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Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 1225 Deciding How We Know What We Know in Inherit the Wind
By NELL MINOW*
HOW DO WE KNOW what we know? How do we
decide what is true? These are the questions that are at the heart of the
disputes we resolve through the law. The issue may be whether the light
was green or red or whether the defendant reasonably believed the gun was
loaded or whether the parties signed the contract, but we can only reach
these questions by having some agreement about what "truth" is and how
we determine it. (Note that we are so respectful of notions of truth we
often put it in quotation marks, as I just did, to indicate that the author
is not suggesting he or she is presumptuous enough to appear to have decided
what the truth is.) Do we listen to our heads or our hearts? Do we believe
what we are told, or do we challenge it, asking questions and evaluating
the evidence? During some eras in history, trials were determined by tests
of faith. Goat entrails were read to answer questions of fact. Those accused
of witchery were dunked to see if they would prove their innocence by sinking.
But our current system is intended to determine the truth through logic
and empiricism, even when the issue before the court is one of faith.
Two beloved movies with climactic courtroom scenes present this issue in ways that help us to understand better the purpose and structure of our real-life courtroom dramas. The two films deal with the theme in sharply contrasting ways. One is a drama, and one a comedy. One is based not just on a real trial, but includes dialogue taken from the real trial transcripts. The other is a lighthearted fictional story, almost a fairy tale. Both include consideration of issues like relevance and probity of evidence to help decide the case. One crucial element in common is that in both the decision is strongly, even definitively, influenced by political considerations. Both have characters who are confronted with their rigidity, although one is rigidly committed to faith, and one to rationality. But the cases have very different conclusions. One comes out in favor of empiricism, and the other in favor of faith - yet in both cases the resolution is one most of the audience will find highly satisfying. The first is the 1960 film Inherit the Wind,1 based on the award-winning play by Laurence and Lee. The play was based on the famous Scopes "monkey" trial, a 1925 case in which the two greatest lawyers in America went to court in Dayton, Tennessee. They argued what was then called the trial of the century. It was not about a famous crime. It wasn't even one of the lawsuits that changed American life, like abortion or desegregation. The question it raised was how we define ourselves, but it was presented as a case about what we teach our children in school. In the real-life case, a high school teacher named John Scopes was charged with violating the state law that prohibited the teaching of Darwin's theories of evolution in public schools. The law said that what children should be taught should be based on faith, the story of creation as portrayed in the Bible. Scopes wanted to teach the latest scientific views based on empirical evidence. The national headlines about Scopes' arrest brought the most famous orator of the day, three-time presidential candidate and President Wilson's Secretary of State, William Jennings Bryan, to Tennessee to argue for the prosecution. The most renowned trial lawyer in American history, Clarence Darrow, volunteered his services for the defense in his only pro bono appearance. For the movie, the names and some of the facts are changed, but some of the dialogue is taken from the transcripts of the Scopes trial. In the movie, Dayton is Hillsboro, a small Southern town in an unnamed state. Scopes is called Cates and is played by Dick York. In the first scene, he is arrested in the presence of a clergyman and a man with a camera, there to record the arrest. It is clear from the beginning that the decision to prosecute Cates is based on politics and economics more than law (or even faith). The leaders of the village discuss the pros and cons of prosecuting the case, which has led to newspaper stories across the country. Some are concerned that the prosecution will give the town a reputation for being contrary to "progress." Some stand firmly behind the law, one saying he would "rather have some heathens laughing at me than have my sons laughing at the Bible." When they hear that Matthew Harrison Brady (Frederic March playing the character based on William Jennings Bryan) has volunteered to come to Hillsboro to prosecute the case, they decide to accept. The merits of the law aside, Brady's presence will "fill up the town