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Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 991 (1996)
By SUZANNE SHALE*
"I had a professor, when I went to New York University.... I asked him, "What's the best way to study to become a writer, playwriter, write movies?' And he says, "Become a lawyer. Because they are so meticulous on structure ... [and] presenting a very dramatic thing.'"1 "We shall not look upon [Sir Edward Marshall Hall's] like again, for the age that produced him, and gloried in his spectacular triumphs in the courts, has passed away forever. The advocate no longer plays the part in our public life that he once did. The fashionable divorce suit, the sensational libel action, the great murder trial - they are no longer the dramatic events that once occupied public attention to the exclusion of almost everything else. The television star and the film actor, idolized by millions, now take pride of place."2 LAW AND THE CINEMA are both theaters of conflict, spectacles through which we understand essential aspects of our humanity and society. Drama and the law have always shared a close affinity, as Abby Mann's New York professor understood. To write drama is to articulate one's own understanding of the sprawling, ill-understood conflicts of human living in a tightly concentrated narrative of cause, effect, and belief. A legal opinion is, ultimately, the same thing: an understanding of the legal essence of a conflict, encapsulated in persuasive narrative. Just as drama has its texts, and the realization of text in theatrical performance, so too, with its written texts and the spectacle of the court, does law. The specter of the trial was never intended as a private dramaturgy. As Lord Birkett, one of Britain's most distinguished twentieth century advocates acknowledged, through its courts, law was a preeminent provider of the great social dramas of Birkett's era (a role it was eventually forced to share with the developing mass entertainment industries). The law has rarely sought the bland anonymity of bureaucratic adjudication. In Richmond Newspapers, Inc. v. Virginia, the United States Supreme Court recognized that public notice is the life stuff of the law,3 and the public to whom the law is brought to notice has been infinitely extended by the development of the mass media. But the mass media, as we know too well, are not transparent media. They operate according to their own practices and principles, selecting their preferred subjects and representing those subjects in their own terms. It is commonly observed, therefore, that the mass media so distort and misrepresent the activities of the legal system that they are irrelevant. Lawrence Friedman wrote, for instance: The products of popular culture are wildly off-key, even with respect to those parts of the legal system that they deal with obsessively. Cop shows aim for entertainment, excitement; they are not documentaries. They exaggerate ludicrously, for dramatic effect.... What people actually think about law, what they worry about, what they hope for, what they use, what they contend with, are not congruent with what goes into the picture tube, or with what comes out.4I. Introduction No medium, be it human speech, sign language, the plastic arts, television, radio, or film, can do otherwise than represent an object in accordance with its own conventions. But if it is true that law, legal ideas, and legal ideals are selectively misrepresented by our media of popular culture, it is equally true that it is through popular culture and the mass media that many people learn much of what they know about law. Unless we pay attention to how the mass entertainment industry represents law and the legal system, we cannot hope to know what relationship subsists between law and its subjects. Do the mass media of popular culture serve to orchestrate a popular commitment to law? What aspirations for law are expressed in popular culture? How do media conventions determine what aspects of law can cross over into popular culture? Once we are attentive to popular culture, we discover more about law than we might have expected. We discover that popular culture represents law in more ways than we might have thought. More importantly, perhaps, we also discover that it becomes difficult to determine where the boundary between law and popular culture lies. For example, if to call forth public condemnation and create private shame is one of the sociological functions of the trial,5 and if to rehearse ritual principles of social ordering through the enactment of conflict is another,6 then the boundary between real law and broadcast law can become at least a little blurred. Elsewhere, I have discussed the shame experienced by families of notorious criminals whose trials were reconstructed as radio broadcasts7 and suggested that there is little difference between the shame elicited by the trial and the shame elicited by the radio reconstruction of the trial. Rather differently, Philip Meyer has discussed how at least one trial attorney, seeking to present his defendant's story to a jury as compellingly as possible, adopted the same narrative conventions as the Hollywood movie to do so.8 Meyer concedes that most trial attorneys do not embrace such conventions self-consciously,9 and there is indeed much evidence to suggest that the narrative conventions operating in contemporary popular culture are spread widely through the history and geographies of human communities.10 We may, though, legitimately speculate upon the power of popular culture to sustain a storytelling culture in which certain narrative conventions become so much the norm, that one ignores them at one's own (or one's defendant's) peril. This essay is about the collision of two worlds, the world of the law and the world of drama in the form of cinema. In it, I consider the process of writing a trial movie based on real life events. Tracing the creation of the feature film from legal and life facts helps us to understand a little of how knowledge of law moves from the legal to the popular domain, how the dramaturgy of the law itself influences popular culture, and, further, how the conventions of popular culture form the structure of popular legal knowledge. What message, to recall Marshall McLuhan, is the medium of film? I will discuss the writing of two films, Reversal of Fortune11 and Judgment at Nuremberg,12 to show how the demands of film as a narrative medium affect the stories that films tell about law. I shall argue that some movies represent far more of the nature of law than we acknowledge. But I shall also argue that Hollywood movies are bound to represent law in what might best be described as an epic form. Reversal of Fortune, written by Nicholas Kazan and directed by Barbet Schroeder, tells the story of Claus von Bulow's appeal from his conviction for the attempted murder of his wife, Sunny.13 The prosecution claimed that von Bulow, wretched in his lusts for both his beautiful mistress and his wife's enormous wealth, tried to kill Sunny with injections of insulin. Von Bulow retained Harvard lawyer Alan Dershowitz to argue his appeal, and his claim of innocence was eventually vindicated following a successful appeal and a second trial.14 Judgment at Nuremberg was originally a television play written by Abby Mann, who adapted his own work into an Academy-Award-winning screenplay. Directed by Stanley Kramer, and acerbically described by one critic as an "all-star concentration-camp drama with special guest victim appearances,"15Judgment at Nuremberg is based upon the trial of a group of German judges and legal officials by the United States Military Tribunal in Nuremberg in 1947.16 The judges (ten in Nuremberg, but only four by the time they got to Hollywood) were charged with various offenses, including crimes against humanity, complicity in the degradation of the German legal system, and denial of due process of law to defendants. All were convicted of one or more offenses and were imprisoned by the American occupying forces. Along with many other minor war criminals, they were subsequently released by the Americans only a few years after the trial ended. How was the life-stuff of the von Bulow and Nuremberg trials reshaped in making Reversal of Fortune and Judgment at Nuremberg? Before we become embroiled in discussing details and distortions, I want to emphasize how very much of the two trials, and the work of the legal teams involved, infuse these films. To write Reversal of Fortune, Kazan estimated that he read some six thousand pages of transcript and legal argumentation, and it will surprise no one that the courtroom scenes were reconstructed verbatim from the trial transcripts. Neither is it surprising to learn that Dershowitz's appellate brief supplied Kazan with the points of fact, the points of law, and the many legal arguments he wrote into the mouths of Dershowitz's legal team in the film.17 What is perhaps more unexpected is to learn that Kazan found the brief's narrative so compelling that he took account of its structure in engineering the narrative of the film. In preparing the screenplay of Judgment at Nuremberg, Abby Mann read thousands of pages of trial transcript, corresponded with the legal principals, consulted other legal authorities with knowledge of the Nuremberg war crimes tribunals, and visited Germany, where he conducted research into the Nuremberg trials.18 The screenplay quotes verbatim from American law and jurisprudence,19 and some of the characters' speeches bear traces of the Nuremberg pleadings.20 To understand fully the processes by which the von Bulow affair and the Nuremberg trial were transmogrified into a satisfying feature film, we need to look on three levels at how film narratives are constructed.21 First, we must consider the narrative