School of Advanced Study, University of London
Institute of Advanced Legal Studies
Open Justice and Open Secrets: The Cultural Afterlife and Criminal Evidence
Professor Katherine Biber
(University of Technology Sydney, Australia: IALS Visiting Fellow)
This presentation examines the cultural afterlife of criminal evidence. It explores what happens to the evidence tendered in criminal proceedings after the conclusion of the trial, or during the trial but outside the courtroom. Formally regarded as part of the court record, and subject to the rules of evidence within the trial, beyond the trial this material has aroused the interest of artists, publishers, historians, curators and journalists who wish to access and use this material for a wide range of purposes, some of which might be transgressive, dangerous or insensitive.
This presentation outlines my current project, which is motivated by the timely intersection of two contemporary phenomena: 'open justice' and 'open secrets'. 'Open justice' demands transparency about court procedures and access to court information; the term 'open secrets' acknowledges that public records sometimes need tact or sensitivity about the secrets they contain. They project also explores the undiminished fervour, within the humanities and creative arts, for treating official records as 'open secrets'. These archives, including a very significant amount of legal evidence used in criminal trials, provide a rich basis for creative and scholarly enterprises, and this work has, to date, flourished without any consistent decision-making about access to, or restrictions upon, court information.
These extra-legal deployments of evidence create a conflict between transparency and secrecy, between the ideals of 'open justice' and 'sensitivity'. This project explores the consequences of using criminal evidence in the cultural field, an aims to investigate whether an appropriate regulatory or ethical framework can be developed in response to challenging or controversial re-deployments of this material. This is particularly important because the rules of evidence cannot guard against the risk that it may be mis-used outside of criminal proceedings, and where users are motivated by entirely different sensibilities and sensitivities. This explores what is at stake in opening this criminal archive, and what might be at stake if we try to regulate it.
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