like a rain barrel in a thunderstorm," which is good for business. But the town is solidly against evolution and for Brady. Brady and his wife (played by Florence Eldridge, March's real-life wife) are met by a parade filled with marching bands (playing "Give Me That Old Time Religion") and people waving signs declaring "Keep Satan Out of Hillsboro," "Down With Darwin," "Don't Monkey With Us," and "Godliness, not Gorillas." Brady is cheered by the entire town, and made an honorary Colonel in the state militia. E.K. Hornbeck (played by Gene Kelly, as a character based on acidic newspaper correspondent, H.L. Mencken) comes to town to cover the trial. He offers a bite of his apple to a young woman named Rachel, the daughter of the local preacher and the girlfriend of Bertrum Cates, sardonically comparing himself to the serpent in the Garden of Eden. Drummond, in the first of a series of contrasts with Brady, is met only by Hornbeck, whose paper has hired him to defend Cates. They are ignored or insulted by the residents, until they arrive at the hotel where Cates' students are waiting for him, to let him know that they are on his side. Drummond and Mrs. Brady greet each other warmly. It is clear they are old, close friends. Drummond had supported Brady's candidacy for President. Now they are on opposite sides. "Well," says Drummond, "that's evolution for you," and it is not clear whether he is talking about evolution as a divisive issue or his own evolution in thinking differently about issues since the days when he campaigned for Brady. In court the next day, the jury is selected and some preliminary issues concerning the best way to present the case fairly are discussed. That evening there is a prayer meeting. The clergyman gives an emotional speech asking that his own daughter be damned for siding with Cates. Brady objects; this goes too far. He comforts Rachel. That evening, Brady and Drummond have a quiet talk in rocking chairs outside the hotel. Drummond uses the preacher's extremism as an example. "You say you're going to give the people hope? I think you're stealing their hope! As long as the prerequisite for that paradise is ignorance, bigotry and hate, I say the hell with it." The trial begins. Cates' students testify about what they learned in his class. Brady calls Rachel as a witness, and both she and Cates are outraged. Brady wants her to testify about what she told him in confidence the night before, telling her, "We're here to serve the truth, Rachel, only the truth." Cates asks her not to repeat what he told her in private conversations, and he refuses to let Drummond cross-examine her. When it is time for Drummond's side, he tries to present a series of distinguished scientists to testify in favor of Cates. Brady objects; for him, the issue is simply whether Cates violated the law, and their testimony about the validity of Darwin's theories is not relevant. The judge agrees. Drummond is so furious that he asks for permission to withdraw from the case. Cates won't let him cross-examine Brady's witness, and the judge won't let him present his own. For him, the issue is not whether Cates violated the law, but whether the law violates a larger law. "I warn you that a wicked law, like cholera, destroys everyone it touches, its upholders as well as its offenders." That night, the town's demonstrations become even wilder. Cates is hung in effigy, and a rock shatters the window of his prison cell. Hornbeck says to Drummond, "Darwin was wrong. Man's still an ape." Drummond says, "What I need is a miracle." Kelly sardonically hands him the Bible. "Here's a whole bag full, courtesy of Matthew Harrison Brady." For Drummond, the Bible does not provide the answer. The next morning, he puts Drummond on the witness stand, as "one of the worlds foremost experts on the Bible and its teachings." Brady insists that "Every word in this Bible should be accepted exactly as it is given there." When asked how the sun could stand still, Brady says that the same God who created natural law can change it. Drummond says that he thinks one thing is holy: The individual human mind. In a child's power to master the multiplication table there is more sanctity than in all your shouted amens and holy holy hosannas. An idea is a greater monument than a cathedral, and the advance of man's knowledge is a greater miracle than all the sticks turned to snakes or the parting of the waters .... The Bible is a good book, but it is not the only book .... How do you know God didn't speak to Charles Darwin?2Drummond keeps pressing Brady on how he knows what he knows. When Brady finally says in frustration that God tells him what to support, the crowd turns against him for the first time. Brady is beside himself. That night, he tells his wife, "It isn't just this