Guilty, Guilty, Guilty!

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One of my least favorite trial dramas is Twelve Angry Men (1957).  As a defense attorney with thirty years experience I find it hilarious as Henry Fonda convinces his fellow jurors that the Defendant is not really guilty.  Why do I find it hilarious?  It is such a stacked deck!  Just like a Socratic “Dialogue” the argument is tailored to make the case for the Defendant, and no contrary arguments are allowed to stand as Fonda steamrolls all opposition and saves the day for truth, justice and the American way! Or did he?  Mike D’Angelo at AV Club has a brilliant analysis of why Fonda and his fellow jurors likely let a murderer off the hook:

Here’s what has to be true in order for The Kid to be innocent of the murder:

  • He coincidentally yelled “I’m gonna kill you!” at his father a few hours before someone else killed him. How many times in your life have you screamed that at your own father? Is it a regular thing?


  • The elderly man down the hall, as suggested by Juror No. 9 (Joseph Sweeney), didn’t actually see The Kid, but claimed he had, or perhaps convinced himself he had, out of a desire to feel important.


  • The woman across the street saw only a blur without her glasses, yet positively identified The Kid, again, either deliberately lying or confabulating.


  • The Kid really did go to the movies, but was so upset by the death of his father and his arrest that all memory of what he saw vanished from his head. (Let’s say you go see Magic Mike tomorrow, then come home to find a parent murdered. However traumatized you are, do you consider it credible that you would be able to offer no description whatsoever of the movie? Not even “male strippers”?)


  • Somebody else killed The Kid’s father, for reasons completely unknown, but left behind no trace of his presence whatsoever.


  • The actual murderer coincidentally used the same knife that The Kid owns.


  • The Kid coincidentally happened to lose his knife within hours of his father being stabbed to death with an identical knife.

The last one alone convicts him, frankly. That’s a million-to-one shot, conservatively. In the movie, Fonda dramatically produces a duplicate switchblade that he’d bought in The Kid’s neighborhood (which, by the way, would get him disqualified if the judge learned about it, as jurors aren’t allowed to conduct their own private investigations during a trial), by way of demonstrating that it’s hardly unique. But come on. I don’t own a switchblade, but I do own a wallet, which I think I bought at Target or Ross or some similar chain—I’m sure there are thousands of other guys walking around with the same wallet. But the odds that one of those people will happen to kill my father are minute, to put it mildly. And the odds that I’ll also happen to lose my wallet the same day that a stranger leaves his own, identical wallet behind at the scene of my father’s murder (emptied of all identification, I guess, for this analogy to work; cut me some slack, you get the idea) are essentially zero. Coincidences that wild do happen—there’s a recorded case of two brothers who were killed a year apart on the same street, each at age 17, each while riding the same bike, each run over by the same cab driver, carrying the same passenger—but they don’t happen frequently enough for us to seriously consider them as exculpatory evidence. If something that insanely freakish implicates you, you’re just screwed, really.

Go here to read the brilliant rest.  Unless there is a confession in a criminal case, and Defendants do confess with dismaying regularity from the perspective of their hard-working Defense attorneys, criminal prosecutions often succeed simply by the sheer weight of evidence.  In order to mount a successful defense in a criminal case it is often necessary to refute several avenues of attack by the prosecution, any one of which, if believed by the jury, will almost certainly end in a guilty verdict.  Unfortunately Defendants rarely have someone as preternaturally persuasive as Fonda arguing the case to his fellow jurors.  It also doesn’t help that the vast bulk of Defendants are guilty as sin, although there is, and should be, a vast difference between actual guilt, and what the State has to prove at trial to obtain a conviction.  If you ever have an opportunity, sit in on a criminal jury trial.  It will bear small resemblance to court room dramas, but I usually find them more fascinating than the fictional versions.

