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Open Access Publications from the University of California

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


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.

As I demonstrate, the construction of a grief-guilt complex does not live in isolation—if it did, the isolated phenomenon would be theoretically interesting but pragmatically insignificant. Instead, the criminal legal system absorbs the assumptions that a person who performs inappropriate or non-normative grief must necessarily be guilty of a crime. To precisely demonstrate the ways in which this unfolds, I focus on three high profile cases: Amanda Knox, Pamela Smart, and Erik and Lyle Menendez. My analysis draws on the language and affective displays that unfolded in the trials to demonstrate how the grief-guilt complex enters into the courtroom. It also highlights the ways in which media coverage preceding and surrounding the trials helped breed heightened suspicion around each of the defendants in ways that hampered their ability to fully access their Sixth Amendment rights to a fair trial unimpeded by prejudicial biases about grief performance and guilt.

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