conventions that structure the paradigmatic Hollywood movie, shaping it into a tale of heroic odyssey. Second, we must look at the way in which a screenwriter creates a story from the life-stuff of events. In asking how a story22 emerges, I am asking how the writer creates a meaningful, thematic narrative rather than an inconsequential, flat recitation of occurrences. Third, we need to turn our minds to the problem of plot - that is, how the meaningful story is presented to the audience as a series of discrete events.23 Having found a meaningful story in the life events, the screenwriter must still establish a satisfying way of telling it. II. The Foundations of Form Hollywood requires stories to embrace a distinctive principle of causality and to be plotted according to certain conventions. Hollywood stories are ones in which the leading characters are propelled into some personal odyssey, in pursuit of something they desire. By the journey's end, their experiences will have changed them in a significant way.24 As David Bordwell has summarized it: The classical Hollywood film presents psychologically defined individuals who struggle to solve a clear-cut problem or to attain specific goals. In the course of this struggle, the characters enter into conflict with others or with external circumstances. The story ends with a decisive victory or defeat, a resolution of the problem and a clear achievement or non-achievement of the goals. The principal causal agency is thus the character, a discriminated individual endowed with a consistent batch of evident traits, qualities, and behaviors.25Bordwell argues that the principles of the conventional Hollywood narrative are not unique to the cinematic medium, but are, rather, the specific application of a "canonic" story form in American filmmaking. Research into story comprehension has identified a story structure widely used in western culture. This "canonical" story format embraces six elements: introduction of setting and characters, explanation of a state of affairs, complicating action, ensuing events, outcome, and ending.26 This is not so different from the three-part narrative structure embraced by Hollywood: the set up, complication, and resolution. This principle is most graphically articulated in Root's advice to "get your man up a tree," "throw stones at him," and "get him down out of the tree."27 If we compare the European cinematic narrative with the Hollywood product, however, it would appear that while the canonic story form is widespread, it is most markedly in Hollywood that these principles of narration have been refined, exaggerated, and elevated to a hegemonic position. Hollywood movies are stories about "character" and how character determines the outcome of life events. "Character" is the sum of a human being's personhood: biography, memory, virtues and vice, reactions, capabilities, potentiality, and weakness. In movies, we learn about such character when it is expressed in the actions which emerge from human conflict: conflicts between people, conflicts within a person, and conflicts between persons and their environments.28 Human lives and, perhaps even more so, movie lives, are littered with incompatible goals and incommensurate values. In the movies, it is the task of "character" to resolve the human conflicts that our goals and values create. It is always a character who takes steps, a character who makes choices, a character's responses that drive the story forward or spin it around in new directions. It is a character who overcomes, a character who changes or learns. It is the film's protagonist whose life lies at the epicenter of the narrative. His or her character and experiences power the narrative forward, and his or her observable beliefs and value judgements make manifest the meaning of the story. But for the protagonist to be a truly interesting character, there must be a demanding foe. Where the film's core conflict is a conflict between persons, it will be another character - the opposing antagonist - who will properly test the protagonist's mettle and provide the measure of his or her worth. In Judgment at Nuremberg, Abby Mann emphasizes the importance of character early in the film. In Judgment, the protagonist is Judge Haywood, a man who is possessed, we learn early-on, with all of the down-home, plain-speaking, salt-of-the-earth, and man-of-the-people American virtues.29 His antagonist - and in many respects his antithesis - is the German judge Ernst Janning: a repressed Teutonic archetype - intellectual, aristocratic, austere. Herr Rolfe, Janning's defense counsel, bespeaks the crux of the matter at the very outset of the case. (Note that it is Ernst Janning's character that is on trial at Nuremberg. Hence, for the movie audience, it is Judge Haywood's character that will be tried in the film.) Rolfe stated: The avowed purpose of this Tribunal is broader than the visiting of retribution on a few men. It is dedicated to the reconsecration of the Temple of Justice. It is dedicated to finding a code of justice the whole world will be responsible to. How will this code be established? It will be established in a clear, honest evaluation of the responsibility for the crimes in the indictment stated by the prosecution. In the words of the great American jurist, Oliver Wendell Holmes, "This responsibility will not be found only in documents that no one contests or denies. It will be found in consideration of a political or social nature. It will be found most of all in the character of men."In Ernst Janning, Abby Mann has rendered the real defendant Schlegelberger a much more sympathetic character. The real Schlegelberger played a significant role in executing the savage "Nacht und Nebel" ("Night and Fog") plan, whereby the civilians of occupied countries involved in resistance activities would be dispatched to face summary justice in secret trials in Germany.31 Schlegelberger was also responsible for drafting laws for the occupied territories which imposed the death sentence on Jewish and Polish citizens for nothing more than speaking out against Nazi occupation.32 Ironically, the Schlegelberger that the Law Reports portray, a man who acted with unmitigated inhumanity, would have been a character for cinematic purposes too stark, too villainous, and too quaintly melodramatic. The fictitious Janning, on the other hand, a smoldering amalgam of shame, pride, and repression, is the far more plausible character. Whether hero or anti-hero, if the movie is to succeed, the audience must find itself able to identify with the protagonist. How? The most compelling invitation to identify oneself with the screen character is offered when the protagonist is forced by the narrative to make hard choices and difficult decisions. This is the moment when the audience recalls the agony of minds we would rather not make up, and are generous with our sympathy for characters who cannot avoid doing so. In the courtroom, the advocates and the judges, who must decide from moment to moment how to conduct the case, are the decision-makers. In courtroom drama, therefore, the protagonist is frequently an advocate, and if not an advocate, a judge.33 In writing Reversal of Fortune, Nicholas Kazan was very conscious of the need to persuade his audience to identify with Dershowitz, and at the very least, suspend judgement on his decision to defend the unappealing von Bulow. He accomplished this task in two ways: first, by making us privy to Dershowitz's hard decision; and second, by dramatizing an account of Dershowitz's justifications in a satisfying on-screen conflict. Comparison between Dershowitz's book and Kazan's screenplay yields a fine example of the dramatic sleight of hand required in pursuit of Kazan's first strategy - that is, demonstrating Dershowitz's dilemma. Some ten minutes into the film, Dershowitz is summoned to New York to meet von Bulow, who intends Dershowitz to take his case, and assumes he will do so without demur. The two repair to a chic restaurant, there to discuss, von Bulow believes, the only outstanding matter - the scale of Dershowitz's fee. Dershowitz's response, however, is not what von Bulow expects: Claus: So if I choose to pay the $300, then you will handle my appeal? It is not for some five minutes that we learn that Dershowitz will indeed take on von Bulow's appeal. As he explains it to his son, Elon: Dershowitz: Reminds me of my Hitler dream. Hitler calls. He's alive, needs a lawyer. I say, "Sure, come on over." ... Then I have to decide: do I take the case or do I kill him?In his book, however, Dershowitz gives a significantly different account of his meeting with von Bulow: Before agreeing to take this case, I insisted that Claus read the galley proofs of The Best Defense, a book about several of my earlier cases which was about to be published. The book described my confronta- [1002] tional legal style as well as my impression that the vast majority of convicted defendants were guilty, and I wanted von Bulow to know exactly what he would be getting if he selected me to argue his appeal.... [During lunch von Bulow made his position plain.] "I have several problems about retaining you," Claus explained. "But they're my problems, not yours." ... The first problem, he explained defensively, was that some of his acquaintances were upset at the prospect of "an aggressive Jew" taking over the case.36In Dershowitz's own version of events, he had dispatched himself to von Bulow's Manhattan haunt, hungering for the brief. But Kazan could not place his protagonist in such a weak position. It is the protagonist whose choices must drive the action. In the film, therefore, it must not be von Bulow but Dershowitz who is faced with the difficult decision the consequences of which will shape the ensuing narrative. In deciding how to resolve the