Post-script: Evidence on Trial

Event Start Date:
December 12, 2014
Event End Date:
December 31, 2014
Event Venue:
Stroom, Den Haag

December 12 2014


During the Finissage for Susan Schuppli’s “Evidence on Trial” presentation, I was asked by curator Brigitte van der Sande whether it was possible for someone in the legal profession to have a “double articulation” that included the making of art. Although I gave an abbreviated answer in the context of the group discussion, I think a fuller development of the idea might offer at least a partial explanation for why, at various points during the SYiTH program including notably the “Evidence on Trial” conference, unseen conceptual obstacles appeared to forestall a productive dialogue between individuals from legal and artistic backgrounds.

In my answer, I explained that aesthetic critique is incompatible with properly-functioning judicial systems from the internal perspective of the operations of a trial. This is not to say that the system itself cannot accept critique—externally, the rules governing trial procedures and evidence (the mechanism by which “truth” is established) as well as the substantive law itself (defining rights and duties approximating “right and wrong”) are often revised through legislation as well as subjected to scrutiny in academia and the media. Rather, from the inside of a trial, there is no room for critique that does not follow the predefined pattern and format of the trial procedure itself—critique that does not conform to, for example, an “objection” that a procedural rule has been violated or that a document does not meet the standards to be admissible as evidence, is unintelligible in this context. In this way, the trial functions like a computer with its own language and pathways of logic, and deviating from this schematic will simply not compute.

Of course, it cannot be any other way, for the criminal trial is tasked with establishing facts beyond a reasonable doubt and applying a normative judgment to them. This would be impossible without the underlying assumption that there is a singular, objective truth, which, if it cannot be ascertained completely, can at least be approximated to a sufficient degree that we have confidence in the system’s accuracy, and therefore, its ability to do “justice”. Without objective truth, punishment would be arbitrary.

While the “task” of artists, and social, cultural and media theorists, if there is one, may be too multifarious to identify with any precision here, it should be relatively uncontroversial to note that any postmodern viewpoint would not only query the above truth-premise, but may also seek to identify underlying structures of cultural or political power, influence or ideology that may inhere in the events or institutions comprising criminal trials and tribunals.

Even though the criminal trial represents what I have elsewhere termed a “non-art environment,” it does not mean that the material or context itself cannot be used as an art material, or exposed to aesthetic critique (indeed, it should be so used)—but it does imply that the terms of communication between the juridical and aesthetic worlds may be fraught with misunderstanding. This may explain why guests at the “Evidence on Trial” conference came away sensing a curious disconnect between participants from different backgrounds: whereas projects such as Susan Schuppli’s at Stroom involved, among other things, an interrogation of the “distancing” generated between international tribunal factfinders and the objects of their judgment by the use of digital technologies ranging from videoconferencing to digital images and video, they were perceived by members of the legal community as questioning the truth-seeking capacity or basic fairness of those tribunals’ procedures. Where one approach might investigate the ideology buried in courtroom technology, a legal observer might interpret this as either a broadside on the legitimacy of the system or an irrelevant critique that is beside the point of whether the system produces the right results. As such, this lack of overlap in the agendas and common assumptions of the artistic/critical community and the legal community may generate gaps in discourse that are difficult to bridge.

More opportunities to communicate, interact, and educate each other would benefit both constituencies. These communities come into contact with each other far less often than they should, and See You in The Hague represented an admirable step in the right direction.

Finissage and discussion Source: Jason File, ICTY prosecutor and artist