Citation

Scheffer T, Hannken‐Illjes K, Kozin A. Law Soc. Inq. 2007; 32(1): 5-39.

Copyright

(Copyright © 2007, American Bar Foundation, Publisher John Wiley and Sons)

DOI

10.1111/j.1747-4469.2007.00048.x

PMID

unavailable

Abstract

This article explores the binding forces that emerge in criminal cases. Using ethnographic data, we explore how defendants are bound to their initial defenses. In addition, we ask whether the binding effect works similarly or differently in three distinct procedures. Our research is rooted in the analytical concepts of “procedural history” and “discourse formation” as presented by Niklas Luhmann and Michel Foucault. Both theories describe past statements as “virulent” in present stages: participants have to take their own histories into account when engaging in current dealings; current statements must confront past statements, generating inconsistency and contradiction. Empirically, the three authors explore variations of binding in the light of eight microhistorical case narratives collected during fieldwork in the United States, the United Kingdom, and Germany. These microhistories trace the binding effects of early defenses through pretrial and trial. Our observations lead us to conclude that the binding mechanism appears less determinative in practice than in the claims of theory. Alongside the several effects of binding, we identify a variety of protections, interruptions, and even unbinding effects.