dilemma he describes through his Hitler dream, the fictional Dershowitz demonstrates that where character is action, it is also values and beliefs. In Reversal of Fortune, the first "force of antagonism"37 the fictional Dershowitz faces is his subjective belief that von Bulow is guilty of attempted murder. His conviction that the jury delivered the right verdict in von Bulow's case confronts his commitment to the principle of zealous advocacy, and the story can move forward only when he has decided which will take precedence.38 It is part of human character to struggle with beliefs and part of movie character to act out those struggles on our behalf. In the best films, that process of empathetic acting-out binds us to those characters who conduct the struggle for us. Shortly after the scene in which Dershowitz and Elon discuss von Bulow's probable guilt, Kazan inserted another scene in which Dershowitz could justify, to the audience, his decision to take on von Bulow's defense. Kazan believed this to be a crucial scene, persuading the audience to support the protagonist and his unfashionable belief in the doctrine of zealous advocacy.39 Called to account by a skeptical student, Dershowitz's argu- ments in his own defense encapsulate the narrative potential present in the role of the lawyer in an adversarial legal system. Dershowitz, who appears in the movie to have been sanctified Patron Saint of Defense Attorneys, portrays the lawyer as a prototypical lonely hero, a beacon of light and hope shining in a landscape of conflict. Dershowitz: Two big problems. The case against him is very strong. But probably more important, the legal conviction isn't the only conviction that we gotta reverse. The more dangerous conviction is the absolute certainty of the American people that Claus is guilty. Finding grounds for reversal won't be enough here. Judges on the Rhode Island Supreme Court will have to go home to their spouses and explain why they reversed. Get "em to do that, we gotta completely annihilate both the State's medical case, and their witnesses, so the judges have no possible way to affirm. Total victory or we're dead in the water. I assume you've all looked at the transcript. First impressions? Minnie? the mailman's looking at you funny .... But there's one person who believes in you, one person you can trust. Your lawyer.40 As is apparent from the scenes above, Kazan took care to ensure that he had a clear protagonist whose person and whose goal were such that the audience would find themselves on his side in the unfolding story. Although Kazan's screenplay clearly satisfied Hollywood narrative requirements, Kazan recalled that he was also strongly influenced by the dramatic structure of Dershowitz's original legal submissions. In an approach reminiscent of the advice Abby Mann was given by his New York University professor, Kazan claims that he organized his screenplay around the structure of the appellate brief. To Kazan, the brief was like a juggling act: There was this problem with the prosecution, there was that problem with the prosecution. There was this new evidence, there was that new evidence. Every time you sent somebody out to explore new evidence in an area, they always seemed to come back with something. So I was trying to proceed similarly, dramatically - on many different fronts.... I was trying to dramatize it in the way that I saw it; in the way that I experienced the brief. Which was that this wasn't a case of "if we can get this one thing, then we can win." It was, "we have to get all of these things in order to win." ... It was a case of seeing and analyzing the legal case and trying to figure out a dramatic structure which would fit that.41 III. The Search for Story Within the opportunities and constraints of the canonic structure, there is still an infinity of story choices to be made. I want to move on now to consider the creation of story from life events. E.M. Forster illustrated the difference between flat narration and meaningful story as the difference between recounting "the king died, and then the queen died" and "the king died, and then the queen died of grief."42 The difference between story and a simple series of events is a principle of causality that permits us to ascribe some meaning to what happened. Story is therefore the outcome of a writer's point of view and the events with which she is concerned. Events are given story meaning by a writer's beliefs and values, and her own ethical sense of the material with which she is working. It is the power of both law and drama that they operate analogically. In the telling of one story, we can be commanded or encouraged to bring to mind another. In some courtroom movies, as in Reversal of Fortune, the trial we see fought on the screen invites us to reflect only upon itself and its own meaning. In others, the trial in the movie may also argue, by implication, a quite different case. In Judgement at Nuremberg, the trial is ostensibly a tale about the evils of the Nazi legal system. But Mann wrote it in such a way that in the conflicts between moral right and logic43 and between justice and political expediency, the movie recalls not only Nazism and the Nuremberg trials, but also McCarthyism and Hollywood's complicity in it. Many stories could have been written about the Nuremberg trials, and the story Mann told reflected his own beliefs. He constructed the courtroom scenes so that they would lead the audience toward his own views about Nazi law, rather than point ineluctably toward the Tribunal's stated conclusions. Mann felt that the judgment of the Nuremberg tribunal over-emphasized the importance of denial of due process and under-emphasized the depravity of the substantive laws under which the victims of Nazi racial ideology were tried. In his movie courtroom, Mann chose to emphasize the intrinsic inhumanity of Nazi laws. In one scene, Petersen, a confused and not very clever laborer, testifies about the proceedings that led to his sexual sterilization. When Petersen is cross-examined, Herr Rolfe has no difficulty in establishing that Petersen is indeed mentally incompetent and could legitimately have been sterilized under the eugenic laws. But Rolfe's legal "victory" brings him little satisfaction, and the audience is left with no doubt that Mann believes such laws to have been morally wrong in and of themselves, however correct the procedure by which they were enforced.44 But Abby Mann also wanted to write a screenplay that reflected his concern for the state of America, as well as his compassion for the victims of the Holocaust: It was very much on my mind [that] there were writers like Dalton Trumbo and John Howard Lawson, writers who had been blacklisted.... I came after that and I tried to help them, I tried to get them jobs. And so the fact that this could happen, could have taken more steps ... that was very important. And the big thing that was bugging me too was ... I wanted to pierce the lie; the big lie [in Germany] was, "we didn't know about it." ...There were certain emotional feelings that I had, I don't think that I violated the basis of the trial ... but these things were very much on my mind.45 Judgment at Nuremberg is a serious attempt to explore the significance of the Nuremberg trials, but Mann's initial outline of the film suggests a depth and sophistication diluted in the process of preparing the commercial presentation. It is this author's opinion that it was Kramer who was responsible for injecting into the movie the sentimental liberalism of which some commentators were so critical.46 The first outline Mann submitted to Kramer was an exploration of many more of the moral conundra of the war crimes trials than are discussed in the resulting film. Straightforwardly, there was more law in Mann's outline: more explanation of the difference between the German and American legal systems and their conceptualizations of the role of the judge; more discussion of the nature of the charges being brought against the defendants; more concern with the legitimacy of the military tribunals. The figure of Judge Haywood, too, was drawn more complex and ambivalent, an exploration of the character of a man of modest esteem as he rises, unexpectedly, to the occasion of judgment.47 Judge Haywood appeared in Mann's outline with a wife and daughter who served the narrative by drawing it into the sexual and material chaos of Nuremberg, in images of defeat which were to be juxtaposed against the sanitized order of the trials. The novelistic complexities that these characters intro- duced appear to have been sacrificed in pursuit of the entrenchment of Judge Haywood in the role of the lone protagonist, an approach that was perhaps more appropriate to the condensed cinematic form.48 As Nicholas Kazan carried out his research for Reversal of Fortune, wading through six thousand pages of affidavits, trial transcripts, legal briefs, and von Bulow memorabilia, he found himself alternately convinced of Claus's innocence and then equally convinced of his guilt: [R]eading one document I see that he is totally innocent; whereas I read something else, I say, no - he is acting guilty. So that's why Dershowitz says [in the film], "I'm proceeding on two things. I'm trying to vindicate you. But I'm trying to find out the truth."49Kazan finally decided that although von Bulow was probably not guilty of the offense with which he had been charged - attempted murder by means of insulin injection - he was probably guilty of something. Formulating his own view of von Bulow's guilt was a necessary precondition to the creation of Kazan's tale. In the end, Kazan chose not to tell a story about a fight to vindicate an innocent man. Rather, he decided to tell a more complex and ambivalent story about the value of fighting to establish a man's legal innocence