Notes
NOTES TO THE INTRODUCTION
1. My apologies to the trial lawyers among my readers. I have deleted some objections and streamlined others to promote readability. I have also reconstructed this scene based on my memory of the events, unlike in later chapters, where I rely on actual trial transcripts.
2. See NATIONAL VICTIM CENTER AND THE CRIME VICTIMS RESEARCH AND TREATMENT CENTER, RAPE IN AMERICA: A REPORT TO THE NATION 1â16 (April 23, 1992) (survey and interview data on repeated rapes of the same victims, concluding that â39%, or an estimated 4.7 million women were raped more than onceâŠ.â); Mary P. Koss, Hidden Rape: Sexual Aggression and Victimization in a National Sample of Students in Higher Education, in RAPE AND SOCIETY: READINGS ON THE PROBLEM OF SEXUAL ASSAULT 44 (Patricia Searles & Ronald J. Berger eds. 1995) (41 percent of rape victims in college-student survey expected a similar assault to happen again); DIANA E. H. RUSSELL, THE POLITICS OF RAPE: THE VICTIMâS PERSPECTIVE 44â51 (1974) (recounting similar repetitive rapes of a single particularly vulnerable victim over a two-week period).
3. See Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1, 76â83 (1993) (recounting the qualifications and procedures required for reliable clinical psychological judgment).
4. See PAUL C. GIANNELLI & EDWARD J. IMWINKELREID, SCIENTIFIC EVIDENCE 242â56 (1986) (most courts exclude polygraph (âlie-detectorâ) test results absent stipulation); PAUL EKMAN, TELLING LIES: CLUES TO DECEIT IN THE MARKETPLACE, POLITICS, AND MARRIAGE 279â98 (1992) (âProfessional lie catchersâpolice, ⊠judges, and governmentâ often do no better than chance). Four members of the United States Supreme Court have also recently expressed concern about the polygraphâs reliability. See United States v. Scheffer, 118 S. Ct. 1261, 1263â66 (1998) (per se rule against admission of polygraph evidence in court martial proceedings did not violate accusedâs constitutional right to present a defense).
5. For a recounting of the justice systemâs brutal denial of rape victim autonomy and dignity, see LEE MADIGAN & NANCY C. GAMBLE, THE SECOND RAPE: SOCIETYâS CONTINUED BETRAYAL OF THE VICTIM (1989).
6. See generally L. CUTLER & STEVEN R. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW (1995). My experience as a prosecutor also revealed ready jury reliance on what I now realize were questionable eyewitness identifications.
7. For a summary of the literature on the justice systemâs courtroom treatment of rape victims and the failure of ever-changing law reform in this area, see Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOM.âS ST. 387 (1996) [hereafter Patriarchal Stories]. But see David Bryden and Sonja Lengnick, Criminal Law: Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1377â81 (1997) (arguing that rape report rates have improved and jury bias somewhat declined, but probably because of some changes in attitudes rather than because of rape law reform, while conceding that âthere is a great deal of anecdotal and social-scientific evidence of public (and jury) bias against norm-violating victims of acquaintance rape.â). For a discussion of the postincident behavior of rape victims, see JUDITH ROWLAND, THE ULTIMATE VIOLATION (1985). For an analysis of the degree of physical injury involved in rape, see NATIONAL RESEARCH COUNCIL, UNDERSTANDING VIOLENCE AGAINST WOMEN 75 (1996) (â[T]he data show that between one-half and two-thirds of rape victims sustain no physical injury âŠ.â).
8. See COLLEEN A. WARD, ATTITUDES TOWARD RAPE: FEMINIST AND SOCIAL PSYCHOLOGICAL PERSPECTIVES 101â7 (1995) (surveying rape jury research).
9. Regarding feminist conceptions of the social function of rape and that functionâs reflection in our treatment of victims, the pathbreaking work is SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975). More recent works include STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 1â46 (1998); PEGGY REEVES SANDAY, A WOMAN SCORNED: ACQUAINTANCE RAPE ON TRIAL (1996); RUS ERVIN FUNK, STOPPING RAPE: A CHALLENGE FOR MEN (1993); and MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR (1989). On the status of early rape law and the failure of law reform efforts, see NANCY A. MATTHEWS, CONFRONTING RAPE: THE FEMINIST ANTIRAPE MOVEMENT AND THE STATE (1994); CASSIA SPOHN & JULIE HORNEY, RAPE LAW REFORM: A GRASSROOTS REVOLUTION AND ITS IMPACT (1992); SUE BESSMER, THE LAWS OF RAPE (1984); and Taslitz, supra note 7, at 389â93.