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  1. You may have heard of Sir Patrick Hastings. He was one of the greatest lawyers in Britain in the twentieth century, and especially famous as a cross-examiner. In his memoirs, he tells the following story: Once, a client came to him and started by saying, you are not going to believe a word I say. And he proceeded to tell a tale of misfortune and villainy (by his former business partner and plaintiff in the case) so incredible that Hastings, indeed, could not believe it. But he went to court and did his best for his client anyway. And so it happened that, cross-questioning the plaintiff, he noticed a tiny, tiny contradiction. He became interested. He started hammering at it. Bit by bit the truth was forced out of the unwilling plaintiff. Hastings’ unbelievable client had told him the exact truth.

  2. Donald R McClarey wrote

    “although there is, and should be, a vast difference between actual guilt, and what the State has to prove at trial to obtain a conviction”

    My favourite example of this is a case we had here in Scotland, namely Creasey v Creasey [1931 S.C. 9.]

    This was, in fact, a civil action. Mr Creasey raised an action for divorce against his wife, on the grounds of her adultery with a co-defender, against whom he concluded for expenses. At that time, the criminal standard of proof obtained in consistorial cases, proof beyond reasonable doubt and on corroborated evidence.

    At the proof, the evidence led against the defender consisted of certain extra-judicial admissions, corroborated by evidence of clandestine association. On this, the Lord Ordinary found that the defender had committed adultery with the co-defender. However, there was no evidence that the co-defender had authorised or adopted the defender’s admissions: as against him, they were mere hearsay. Moreover, the evidence of clandestine association was uncorroborated and, in any event, insufficient, on its own, to prove adultery. Accordingly, the Lord Ordinary could not be satisfied that the co-defender had committed adultery with the defender and he assoilzied him from the action and decerned for his expenses against the pursuer.

    On appeal, the Inner House adhered.

  3. I had a similar case Fabio. Unfortunately in that case the Judge accepted the testimony of the witness who perjured himself. The case did not involve serious consequences for my client, but it rankled. Years later I represented the witness in another matter and he told me that he had lied. Although there was nothing that could be done about it at that late date, I did advise the Judge off the record, not mentioning the names of the parties. He said that he truly wished that along with a black robe they gave new judges mind reading ability or the charism of peering into the souls of men!

  4. Another reason I stay away from legal dramas, whther TV or film. It’s just so unrealistic how often key evidence falls into place, the right witness shows up at thelast second, not to mention the total shenanigans that lawyers get away with in court that in the real court would land you in the clink before you could say hearsay. Besides, after dealing with the law world all day, the last thing I want to do is come home and watch it on TV.

    I’ve often wondered if medical professionals/law enforcement feel the same way about medical /law enforcement dramas.

  5. c matt: Regarding realism, my husband is a fireman, and he won’t even watch movies on that subject because they are so unrealistic. “Backdraft”, to firefighters, is best viewed as a comedy, not a drama.

    I think it’s interesting that Henry Fonda appeared in Angry Men AND Grapes of Wrath–another “drama” that purported to tell a “larger truth about the system,” but which was just propaganda.

    Which makes it not at all surprising that Jane’s political views were so far left.

  6. Seeing this film again many years after its release, it struck me as another sanctimonious and pretentious Henry Fonda performance. Sadly, it is used in many schools to teach “justice’. We are close to the point where it is hard to find someone guilty because of either obfuscation (the OJ defense) or pleading mitigating circumstances. This doesn’t even cover instances where prosecutors drop the case deciding that the evidence, though overwhelming, is not sufficient to gain a conviction. I saw this on my stint on the State medical board. It was demonstrated most outrageously in the Black Panther case. It also doesn’t cover where the adjudication of the obviously guilty is inexplicably delayed and drops off the radar as in the Fort Hood case.
    One legal drama that I cover in my book Christians in the Movies: A Century of Saints and Sinners is the profane , violent, and manipulative “Primal Fear” which makes a travesty of the legal system and trashes the Catholic Church to boot.

  7. “it struck me as another sanctimonious and pretentious Henry Fonda performance. ”

    Fonda did tend to lean towards those roles, especially as he got older. Two of my favorite Henry Fonda films were from his early career, Young Mr. Lincoln and Drums Along the Mohawk.