even where he may bear some moral guilt.50 I certainly could never convince myself that this man was totally innocent in the more primitive sense of having nothing on his conscience. So I didn't want to make a film which wildly professed his innocence if, you know, when I met my maker I'd be tapped on my shoulder - "By the way, this is a dreadful thing, but Claus was guilty." ... Hence the end of the film ... I did want to leave it open, because I feel the essence of the human condition is that we never know for sure.51We have seen that satisfying Hollywood stories will center on interesting characters making hard choices, and that their choices will in some way reflect screenwriters' own beliefs. Although American movies very successfully explore the drama in small lives and, in global terms at least, small choices,52 the cinematic imperative seems to require stories about the law to embrace epic struggles and heroic choices. For example, jury studies suggest that few jurors would possess the conviction and determination to stand alone, and even fewer would possess the wisdom that would enable them to persuade eleven others to change their minds.53 If the jury in Twelve Angry Men is eventually to vote in favor of acquittal, factual realism would demand, as Friedman has pointed out, that their initial vote in favor of conviction should be a majority by only the smallest margin. In Hollywood, however, the greater the obstacles confronting the protagonist, the better the drama; so Fonda's juror is forced to set off on his odyssey alone.54 If Hollywood misrepresents the facts of the legal system quite frequently, it perhaps misrepresents its values rather less. Where dramatic need drives it to distortions of fact, dramatic need also draws it towards the very real conflicts that lie at the core of the law. Is it better that ten guilty men are acquitted than one innocent one is convicted?55 Why do advocates defend guilty men?56 Is the state to be trusted with the powers it arrogates to itself?57 Do we lose sight of justice in the labyrinth of legal routine?58 Do legal rules displace justice?59 Are jurors reliable arbiters of matters of fact?60 Is justice just a matter of who has the deepest purse?61 However unusual may be the lawyer who embraces such ethical conundra in daily legal life, such questions are truly a part of the human drama of a fallible legal system. They concern us because they emerge from the awesome combination of human fallibility and institutional power. If each of us are lucky, matters like the presumption of innocence, prosecutorial malpractice, or illegal search and seizure will never impinge upon us as individuals. If they ever do, the great constitutional debates will become very immediate and very compelling. IV. Presentation and Plot Both Abby Mann and Nicholas Kazan had as their first creative task to discover what was, for them, the true story of the events about which they wrote. Only then could they organize events from the months and months of trial and pre-trial work into a plot capable of illustrating the aesthetic and factual truths in which they believed. How is it possible to compress the human action of twelve months into two hours?62 The writer must make a highly restricted selection from fac- tual material. He may choose to adapt the strict reality of facts to suit the needs of the emerging screenplay, or he may invent entirely new, fictitious material. In making the selection of factual material, a major consideration is obviously whether a particular event or episode is crucial in advancing the telling of the story. But events may also seduce the writer who finds them, in and of themselves, dramatically interesting.63 When Kazan read the testimony of Claus von Bulow's former mistress, a soap-opera actress named Alexandra Isles, he was convinced that she was trying to win Claus back from the witness stand. The dramatic impact of her testimony persuaded him to include sections of it in the film, even though it was of very little significance to von Bulow's appeal. Kazan would, I think, justify its inclusion on the basis that it offered a further opportunity to explore von Bulow's character. But it feels inorganic and unnecessary for purposes of exposition, and possibly it was included simply because Kazan found it such a fascinating moment of human behavior.64 Where the trial transcript seduced Kazan to recreate what he believed was the authentic personal drama of Alexandra Isles' testimony, it seems that Abby Mann had to be persuaded to create a conventional romantic drama around the figure of his Nuremberg judge. The character of Madame Bertholt, Judge Hayward's "love interest," was born quite late. She came into existence sometime between the outline Mann initially submitted to Kramer and his first draft of the screenplay. While the love interest seems a harmless enough element in the film, it elicited vigorous complaint from the film's legal advisors. They objected that if the story was a true one, Judge Haywood's liaison would have been highly unethical. In their view, the fictional romantic subplot was defamatory to the real Nuremberg judge upon whom Haywood was based.65 However tangential to legal argument are the details of human drama, cinema demands them. However important an event in legal life, if it impedes dramatic storytelling, it will likely be excised by the screenwriter. In the movies the claims of drama may have to be placed before the claims of legal truth or verisimilitude.66 "At bottom," Alan Dershowitz believed, "the case against Claus von Bulow was a scientific case."67 But Kazan felt that it was simply not possible to convey the complexity of the scientific and medical evidence to a movie audience without losing the dramatic momentum of the film, so much of the scientific argument in the brief was disregarded. It would seem to be over this question of selection of plot events that Friedman's criticism of popular culture bites hardest. On the other hand, popular culture is attentive to the drama of life itself. We have already seen that, believing it to be the best way to capture the dramatic truth of the von Bulow story, Kazan adapted the conventions of the character-driven plot to accommodate the structure of Dershowitz's appellate brief. In Kazan's view at least, legal truth and art served one another. Kazan also suggested that where the audience does in fact know that a cinema story is based on a true story, they will more willingly suspend disbelief and accept a degree of narrative confusion that would not be tolerated in pure fiction.68 If the dramatist and audience generally anticipate at least some attempt to serve the Aristotelian unities of time and place, it is also accepted that the complexities of life may sometimes defy the boundaries of art: [W]hen you present something and say this is the case, then the inconveniences of the truth have to be viewed as assets and not as liabilities. Then any time you come to something which is dramatically inconvenient, you have to remind the audience that what they are seeing is true. If you do that, I think the audience will give you great goodwill, will give you a lot of license, and they will accept things in the drama that they would not accept where there's fiction. Let me give you an example - in the film The Last Emperor it is all taking place inside the walled city. And then all of a sudden, the Emperor goes off to Manchuria, and becomes King of Manchuria, and has all of these women around - is doing something totally different. Had that been fiction, the audience would have left the theatre at that point, because you think you are seeing one story and suddenly you are seeing another. Because it is true, you say "Well, alright, this is going to be a messier narrative then." But it is true, so you accept it.69In the earlier discussion of Twelve Angry Men, I touched upon that distinction, so central to art, between factual truth and dramatic truth. Plot, no less than story, may embrace the same distinction. In an early scene in Judgment at Nuremberg, Ernst Janning refuses to concede the jurisdiction of the tribunal: Haywood (addressing Janning): How do you plead to the charges and specifications set forth in the indictment against you - guilty or not guilty?While Schlegelberger himself did not challenge the jurisdiction of the tribunal, many of the war criminals did refuse to acknowledge it. The issue of jurisdiction was discussed in the Alstötter trial, and legal scholarship was cited in judicial opinion. One member of the tribunal, Judge Blair, entered a dissenting opinion regarding the extent of the jurisdiction that the military tribunals claimed for themselves. Haywood's response, to formulate a legal answer from a refusal to speak, acknowledges an important truth about the obduracy and inescapability of trial procedures. There was, therefore, much legal truth in that fictional exchange, although Mann maintains that he wrote the scene for purely dramatic reasons.71 V. Why Don't Trial Movies End When the Trial Ends? While openings are very richly privileged moments in a film's address to the spectator, the ending is the final product of all the narrative's labors - the end is privileged both during and after the viewing as a source of validation of the reading process. ... The ending stands as the final address to the spectator, the place where the story may be resolved and where the narrative discourse may close.... As Armine Kotin Mortimer writes, "Readers cannot possess a story's meaning until they know the end."72The main question I want to address in this section is how trials and trial movies come to an end. I have argued throughout this paper that trial movies perhaps have more in common with the law than we customarily think. I want to pursue that argument further by comparing how a