10. See Taslitz, supra note 7, at 387â439 (reviewing ways in which criminal justice actors evade rape law reform).
11. See e.g., Julie A. Wright, Using the Female Perspective in Prosecuting Rape Cases, 29 FED. PROSECUTOR 19 (1995) (noting many women âtend not to believe rape victims as a method of psychological self-protection. If women accept that such an intimate violation could happen to this woman, then they must in turn implicitly accept the fact that it could also happen to them.â); WARD, supra note 8, at 78â82 (noting that men are nevertheless more likely than women to hold reactionary attitudes toward rape).
12. ROGER C. SCHANK, TELL ME A STORY: A NEW LOOK AT REAL AND ARTIFICIAL MEMORY 8â16 (1990).
13. See, e.g., Nancy Pennington and Reid Hastie, The Story Model for Juror Decision Making, in INSIDE THE JUROR: THE PSYCHOLOGY OF JUROR DECISION-MAKING 195 (Reid Hastie ed. 1993); W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (1981).
14. See SUSAN J. DOUGLAS, WHERE THE GIRLS ARE: GROWING UP FEMALE WITH THE MASS MEDIA 79â80, 202, 210â11, 236, 244, 294, 302â3 (1994).
15. See HELEN BENEDICT, VIRGIN OR VAMP: HOW THE PRESS COVERS SEX CRIMES 7â8 (1992).
16. GENESIS 39.
17. J. M. BARRIE, PETER PAN 30, 38, 66, 83 (1911); DOUGLAS, supra note 14, at 30 (defining âembonpointâ).
18. See, e.g., Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in RACE-ING JUSTICE, ENGENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 323â30 (Toni Morrison ed. 1992); Taslitz, supra note 7, at 459 n. 479 (reviewing empirical data on juror reactions to black rape complainants).
19. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 56â78 (1988).
20. See DEBORAH TANNEN, YOU JUST DONâT UNDERSTAND: WOMEN AND MEN IN CONVERSATION 24â48 (1990) (discussing differing linguistic worlds of men and women).
21. MARY CRAWFORD, TALKING DIFFERENCE: ON GENDER AND LANGUAGE (1995) (reviewing data on male-female language differences and articulating a âsocial constructionistâ alternative to essentialist explanations of these differences).
22. See W. KIP VISCUSI ET AL., ECONOMICS, REGULATION, AND ANTITRUST 324 (2d ed. 1995) (defining âexternalitiesâ).
NOTES TO CHAPTER 1
1. DAN P. MCADAMS, THE STORIES WE LIVE BY: PERSONAL MYTHS AND THE MAKING OF THE SELF 17 (1993) (quoting Elie Wiesel).
2. For an interesting explanation of how storytelling shapes our memories and is intricately tied up with how we reason, see generally ROGER C. SCHANK, TELL ME A STORY: A NEW LOOK AT REAL AND ARTIFICIAL MEMORY (1990); WALTER R. FISHER, HUMAN COMMUNICATION AS NARRATION: TOWARD A PHILOSOPHY OF REASON, VALUE, AND ACTION 105â10 (1987). For analysis of the application of storytelling theory to jury trials, see RICHARD D. RIEKE & RANDALL K. STUTMAN, COMMUNICATION IN LEGAL ADVOCACY 94â102 (1990); SPECIAL COMMITTEE ON JURY COMPREHENSION, ABA SECTION OF LITIGATION, JURY COMPREHENSION IN COMPLEX CASES, App. 10, at 18â19 (Dec. 1989). Rieke and Stutmanâs text includes a thorough explanation of the concepts of ânarrative coherenceâ and ânarrative fidelityâ developed here. For an analysis of the psychological reasons that cultural tales grip our evidentiary imaginations so powerfully, see Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOM.âS ST. 387, 404â33 (1996).
3. The Ms. B example is a modification of one presented at Richard J. Bonnie and Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 VA. L. REV. 427, 477â79 (1980). I have used the Ms. B example before to illustrate...