  8. My favorite movie (sadly NOT included in the recent “greatest movies” list) is Once Upon a Time in the West, the only time I know of that Fonda played a bad guy.

    As for 12 Angry Men — where was The Kid’s defense counsel? He should have made all the points Fonda did.

    To D’Angelo, I’d say, why ruin a perfectly good movie? Besides, a lot of Fonda’s points are valid. We can throw out the neighbor and the guy down the hall and especially the woman across the street. Eyewitnesses are notoriously unreliable but juries put more stock in them than almost any other evidence.
    No alibi? No naming the movie? Meh, bad but not enough to convict.
    The knife. When I was a kid we all had jackknives or folding Buck knives. So if switchblades we standard gear in The Kids neighborhood, not conclusive.

    Of course, nowadays the DA might offer The Kid life with possibility of parole (or even manslaughter) if he’d plead — unless he could offer “truthful testimony” wink, wink against somebody else he wants to nail.
    Maybe you can explain how offering something of value (a shorter sentence or no sentence at all) =/= subornation.

  9. I have not seen the above movie. So, herewith are my thoughts on it: “beyond a reasonable doubt”. God knows who committed the murder. The murderer knows who committed the murder. Before I go any further, let me say that crimes of passion are not considered capital one murder, deserving the death penalty. Passion is the wrong word as hatred, jealousy, anger, and the like is not a passion but a vice and addiction to the vice precludes aforethought. Capital one homicide consist in planning, (afore thought), plotting and executing the crime in cold blood. Everything else may be murder I or II or even manslaughter. Two witnesses establish a judicial fact. A preponderance of credible evidence is only admissible in a civil trial, where one’s life is not in the balance. Nevermind that the witness had eyeglass marks on her nose, the fact that the witness needed eyeglasses was an indictment of her ability to see and witness. There were no witnesses to the deed and also in the Simpson trial, and two witnesses are required to indict a capital one murderer to the death penalty. “beyond a reasonable doubt” was not established. “Beyond a reasonable doubt” is not established in the capital one death penalty of 54 million unborn constitutional posterity.

  10. Juries are quite unfathomable. I recall a case once, where a jeweller was accused of resetting a large number of items of jewellery, part of the proceeds of a number of thefts.

    After some three hours of deliberation, the jury announced a verdict (by a majority) of guilty of resetting “some of the items libelled” Naturally, the judge asked them to specify which items. It then transpired that five of them thought he had resetted the proceeds of one theft, four that he had restted the proceeds of another and so on. There was no single item on which eight of the fifteen were agreed that he had resetted it, but at least eight of them thought he had resetted at least one of them. That is how they had arrived at their majority.

    After more directions and a further hour’s deliberation, they ended up acquitting him.

  11. “Maybe you can explain how offering something of value (a shorter sentence or no sentence at all) =/= subornation.”

    Because they are almost always guilty as sin. They are merely admitting a crime they have in fact committed. No judge will accept a plea bargain if the Defendant continues to assert his innocence, and I have seen plea bargains rejected because the Defendant makes an assertion of his innocence at the last moment. ( And no, in the case I recall the Defendant was not in fact innocent of the offense, his assertion to the contrary notwithstanding.)

    Some Defendants are innocent. I recently convinced the State’s Attorney in my county to nolle prosse a prosecution against a client who I established was not guilty of the offense charged. However such a case is rare enough that each one stands out among the hundreds of criminal defenses I have been involved in.

  12. Basic law question for you, Don, from somebody who has never talked with a lawyer except at parish men’s club meetings: Does nolle prosse invoke double jeopardy?

  13. Mary de Voe

    The maxim of the Civil Law is “Testis unus testis nullus” – One witness is no witness.

    So, if a man confesses to theft, that is not sufficient to convict; but if he says where he hid the goods and they are found there, then the confession and the finding are two independent sources of evidence and that makes a sufficient proof, even if only one witness hears the confession and only one finds the goods.