movie narrative brings conflict to an end, with the way the trial at law brings conflict to a conclusion. Although not all movies terminate their story according to the same principles, in Hollywood, by and large, they do. The conventional Hollywood story form adopts the narrative mode of the classical tradition, in which the story firmly concludes with a sense of satisfying completeness.73 What makes us feel that sense of satisfaction, of desirable closure? The answer lies in the play of the main components of Hollywood narrative we have already identified: character, action, conflict, and change. The protagonist's struggle to achieve her goal, and the transformative effects of this odyssey, must have reached some resolution before we feel that matters have been brought to a close.74 Part of the pleasure of watching a movie is to learn what the protagonist's goal may be and then look forward to finding out how or, indeed, whether she achieves it. Courtroom dramas rarely end immediately when the trial ends. There is almost always more to be resolved, a scramble of loose ends, a belated epiphany, a final twist or unanticipated denouement. While some trial movies merely require a brief epilogue, a dotting of i's and crossing of t's, the majority still have some story distance to go. A Few Good Men closes, unusually, as the lawyer walks from the courtroom. In the Name of the Father ends soon after the trial comes to a close, but cannot resist an epi- logue referring to the lives of the characters as they continued beyond the confines of the film narrative. In Judgment at Nuremberg, Judge Haywood has still to have important discussions with Hans Rolfe and Ernst Janning, and Madame Bertholt has still to retreat from him, before his story ends. In Let Him Have It, we have still to witness Derrick Bentley's execution before the film closes. In Reversal of Fortune, Claus has a meeting with Dershowitz and one last bad joke to go. In Music Box75 and, famously, in Witness for the Prosecution,76 the story has still to turn a crucial twist before the meaning of the film's trial events is made clear. Indeed, the ending in Witness for the Prosecution subverts the meaning of the entire preceding narrative. Each film closes at that point in the narrative when all of the key elements of the protagonist's story have reached a resolution. The ending of the trial will coincide with the ending of the movie only where the trial itself has resolved the last of the major dramatic conflicts the story has set in motion. In the Name of the Father can finish shortly after Gerry Conlon's appeal hearing secures his release from custody because we have already seen how the miscarriage of justice and his experiences in prison transform the innocent Conlon from a callow youth to a man of judgment and determination. Judge Haywood's story continues beyond his tribunal verdict because Judgment at Nuremberg is about Judge Haywood and his attitude toward justice. His verdict is only the beginning of a sequence in which we come to see and understand the spirit of the man and the full import of his decision. Music Box, the tale of a woman lawyer defending her father who is accused of concealing his fascist past, does not close its story at the end of the trial because the film is about the age-old conflicts between love and duty, and loyalty and truth. In Music Box, the trial is not supposed to resolve the underlying dramatic conflict. It is in the story to provide the most strenuous and symbolically significant test of the daughter's loyalty, as she wavers between her desire to believe that her father is innocent and her fear that he is not. Witness for the Prosecution is as much a story about the testing of a great advocate as a story about the trial of the defendant. At the end of the criminal trial, Charles Laughton's advocate's greatest challenge - the unfamiliar humiliation of having been deceived - is yet to come. Reversal of Fortune is an interesting example of a film which achieves closure while refusing to answer the questions it raises. The narrative in Reversal runs on beyond the judgment in von Bulow's appeal because Dershowitz, the protagonist, still has no satisfactory answer to the conundrum of Sunny von Bulow's coma, and he will never entirely understand the enigma that is Claus von Bulow. The film declines, however, to supply answers to those questions. It nevertheless secures closure by restating the meaning of the story. First, it allows Dershowitz a last opportunity to express his ambivalence about von Bulow at their parting, when he states, "Hey, one thing. Legally, this was an important victory. Morally, you're on your own."77 Then, in a final ambiguous jest, Claus walks into a newsstand to purchase some cigarettes. Observing the day's front page news - the verdict in the von Bulow appeal - he looks back at the tobacconist's assistant and asks for a vial of insulin along with the pack of cigarettes. We know both that the story is at an end, and that Claus is the only one who can ever know what really happened. There are, I believe, two worlds of meaning in trial movies. These films supply stories of trials within or alongside stories about protagonists. The story of the trial is the story about a conflict defined in pseudo-legal terms which has to be fought within pseudo-legal terms. If the conflict is a pseudo-legal conflict, then the resolution may be no more than a pseudo-legal resolution, answering none of the meaningful human questions which underlie the film. In the Name of the Father's pseudo-legal conflict does indeed provide the resolution of a major dramatic conflict. In Music Box, however, it is simply another obstacle in the protagonist's quest. Only when the conflicts created in the protagonist's trial-by-life can be resolved by events in the court of law will the two stories conclude at the same point. I suggest we find a very similar principle at work in real life and in real life trials. What are the principles of closure and resolution in the real legal trial? The contemporary trial is a narrative conflict. Stories of things done or not done are tested and proved78 within the framework of narrative relevance supplied by substantive and adjectival law. Just as films are made for an audience, so is the trial. Just as it is true of films and literature that the audience cannot know the meaning of the story until we reach the end, so that is true of trials, too. Not until judgment supplies the ending do we know whether the story was one of an innocent man vindicated, a guilty woman punished, liability found, or responsibility avoided. On occasion, the story of the trial very publicly continues beyond the point of closure. It might become, as O.J. Simpson has discovered, a narrative of racial prejudice, or it may become the narrative of a miscarriage of justice, a narrative of appellate judgment, or a narrative of vexatious litigation. The fact that some trials rather dramatically fail to resolve the conflict they embrace, while others appear to achieve closure, might have encouraged legal scholarship to consider in general terms the principles of finality upon which trials operate. On the contrary, however, there is astonishingly little discussion of the way in which trials bring things to a close. Far more discussion has been devoted to how disputes arise and are transformed in legal process79 than has been devoted to a general theory of how trials actually settle the dispute. It is taken as given that the trial settles the dispute by rendering judgment, and it is perhaps blindingly obvious that the trial itself moves towards closure as the requirements of the law are progressively exhausted. But forms of trial by ordeal, now happily defunct along with the social and religious understandings which sustained them, remind us that the principles of resolution which trial disputants will accept differ in societies over time.80 Rational narrative adjudication seems, by and large, appropriate to us, but it is important to recognize that it is a specific form of legal adjudication rather than the only form.81 The repair of social relations requires a dramaturgy which will demonstrate group values and commitments.82 Trials by ordeal deploy and re-enact assumptions about causality and responsibility derived from religious faith and supernatural beliefs. Consistent with those specific beliefs, the trial presented a dramatic account of the meaning of the conflict, and a narrative sustained by conclusive principles of proof. The rational narrative trial may appear to have little in common with the trial by ordeal, but the narrative trial, too, deploys and re-enacts cherished assumptions about cau- sality and responsibility. These are derived now from the secular faith systems of modern society, expressed in rational humanism, logic, and science. Consistent with modern beliefs, the contemporary trial stages a drama of legal rules and meanings and rational proofs. Although in general terms the contemporary trial reflects contemporary belief systems, we must also recognize that law and legal process are specialized and exclusionary narrative strategies. The legal trial stages the resolution of legal problems. In order for the court to provide a legal answer, the law must translate the problem into a legal question. A trial may fail to resolve the conflict it is asked to address because by the time the question gets to the court, it has little bearing on the underlying cause of the dispute.83 A rather obvious example is cases concerning access to children by warring parents, where the determination of the court to enforce access by one parent is not infrequently met by an equal determination on the part of the other parent to thwart it.84 The sad problem of such cases is that the application of law to the dispute does nothing to heal