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What are the aims of a criminal trial? What social functions should it perform? And how is the trial as a political institution linked to other institutions in a democratic polity? What follows if we understand a criminal trial as calling a defendant to answer to a charge of criminal wrongdoing and, if he is judged to be responsible for such wrongdoing, to account for his conduct? A normative theory of the trial, an account of what trials ought to be and of what ends they should serve, must take these central aspects of the trial seriously; but they raise a number of difficult questions.
They suggest that the trial should be seen as a communicative process: But what kinds of communication should it involve; Are these kinds of communication in which lay participation is relevant or legitimate; What is the relationship between such communication (and the procedural rights that it generates) and the pursuit of truth? Behind such questions, lie further questions about the political legitimacy of the trial. What kind of political theory does a communicative conception of the trial require? Can trials ever actually amount to more than the imposition of state power on the defendant?
What political role might trials play in conflicts that must deal not simply with issues of individual responsibility but with broader collective wrongs, including wrongs perpetrated by, or in the name of, the state? These issues are addressed by the essays in this volume, which arose from two workshops held in 2004. This is the second of three planned volumes to be produced by the Trial on Trial project, which aims to produce an adequate normative account of the criminal trial and its proper role in a democratic polity.
The first volume, "Truth and Due Process" (a collection of essays based on workshops in 2003) was published in 2004; the third volume, in which the four editors of this volume develop their own normative account, was published in 2007.