case! It's God Himself that's on trial." The same political considerations that led to the decision to prosecute Cates return as the mayor warns the judge that the Lieutenant Governor wants the publicity to "simmer down" because the election is approaching. The jury finds Cates guilty, but the judge imposes only a token fine of $100. Brady, hoping to claim triumph, wants to make a speech, but the judge adjourns the trial and the crowd leaves. It has been too much for him. He collapses, and shortly after, dies. Drummond is deeply saddened. "A giant once lived in that body. But Matthew Brady got lost because he looked for God too high up and too far away." Hornbeck looks at Drummond. "You're just as religious as he was." Drummond holds both books, the Bible and Darwin, one in each hand, and then puts them together and walks out of the courtroom. As in any courtroom drama, and indeed in any courtroom, the question of fairness arises over and over, but in this case it both surrounds and exemplifies the core issue of the case. How do we know what is true? If that depends, in some sense, on making it a "fair trial," what does that mean? How do we make it a fair trial? And how does our notion of fairness determine the ultimate finding? Note the issue of jury selection. A juror who says, "I believe in the holy word of God, and I believe in Matthew Harrison Brady" is excused. Apparently, even in a case that challenges the right of teachers and students to question the Bible, some notion of fairness requires that the issue be judged by someone who has an open mind. In that decision alone, whatever the verdict, Brady has lost. The issue of fact versus faith is being put before people who will consider it as a matter of intellect, and not as a matter of belief. The trial is about keeping one kind of information out of the classroom. But, as in any trial, a significant amount of time is spent on keeping certain kinds of information out of the courtroom, and it is very instructive to compare the way the issues are presented in both contexts. In science, all information is evaluated only on the basis of its accuracy and relevance. In law, these are also important. For example, the scientific testimony Drummond wants to present is excluded for reasons of relevance - whatever the scientists have to say has no relation to the issue of whether Cates violated the law or not. Another example is the objection to certain testimony as "hearsay," the staple of any courtroom drama, as it is in any courtroom. The legal system has determined that hearsay (reporting on what someone else has said) is not reliable enough to be used in court, with certain narrow exceptions. In other words, the likelihood that it will help us find the truth is outweighed by the likelihood that it will be inaccurate, and lead us to the wrong conclusions. At different points in the case, both Drummond and Brady say that all they are interested in is the truth. But in law there are some other concerns as well, beyond accuracy and relevance. Some of the challenges to information in the courtroom relate not just to relevance, but to a transcendent notion of "fairness," as with Drummond's request that prayer meetings not be announced by the judge, for fear that it will prejudice the jury. It is excluded, not just because it is irrelevant to the proceedings, but because it will tend to indicate the court's preference for creationism over evolution. Drummond objects to the fact that Brady is addressed in court by the honorary title of Colonel, just bestowed on him by the town. He believes it adds more weight to Brady's comments, and lends him a greater aura of respect and authority. How is it resolved? Surprisingly, not by addressing both attorneys as "Mr." (which would be "true") but by bestowing the same title on Drummond, albeit temporarily (leveling the playing field with a small lie - the title - in aid of a larger truth - that both men approach the court on an equal basis). Drummond asks that a sign outside the courtroom with the exhortation "Read your Bible" should be removed. Again, these decisions underscore a notion of fairness that assumes that ideas will be considered on their merits, and not just measured against a fundamentalist interpretation of the Bible. Then there is information that the jury has but is not supposed to consider. In this trial, as often happens, a lawyer objects to something a witness or the opposing lawyer has said, and the judge will sustain the objection and instruct the jury to pretend they didn't hear it, as happens here when Brady refers to Cates as having "gone astray." Of course, the jurors can't really forget about it (as Jimmy Stewart notably acknowledges in Anatomy of a Murder,3 one courtroom drama actually written by a lawyer), but they can be reminded