the underlying unhappiness resulting from the breakdown of what was once a loving relationship. In many legal conflicts we will find the rambling story of the human dispute, and within that or alongside it, the smaller story of the trial. Real life legal dramas, like movie trials, may or may not resolve the human conflict that underlies them. The legal trial will only settle a dispute if the human conflicts that activate it can be composed around the possibility of closure. It is not the fact of loss or victory that secures resolution, but a narrative act, which consists of accepting that the story is over. Perhaps popular culture teaches us the important social skill of sensing an ending. Conclusion Laws, courts, and trials are fecund sources of stories about values and beliefs, offering as they do an abundance of adversaries, antagonistic forces, and unenviable dilemmas. The adversarial trial in its ideal form offers unparalleled opportunity to explore character through conflict. Substantive laws or legal concepts might supply the major obstacle to overcome.85 There may be specific precedents to be discovered or distinguished86 and "objections" offer opportunities to create both conflict and cinematic suspense.87 The need to find missing evidence,88 to offer an innocent interpretation of apparently incriminating facts,89 or to show that apparent "facts" are nothing of the sort90 all require lawyer protagonists of prodigious energy or ingenuity. Managing the witness,91 managing opposing counsel,92 or managing the jury93 requires lawyer protagonists to make sagacious assessments of human behavior. Even in the best managed case, a biased judge94 or undetected perjurer95 can solicit the audience's condemnation of a terrible injustice. And after all that, the protagonist's greatest foe may even turn out to be the one lurking in the character of the client.96 All of these legal operations offer an inexhaustible supply of every kind of decision - from the awkward to the awesome - for our legal protagonists.97 It may be that the pursuit of human truth and dramatic truth in celluloid law results in real law and legal institutions being understood not as daily realities, but in epic terms and at mythic levels of understanding.98 It may be that we understand rather well the nature of legal ideals, but that we are terribly ignorant of the law. We know so little about what the public knows about law that this can be no more than informed speculation. If we assume that film audiences are attentive to what Hollywood teaches, we might expect the common weal to be cognizant of the great themes and grand conflicts of law, while remaining unaware of its day-to-day routines. Rather than confine my gratitude to the small print of the footnotes, I want to conclude this article with my thanks to Abby Mann and Nicholas Kazan for creating the screenplays with which it has been such a pleasure for me to work. I should also like to thank them for graciously giving up their time to be interviewed. When I arrived in Los Angeles to visit Abby Mann, I discovered that he and his wife Myra had suffered an arson attack on their home. It had been carried out, they assumed, by people angered by a television movie they co-wrote about the McMartin child abuse scandal.99 Their determination to continue to write about the truth as they see it remains undiminished, and I salute their bravery. Alan Dershowitz has described the process of preparing an appellate brief as "somewhat akin to producing and editing a TV program ... TV producers begin with an unformed mass of data that they eventually reduce to thousands of minutes of videotape. From that tape they must cull a very few minutes that dramatically and accurately reflect the major issues." ALAN M. DERSHOWITZ, REVERSAL OF FORTUNE - INSIDE THE VON BULOW CASE 118 (1986). 2. Great Advocates (BBC radio broadcast, Apr. 16, 1961) (the first in a series of portraits by Lord Birkett reviewing achievements of outstanding members of the English Bar). 3. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 568 (1979). The case discusses the importance to society of media access to trials. 4. Lawrence M. Friedman, Symposium: Popular Legal Culture: Law, Lawyers, and Popular Culture, 98 YALE L.J. 1579, 1589 (1989). In a similar vein, see Rochelle Siegel, Presumed Accurate: When the Law Goes to the Movies, A.B.A. J., Aug. 1990, at 42. 5. See generally Harold Garfinkel, Conditions of Successful Degradation Ceremonies, 61 AM. J. SOCIOL. 420 (1956). 6. See THURMAN ARNOLD, THE SYMBOLS OF GOVERNMENT 128 (1935); LEWIS COSER, THE FUNCTIONS OF SOCIAL CONFLICT (1956). 7. Suzanne Shale, Famous Trials and Infamous Families: A Radio History of Shame 1923-1969, 59 MOD. L. REV. (forthcoming Winter 1997). 8. See generally Philip N. Meyer, "Desperate For Love": Cinematic Influences Upon a Defendant's Closing Argument to a Jury, 18 VT. L. REV. 721 (1994) [hereinafter Meyer, "Desperate for Love"]; Philip N. Meyer, "Desperate for Love II": Further Reflections on the Interpenetration of Legal and Popular Storytelling in Closing Arguments to a Jury in a Complex Criminal Case, 30 U.S.F. L. REV. 931 (1996) (both discussing the compelling closing argument by Meyer's colleague, Jeremiah Donovan, on behalf of a defendant charged with violating the RICO statute). 9. Meyer, "Desperate for Love", supra note 8, at 747. On the other hand, the attorney who is the subject of Meyer's piece did adopt dramatic strategies purposefully and with great success. Id. at 748. 10. For a discussion of the canonic story form in the context of film narrative, see DAVID BORDWELL, NARRATION IN THE FICTION FILM (1985). For an excellent overview and discussion in the context of law, see BERNARD S. JACKSON, LAW, FACT AND NARRATIVE COHERENCE (1988). 11. REVERSAL OF FORTUNE (Warner Brothers 1990). 12. JUDGMENT AT NUREMBERG (United Artists 1961). It would of course be possible to write a courtroom drama that had no bearing upon current legal realities at all, and it might therefore be objected that there appears to be a lot of law in the two films I discuss because they were somewhat unusually based on actual events. But many television and feature films containing legal sagas are quite closely based on actual events or people. Television movies are too numerous to mention; for feature films, see THE ACCUSED (United Pictures/Paramount 1988); BOOMERANG (Twentieth Century Fox 1979); BREAKER MORANT (South Australian Film Corp. 1979); CLASS ACTION (Twentieth Century Fox 1990); COMPULSION (Twentieth Century Fox 1959); A CRY IN THE DARK (Pathe/Evil Angels Film/Cannon International 1988); A FEW GOOD MEN (Columbia 1992); FURY (Metro-Goldwyn-Mayer 1936); THE HOUR OF THE PIG (Mayfair/BBC/CiBy 2000 1992); I WANT TO LIVE (United Artists 1958); IN THE NAME OF THE FATHER (Universal Pictures 1993); INHERIT THE WIND (United Artists 1960); LET HIM HAVE IT (First Independent 1991); THE LIFE OF EMILE ZOLA (Warner Brothers 1937); MADELINE (GFD 1949); A MAN FOR ALL SEASONS (Columbia 1966); THE ONION FIELD (Black Marble 1979); REVERSAL OF FORTUNE (Warner Brothers 1990); 10 RILLINGTON PLACE (Columbia/Filmways 1971); THE THIN BLUE LINE (BFI 1988); YOUNG MR. LINCOLN (Twentieth Century Fox 1939). It is interesting to consider the effects of their experience on films made by people with legal knowledge. The most notable for its authenticity is ANATOMY OF A MURDER (Columbia 1959). Robert Traver, who authored the book on which Wendell Mayes' screenplay was based, was also known as Justice Voelker of the Michigan Supreme Court; Otto Preminger, who directed the movie, had law school training in Vienna and was the son of the onetime Attorney General of the Austro-Hungarian empire. 13. Von Bulow was prosecuted on two counts of assault with intent to commit murder. The trial, the appeal, and the retrial were all televised, and the whole saga was the subject of obsessive media attention. According to von Bulow: The media very early sets a scenario and the scenario was made in heaven. It was the days when Dallas and Dynasty were the top money spinners of soap opera. So this was the idle rich, with lust and loot. I had a mistress, my wife had a lot of money. What more could possibly, you know ... ? You've got it made. So that was the scenario.Interview with Claus von Bulow, Defendant, in London, Eng. (Sept. 7, 1995). 14. Alan Dershowitz published his account of the trials in his book, Reversal of Fortune - Inside the von Bulow Case, upon which the film was originally based. See generally DERSHOWITZ, supra note 1. His son, Elon Dershowitz, worked for Edward Pressman Productions, which produced the film. According to Abby Mann, Mann was invited to write the screenplay before it was offered to Kazan. Interview with Abby Mann, supra note 1. He turned it down because he felt that the film had to take a position, and he himself thought that von Bulow was probably guilty, a personal verdict at odds with that reached by the jury at von Bulow's second trial. It is interesting to note Mann's conviction that a clear view must be given of von Bulow, and that he turned down the film because he doubted von Bulow's innocence. Kazan structured his account precisely around the impossibility of knowing whether von Bulow was innocent or guilty. 15. PAULINE KAEL, 5001 NIGHTS AT THE MOVIES 294 (1982) (quoting Gavin Lambert). 