture and coercion having taken place off screen. No such technique is available in a democracy, and in ordinary courtrooms lawyers resort to simple theatrical devices like props and emotionally vivid language to hold the attention of sleepy jurors.
The Iraqis have decided to televise Saddam’s trial. We know that American lawyers are helping the Iraqis with the legal elements of the trial. But if the trial is going to serve its intended pedagogical purpose – to teach Iraqis the virtues of liberal democracy, or is it to teach them that America has their interests at heart, or just that the Sunnis owe the Shiites? – we should hope that the Americans thought to include in the advisory group some experienced practitioners of the craft of courtroom theatrics, and perhaps some Hollywood talent as well.