not to rely on it in coming to a decision. Some information is kept out of the courtroom not for legal reasons, but for emotional ones. Cates will not let Drummond cross-examine Rachel. He decides that he would rather go to jail than see her put through that difficult experience. Some things are more important than truth, even to him. Once again, this is a sharp contrast to scientific inquiry. The issue of relevance is especially complex because the two lawyers are in essence arguing two different cases. Cates admits teaching evolution to his high school science class, and Brady and the judge try to keep that the only issue. But Drummond wants to argue that the law is so far wrong that it cannot and should not be enforced. He does not take the usual lawyer's approach of arguing that the law conflicts with a supervening legal standard. He just argues that a core principle of human existence is the importance of being given the chance to make one's own decisions about what to think. This issue is sharply presented when the judge rules against Drummond's attempt to read from Darwin in order to be able to ask Brady about it during the trial. Not only is it too dangerous and inflammatory for the students to hear, it is too dangerous and inflammatory for the jury, and perhaps even for the members of the community in the courtroom. One could say that this decision determines the outcome in two ways. First, the jury cannot determine the appropriateness of material it has not heard. Second, if the judge has determined that it is inappropriate for them, how can they determine that it is appropriate for their children? The judge will not let Drummond put Darwin on trial. Therefore, his only alternative is to put the refusal to consider Darwin on trial, and he does that in his cross-examination of Brady. In this movie about skepticism, science, and faith, Drummond does believe in one thing: the ability of the human mind to think, to question, and to know. While examining one of Cates' students during the trial he asks, "Did you believe everything Mr. Cates told you?" When the boy answers, "I don't know, I gotta think about it," Drummond responds, "Good for you! Good for you!" Drummond is not there on behalf of Darwin, and he is not there to argue against the Bible; he is there on behalf of open-mindedness. It is not Drummond who is the non-believer in this case; it is Hornbeck, the most cynical of newspapermen. He uses Mencken's famous words to explain the purpose of a newspaper: "To comfort the afflicted and to afflict the comfortable." When Drummond asks him whether he has ever been in love, Hornbeck answers, "Only with the sound of my own words, thank God." What does Brady believe in? Brady is not there on behalf of the Bible or even faith as much as on behalf of a narrow and rigid view that prizes certainty above everything else. His world is composed of platitudes and retorts. He is described by Hornbeck as "the only man I know who can strut sitting down." His responses are designed to deflect consideration of the merits. This is not a conscious strategic choice, but a reflection of his own rigidity and unwillingness to allow his ideas to be challenged. When Drummond shows him a fossil determined by geologists to be millions of years old, Brady says he is "more interested in the Rock of Ages than in the age of rocks." And when Drummond questions Brady, he shows just how easy that kind of faith is to crack, and how devastating the consequences are when it does. Drummond demonstrates that his method of finding the answers is able to prove one fact - that Brady's faith is superficial, based in fear, not strength. As Mrs. Brady says to Rachel, "Maybe it meant too much to him." In that sense, the filmmakers stacked the deck on this question and did not provide a completely evenhanded presentation of the story. It is clear throughout whose side they are on. A courtroom must be fair and objective; a movie can seldom get away with that without being static and a little boring. Just as Caste (Scopes) had ideas he wanted to teach his students, and Brady (Bryan) and Drummond (Darrow) had ideas they wanted to persuade the jury about, the writers and director of this movie had their story, too - their own version of what they thought was true, and like each of the characters and their real-life counterparts, they did their best to persuade their audience. Their audience's challenge is to do its best to determine what the truth really is. Who won this case, Brady, who was able to persuade the jury to convict Cates, or Drummond, whose view ultimately prevailed? How do we know what is the best way to find the truth - the Brady way, to have faith, or the Drummond way, to question? Which is each good for? Which is each bad for? What truth does the Drummond