16. See generally UNITED NATIONS WAR CRIMES COMMISSION, 6 LAW REPORTS OF TRIALS OF WAR CRIMINALS (1948) (Trial of Josef Altstötter and Others, Nuremberg, Feb. 17, 1947 to Dec. 4, 1947). The defendants were Schlegelberger, Klemm, Rothenberger, Lautz, Mettgenberg, Von Ammon, Joel, Rothaug, Oeschey, and Altst<um o>tter. In the film, the character of Ernst Janning is based on defendant Schlegelberger, Emile Hahn is based on Rothaug, and Werner Lammpe is loosely based on Rothenberger. The film's "Feldenstein case" is based on a noteworthy Rassenschande (race shame) case tried by Rothaug, in which a Jewish man called Katzenberg was executed for alleged sexual intimacy with a young German woman. Schlegelberger, Klemm, Rothaug, and Oeschey were all sentenced to life imprisonment, the others for periods between five and ten years. Mann's story source has been the cause of some confusion, presumably because knowledge of the trials of the major war criminals eclipses that of the more minor figures. The reviewer for the Daily Herald wrote not only that the "peg on which [Kramer] hangs his tirade is fictional" but also that "I no more believe in his fable's reality than I believe in Aesop." Paul Dehn, A Brutal Mirror on a Nation's Atrocities, DAILY HERALD (London), Dec. 15, 1961 (available in British Film Institute (BFI) Microfiche Cuttings Collection, Entry Ref. Judgment at Nuremberg [hereinafter BFI Microfiche]). Donald Spoto's discussion of Kramer's work fails to recognize the source of the film, referring erroneously to the trials of the major war criminals. DONALD SPOTO, STANLEY KRAMER, FILM MAKER 226-28 (1990). Somewhat inconsistently, Thomas Harris both alludes to the source in the Altstötter trial and cites without comment Spotto's misattribution. THOMAS HARRIS, COURTROOM'S FINEST HOUR IN AMERICAN CINEMA (1987). German students responded to the film by demonstrating to demand the early retirement of a minor judge, Hermann Markl, who had presided over the Katzenberg case at first instance. Press Release, available in UCLA Department of Special Collections, No. 161, Box 40 [hereinafter The Stanley Kramer Papers]. Their demands were apparently met, but if the research of the Committee for German Unity was correct, such was the influence still exercised by judges who had served the Nazi party that Markl's dismissal was a minor concession. See WE ACCUSE: 800 NAZI JUDGES - BASTIONS OF ADENAUR'S MILITARIST REGIME (Committee for German Unity ed., 1949). The Committee's pamphlet listed many judges currently in service who were believed to have been complicit in Nazi rule. Its introduction noted that "according to incomplete researches more than 800 of Hitler's Special Court Judges and Military Judges today occupy positions of responsibility in the West German judicial system." Id. at 5. For a discussion of the film in the context of a critique of representations of the holocaust, see JUDITH E. DONESON, THE HOLOCAUST IN AMERICAN FILM 88-107 (1987). 17. Kazan used speech verbatim from von Bulow's first trial, and used incidents referred to in von Bulow's deposition in a family civil suit, the appellate brief, the appendix to the new trial motion submitted by Dershowitz, and three personal interviews with Dershowitz. Interview with Nicholas Kazan, Screenwriter, in Santa Monica, Cal. (Oct. 4, 1995). 18. Mann referred to JOHN P. KENNY, MORAL ASPECTS OF NUREMBERG (1949), available in The Stanley Kramer Papers, supra note 16, at Box 37; PETER CALVOCORESSI, NUREMBERG: THE FACTS, THE LAW AND THE CONSEQUENCES (1947), available in The Stanley Kramer Papers, supra note 16, at Box 37; GUSTAVE M. GILBERT, NUREMBERG DIARY (1948), available in The Stanley Kramer Papers, supra note 16, at Box 38. 19. Notably, and very effectively, Mann quoted Justice Holmes' notorious judgment in Buck v. Bell: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for the imbecility, society can prevent [their propogation by medical means in the first place]. Three generations of imbeciles are enough.Buck v. Bell, 274 U.S. 200, 207 (1927). 20. It is interesting to compare Colonel Lawson's outline of the indictment in the film with the indictment of the Law Report. It both echoes the actual indictment and significantly alters its emphasis, an alteration consistent with Mann's own beliefs expressed in his interview about the relative importance of the issues. In Count One of the indictment, Common Design and Conspiracy, "The defendants, by distortion and denial of judicial and penal process, committed the murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts ...." UNITED NATIONS WAR CRIMES COMMISSION, supra note 16, at 2. In the movie, Colonel Lawson stated, "But the prosecution is not calling the defendants to account for violating constitutional guarantees or withholding due process of law. It is calling [the defendants] to account for murder, brutalities, torture, atrocities." JUDGMENT AT NUREMBERG, supra note 12. 21. Bernard Jackson queried this three-fold conceptual structure, suggesting that there is an insufficient distinction between the concept of plot and story. Bernard Jackson, "Anchored Narratives" and the Interface of Law, Psychology and Semiotics, LEGAL & CRIMINOLOGICAL PSYCHOL. 1, 17-45 (1996). I have followed here a conceptual structure that is widespread in cinematic analysis, as for example, Roy Armes' discussion of story-telling terminology indicates. ROY ARMES, ACTION AND IMAGE: DRAMATIC STRUCTURE IN CINEMA (1994). 22. In the terminology of the Russian formalists, the fabula. The fabula is the story that the viewer of a film understands to have been narrated by the time the film has reached its end; the fabula expresses the thematic essence of the events which have made up the film. 23. Adopting the formalist's terminology again, the syuzhet is the collection of the events themselves and the expository principles upon which they narrate the fabula. The classical Hollywood movie requires that the fabula embrace change in the character of a protagonist pursuing a meaningful goal. The classical Hollywood syuzhet is: the contextualization of character and introduction of the protagonist's goal (Act 1); the struggle with the forces of antagonism (Act 2); and resolution of the conflict (Act 3). 24. The Hollywood screenwriting gurus all share the same view of the requirements of narrative structure and differ from the academic writers' analyses of canonic narration only in the verve and accessibility of their explanations. For popular accounts, see SYD FIELD, SCREENPLAY: THE FOUNDATIONS OF SCREENWRITING (1982) [hereinafter FIELD, SCREENPLAY]; SYD FIELD, THE SCREENWRITER'S WORKBOOK (1984); WILLIAM GOLDMAN, ADVENTURES IN THE SCREEN TRADE (1983); LEWIS HUNTER, LEW HUNTER'S SCREENWRITING 434 (1993); JOHN HOWARD LAWSON, FILM: THE CREATIVE PROCESS (1967); MARGARET MEHRING, THE SCREENPLAY - A BLEND OF FILM FORM AND CONTENT (1989); LINDA SEGER, MAKING A GOOD SCRIPT GREAT (1987); EUGENE VALE, THE TECHNIQUE OF SCREEN AND TELEVISION WRITING (1982). For academic treatments, see ROY ARMES, ACTION AND IMAGE: DRAMATIC STRUCTURE IN CINEMA (1994); BORDWELL, supra note 10; DAVID BORDWELL ET AL., THE CLASSICAL HOLLYWOOD CINEMA: FILM STYLE AND MODE OF PRODUCTION TO 1960 (1985); CLASSICAL HOLLYWOOD NARRATIVE: THE PARADIGM WARS (Jane Gaines ed., 1992); RICHARD NEUPERT, THE END: NARRATION AND CLOSURE IN THE CINEMA (1995); ROBERT B. RAY, A CERTAIN TENDENCY OF THE HOLLYWOOD CINEMA 1930-1980 (1985). 25. BORDWELL, supra note 10, at 157. 26. Id. at 35. 27. WELLS ROOT, WRITING THE SCRIPT: A PRACTICAL GUIDE FOR FILMS AND TELEVISION 2 (1979). 28. "Without conflict there is no drama. Without need there is no character. Without character, there is no action." , FIELD, SCREENPLAY, supra note 24, at 25 (1982). 29. Spencer Tracy received rave reviews for his portrayal of Judge Haywood. One reviewer stated that "Tracy, clenching and unclenching the soft corrugations of his face, [is] old Mr. Integrity himself and a boon to this film." John Coleman, Review, NEW STATESMAN, Dec. 22, 1961, at 968. Another wrote, "[Tracy] creates a gentle but towering figure, compassionate but realistic, warm but objective, a person of unusual insight and eloquence, but also a plain, simple human being demandingly sandwiched between politics and justice." Film Reviews: Judgment at Nuremberg, VARIETY, Oct. 18, 1961, at 6. Finally, one critic wrote, "Here is a man, white of hair and wrinkled of face, cut out of the tough hickory that was Abraham Lincoln." A Film Not Afraid to Argue, THE TIMES (London), Dec. 15, 1961, at 15 (available in BFI Microfiche, supra note 16). 30. JUDGMENT AT NUREMBERG, supra note 12. The speech continues in the text but not in the film: "A position the equivalent of the Attorney-General of the United States. Finally, in a Reichstag speech of 26 April 1942, Hitler attacked Janning and forced him to resign." BEST AMERICAN SCREENPLAYS 2, at 277 (Sam Thomas ed., 1990). 31. "Civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich." See UNITED NATIONS WAR CRIMES COMMISSION, supra note 16, at 54. Alain Resnais named his 1955 film about Auschwitz and the holocaust Nuit et Brouillard (Night and Fog). Renais used the same Signals Corps footage in Nuit et Brouillard that Mann and Kramer used in Judgment at Nuremberg, but when Resnais' film was first exhibited in London, the censor insisted that the footage be excised. David Robinson, Leicester Square Theatre: Judgment at Nuremberg, FINANCIAL TIMES (London), Dec. 18, 1961 (movie review). 32. Schelgelberger drafted the law which came into force in December 1941 and which specified: A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by his conduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.UNITED NATIONS WAR CRIMES COMMISSION, 6 LAW REPORTS OF TRIALS OF WAR CRIMINALS, supra note 16, at 11. 