    I remember, before we had divorce by consent, we had “hotel cases,” where husband would spend the night in an hotel with a “woman to the pursuer unknown.” The chambermaid would testify that she brought the guilty pair their early morning tea. She would be shown a photo of the defender and would identify him as the man. The wife (who always wore deep mourning, with a hat and gloves), would then stand up and lift her veil and the witness would swear she was not the woman. She would then be corroborated by the receptionist, who had signed them in. He would produce the register and he, too, would be shown the defender’s photo, testifying that this was the man and the wife was not the woman. It was still thought prudent to produce the cheque, with which the husband had paid for the room. The marriage, by the by, was deemed sufficiently proved by the wife’s oath and her production of her marriage lines.

    For some reason, Gleneagles – a five star hotel in Perthshire, with an excellent golf course, was the preferred locus for these little pantomimes. I remember four such cases calling in a morning at the Court of Session and the same receptionist was a witness in three of them. I wonder if they had an arrangement with the listing office to have the cases heard together in batches, to avoid disrupting their staff schedule.

  14. “Because they are almost always guilty as sin. They are merely admitting a crime they have in fact committed. No judge will accept a plea bargain if the Defendant continues to assert his innocence”

    I don’t doubt it.
    I was referring to defendants who get shorter sentences in return for testimony against others.

  15. “I was referring to defendants who get shorter sentences in return for testimony against others.”

    Ah, the classic Jail House Snitch. I, and many of my brethren and sistren of the defense bar, do tend to think that often involves perjury. There have been prosecutions of prosecutors when they have clearly crossed the line but probably not enough. I like one local judge who will tell juries that they may believe a Jail House Snitch if they wish, but that invariably those individuals have a strong motivation to testify favorably for the prosecution and that jurors should consider that when determining the credence to give their testimony.

  16. “Does nolle prosse invoke double jeopardy?”

    No, it is merely a statement to the court that the prosecutor has decided not to move forward with a prosecution at this time and wishes to dismiss it. No jeopardy attaches.

  17. Michael Paterson-Seymour says:

    The maxim of the Civil Law is “Testis unus testis nullus” – One witness is no witness.
    Thank you Michael Paterson-Seymour. My knowledge of the law comes from Moses in Sacred Scripture. Jesus too, had much to say about Justice.

  18. Mary de Voe

    There is a fascinating work, the Collatio legum mosaicarum et romanarum [Comparison of the Mosaic and Roman laws] written some time between 294 and 313 AD, at Rome, almost certainly by a Jewish author.

    It draws out the similarities between the two codes, not only in their general principles, but in detail.

    There is really only one area in which the author stresses the superiority of the Mosaic law – God has not only given the poor the power to gather grapes in the vineyards and to glean in the fields and to take away whole sheaves but has also granted to every passer-by without distinction the freedom to enter as often as he likes the vineyard of another person and to eat as many grapes as he wants, in spite of the owner of the vineyard. This “preference for the poor” has led some scholars, such as Girard and Raabello to suggest Christian authorship, or, perhaps, interpolation.

  19. “If you ever have an opportunity, sit in on a criminal jury trial.”

    I’ve done that twice, both in the course of journalistic duties. One was a murder trial involving a man who had stabbed his ex girlfriend to death during an argument; the other involved a local public official accused of embezzling public funds (via credit card) to patronize a local gambling boat. Both cases ended with guilty verdicts; the murderer got 45 years in prison with no parole and the official got 30 months probation. Neither case was anywhere near as dramatic as what you see on TV or in the movies; they were just depressing, really.

  20. Michael Paterson-Seymour says:

    There is a fascinating work, the collatio legum mosaicarum et romanarum [Comparison of the Mosaic and Roman laws] written some time between 294 and 313 AD, at Rome, almost certainly by a Jewish author.

    This sounds very interesting and I will try to find the work. I am also fascinated by the comparison of the prophet Isaiah and our U.S. Constitution, sometimes using different words and saying the same thing. Most fascinating. Thank you for your kindness, Michael Paterson-Seymour.

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