method show about Brady? Miracle on 34th Street4 takes a more lighthearted view of a trial over an issue of faith versus proof. In that movie, Maureen O'Hara plays Doris Walker, a relentlessly rational woman who has taught her young daughter Susan (Natalie Wood) that there is no reason for imagination or faith. She believes that if one avoids fantasy one can avoid getting hurt. Under severe time pressure, Doris hires Kris Kringle (Edmund Gwen) as the Macy's Santa Claus, only finding out later that he insists he is not just playing the part - he really is Santa Claus. Susan begins to believe him; and Fred (John Payne), the lawyer, who is hoping to bring some fantasy into Susan's life and some romance into her mother's, invites Kris to stay in his apartment. While Kris is by far the most successful Santa in Macy's history - resulting in free publicity of incalculable value - a mean-spirited personnel director insists that Kris is mentally ill, and Fred must defend him at a commitment proceeding just before Christmas. Like Inherit the Wind, Miracle on 34th Street concludes with a climatic trial scene. One is a serious, fact-based drama of law and politics, and the other a gentle romantic comedy, but the issue is the same: How do we know what we know? Fred decides that his defense of Kris will be that Kris is not crazy to say he is Santa Clause because he is Santa Clause. The prosecutor argues that Fred must first then prove that there is such a person as Santa Claus. Fred complies by calling an unimpeachable witness, at least unimpeachable by prosecutor Thomas Mara (Jerome Cowan). He calls Thomas Mara, Jr., the prosecutor's young son, who says he knows there is a Santa Claus, because his father told him so. This is a humorous, if unintentional, variation on Drummond's decision to put Brady on the stand. And just as Drummond won't cross-examine Rachel for emotional reasons, Mara cannot cross-examine his son. The point is conceded rather than proven. Once the state concedes the existence of Santa Claus, Mara calls on Fred to prove that he is Kris. Doris and Susan show their support by sending Kris a letter, telling him that they believe in him. At the post office, the postal workers see the letter addressed to Kris and decide to deliver with it the piles of letters to Santa Claus that they have not been able to deliver because they have no address. In court the next day, Fred presents testimony showing that the Postal Service, an agency of the U.S. Government, has an outstanding record for accuracy, and then showers the avalanche of Santa Claus letters on the judge's desk. The judge, acutely conscious of his upcoming bid for re-election, is only too glad to defer to the U.S. Postal Service. If Kris is good enough for the executive branch, he is good enough for the judicial branch. He issues a decision in Kris' favor. The theme of that movie is, "Faith is believing in things when common sense tells you not to." That sounds more like Drummond than Brady. Yet again, even in a romantic comedy, we see the issues of relevance and proof. First, Fred had to prove that there was a Santa Claus, and then he had to prove that Kris was Santa Claus - as logical and rational a set of requirements as a professor of mathematics could devise. Yet the first item was "proven" by making it impossible for the prosecution to deny, in the presence of his son, that Santa existed; the second was "proven" by the delivery of some letters addressed to Santa Claus. The judge does not rule on the basis of faith, and yet it would not be fair to say that he was persuaded on the basis of rationality. Like the Postal Service (and, significantly, the judge in Inherit the Wind) the judge made his decision more on the basis of expediency and politics than on analysis or any notion of "truth." The movie ends with a wink that allows the viewers, if not to believe that Kris is Santa, at least to enjoy the suspension of disbelief. The Scopes case portrayed in Inherit the Wind remains as vitally important today as it was more than 70 years ago. For example, in 1994 a teacher was fired for refusing to teach Darwin, because it was inconsistent with his political beliefs. The court ruled that he could believe what he liked, but he had to teach what he was hired to teach. The issue is not limited to science and other empirical studies. Other fights concern books like Huckleberry Finn and The Wizard of Oz. These cases may not have the benefit of Darrow and Bryan, the talents of playwrights Jerome Lawrence and Robert E. Lee, director Stanley Kramer, or the magic of Santa Claus, but they have the commitment of this country's system of jurisprudence to judge even questions of faith with a process designed to give both sides a fair opportunity to establish the truth of their positions. |
