How the Conflation Of 'Inappropriate' Grief With Guilt Compromises The Sixth Amendment Right To Fair Trial

Abstract

On an imperfect American criminal legal landscape, evidence about a defendant's inability to appropriately perform grief about and/or towards a victim often colors how judges, juries, and the public understand their relationship to criminality. It is on this imperfect American criminal legal landscape that the subject of this paper-grief performance and its relationship to constructions of guilt-is born.I argue that a real ritual dissonance transpires when an individual loses someone close to them to a traumatizing form of death-that is, in an extremely violent or unexpected way. On the one hand, one's body finds itself expected to conform to social norms regarding grief and mourning. On the other, one's experience is so anomalous as to potentially make it unfathomable for them to do so. The resulting grief performance is one that is at once produced by the grieving self to process incomprehensible trauma and recognized by a perceiving community as a social oddity, a ritualized failure incapable of being understood by the surrounding community. Because the community cannot comprehend the griever's performance, suspicion begins to surround the griever. People begin to realize, "she did not cry"; "she was cold"; "she did cartwheels"; "she spoke on television"; "she spent exorbitant amounts of money," and so they assume she must have had a hand in orchestrating the death of the person close to her. This process can be understood as creating a "grief-guilt" complex, as improper grief performance produces and generates presuppositions of a person's guilt. * J.D. Candidate, Harvard Law School Class of 2022. Special thanks to Rebecca Richman-Cohen, who offered exceptional guidance throughout the writing process and whose course, 'Seeing Criminal Injustice' opened my eyes to how the language of law could be inflected by more than just written rules and doctrine. Thanks also to the faculty in the English and Religion Departments at Haverford College, who introduced me to the worlds of Performance, Ritual, Grief and Trauma Studies, and to whom I am deeply indebted. 157 Innocent UntIl Proven UngrIevIng 31. Arnold van Gennep, The Rites of Passage 10-11 (Monika R. Vizedom & Gabriel L. Caffee trans., Univ. of Chi. Press 1960). 32. So too do funerary rites have elements of separation, transition, and incorporationfor the deceased. First, in the separation stage, the deceased individual is demarcated as deceased and ritually prepared for burial. Second, in the liminal stage, she becomes a centerpiece in the process of worship, prayer, and memory, awaiting burial. And finally, in the incorporation stage, she is buried, allowed to be fully incorporated into the "community" of the lost.