33. TWELVE ANGRY MEN (United Artists 1957) is one of those exceptions that, because it is not actually a courtroom drama, proves the rule. Of course, in real trials, juries are entrusted with the big decision as to guilt or innocence, but it is only one decision they announce - and well-paced movies need much more than one decision to drive them. In the jury room of Twelve Angry Men, the decisions which pace the film are the individual decisions each juror makes when confronted with an undesired truth about himself and an unwanted choice about the verdict. Only because the jury was in the jury room, and not the court, could their decisions drive the narrative. The importance of the protagonist's point of view is emphasized in Nicholas Kazan's explanation of why he focused the screenplay upon von Bulow's appeal and not the retrial: "At least from [Dershowitz's] perspective, the retrial was merely confirming and bringing up things which they found in the appeal process. Therefore, the dramatic area was the appeal and the appeal process." Interview with Nicholas Kazan, supra note 17. Hollywood lawyers are prone to act unethically in their conduct of cases, declining to consult with their clients on key decisions about the conduct of the case. Leaving the client to have the final say in the way a case is conducted would, of course, leave our protagonist unheroically waiting upon someone else's decision at key dramatic moments. So in THE VERDICT (Twentieth Century Fox 1982), for example, ambulance-chasing lawyer Frank Galvin turns down the other side's settlement offer without a second thought. This violates the first principle of practice ethics - that it is the client's right to decide such matters. 34. REVERSAL OF FORTUNE, supra note 11. 35. Id. 36. See DERSHOWITZ, supra note 1, at 52. 37. I follow Robert McKee's terminology here. 38. Kazan had originally called his screenplay Devil's Advocate. I always look for the mythic level of material, for thematic underpinnings. And for me it was about trying to get ... justice for the Devil; in other words, if the Devil is accused of a crime that he didn't commit, he should still be exonerated, even though he is the Devil.Interview with Nicholas Kazan, supra note 17. On Hollywood's embrace of the mythologist Joseph Campbell's scholarship, see JOSEPH CAMPBELL, THE HERO WITH A THOUSAND FACES (1968); CHRISTOPHER VOGLER, THE WRITER'S JOURNEY: MYTHIC STRUCTURE FOR STORYTELLERS AND SCREENWRITERS (1992). 39. Kazan stated: You know this was an essential scene, because the purpose of this scene, dramatically speaking, is to get the audience to be with Alan defending Claus, because Claus on the surface seems to be guilty. The evidence says it looks like he's guilty. He acts pretty weird. So why, how can we be represented by Alan defending this man? Unless we raise every issue about why you shouldn't do it. So that was an absolutely critical scene. If this scene didn't work, the movie didn't work. We have to say, yes, he is doing a good thing. And we have to believe it fairly substantially. The other case, where he is defending these black brothers ... I wanted to make him more - show him fighting for the underdog and say: "This guy really is a good guy. He really does do these good things. He really does fight for truth, justice and the American way" ... to sort of give you a patina of positive bias for him.Interview with Nicholas Kazan, supra note 17. 40. REVERSAL OF FORTUNE, supra note 11. 41. Interview with Nicholas Kazan, supra note 17. Kazan also stated: The image I had was of a juggler, throwing balls up in the air and then as some evidence came back on one thing, I was gonna want to throw up two more balls, so that there was more stuff and that was sort of the substitute for a plot.Id. 42. Forster actually used the terms "story" and "plot" where I have used the terms "flat narration" and "meaningful story." E.M. FORSTER, ASPECTS OF THE NOVEL 93-94 (1962). 43. The reviewer for Catholic TV News spectacularly missed the point of a crucial exchange between Hans Rolfe, the German defense counsel, and Judge Haywood. Rolfe points to the futility of the life sentences Haywood has imposed, and wagers that before long the defendants will be released because it will prove politically expedient. Haywood replies that Rolfe's prediction "is logical in view of the times in which we live. But to be logical is not to be right. And nothing on God's earth could ever make it right." Aftermath of War: How Just is the Victors' Justice?, CATHOLIC TV NEWS, Feb. 1962, at 17. "I was somewhat bewildered," wrote the reviewer, "by the contention that what is logical may not be right. In my dictionary logic is defined as the science of correct reasoning. Id. 44. Mann said he used the scene to show that even if Petersen were incompetent, he shouldn't have been sterilized, and that as distasteful as the laws were, they were accepted as being within the range of laws which a domestic jurisdiction could validly pass. Mann also stated that he downplayed the due process issue to show that these laws were absolutely repugnant, and should never have been imposed. Interview with Abby Mann, supra note 1. 45. Interview with Abby Mann, supra note 1. In correspondence with the author in March 1995, he explained: Abe Pomerantz, who had participated in the trials, talked about the dilemma of what he felt was the deterioration of the trials because of Cold War politics. Germany, after all, is in the heart of Europe, and whoever controlled Germany controlled Europe. Therefore, many of the most important American jurists refused to take part in the trials after a while. He particularly complained about the low level of the American judges. It seemed to Pomerantz that the very reasons that allowed the Nazis to come to power were allowing them to go free. At first I thought I would tell the story of Pomerantz, but then I met Telford Taylor, the head of the prosecution, who told me about a trial of Nazi judges. At first I thought it would be too abstract; after all, what could be more "inside" than stories about judges in the Nazi era? But keeping in mind Shaw's dictum that a play is no stronger than its antagonist, I tried to put together a movie of ideas.... I always felt that the deeper meanings were not fully understood. What I was trying to say was that patriotism can be evil and that a country is not a rock. It is what it stands for and particularly in times when it is most difficult to stand for principles. It is the only way one can keep from becoming the enemy.Letter from Abby Mann, Screenwriter, to this author (Mar. 1995) (on file with author). Mann made other modifications to the strict truth of the Altstötter trial, consistent with his own belief that tough sentences should have been demanded. His modifications were also consistent with the dramatic logic of the film story he wanted to tell, for this was to be a story in which the down-home Maine judge acted in accordance with the requirements of moral justice and against the dictates of expedience. In an interview, Mann explained that Telford Taylor, the American prosecutor, had objected to Mann's stark juxtaposition of justice and expediency in the response of the American military to the developing political crisis: I will tell you one thing that was important, that we weren't able to do as vigorously as we wanted to. Actually, what happened was that [in the draft screenplay] the prosecution did not ask for the death penalty and did not even really ask for difficult sentences ... [Telford Taylor] was upset that I would try to do that, and it was much more obvious in my first draft. And I wondered whether it was clear that Lawson [the American prosecutor in the film] ... was taking a dive? That he wasn't asking for as severe [a sentence] as he might've. Is that clear? Yes, that he kind of took a dive. What I am talking about is in his closing argument, you know, did you feel there that he was faltering? You were supposed to - that's what I mean.Interview with Abby Mann, supra note 1. Taylor had objected to how the draft screenplay presented the military persuading the prosecution to "soft peddle" in order to facilitate an alliance with the Germans. The military, he claimed, did not meddle, and if they had, the prosecution would have resisted. One can understand why, for dramatic reasons, Mann wanted Lawson to "take a dive." It backs Haywood even further into a lonely corner and makes his eventual sentences even more obviously a determination to pursue the right in the face of the expedient. The emphasis on the attractions of expediency when a nation faces political difficulties also reinforces the analogue with the McCarthy hearings, while further clarifying Mann's account of the rise of Fascism. For Taylor's objections, see The Stanley Kramer Papers, supra note 16, at Box 39. As Mann acknowledges, Colonel Lawson's position is somewhat unclear. The reviewer for Sight and Sound, for example, summarizing the film's resolution, commented, "the American prosecutor has resisted a plea for political expediency." John Gillett, Judgment at Nuremberg, SIGHT & SOUND, Winter 1961, at 41. However, Burgo Partridge wrote, "A U.S. General urges leniency. Widmark [Colonel Lawson] reluctantly yields a point; Tracy [Judge Haywood] stands firm." Burgo Partridge, A Trial for the Mind, TIME & TIDE, Dec. 21, 1961, at 2154. 46. See, e.g., British Film Institute, Judgment at Nuremberg, 29 MONTHLY FILM BULL. 19 (1962) (film review); Penelope Gilliatt, A Replay at Nuremberg, OBSERVER (London), Dec. 17, 1961 (available in BFI Microfiche, supra note 16); Kael, supra note 15, at 294. 47. The clarity of Mann's vision of Haywood is preserved in the screenplay description of the character, but in the successive drafts and in shooting the characterization, it seems to have lost some of its bite: Haywood is the "vanishing American." The body of a battered buffalo with great sensitivity underneath. A man of humble origin whose Father participated in the railroad strikes of the early twenties. He thought the most wonderful thing in the world would be to be a judge and he has paid dearly for it. He has had to sit hard and to kowtow to political forces which he sometimes hated because it was the only way to remain a Judge. He is like many men in his fifties trying to find his own identity. A judge who has never contributed to his profession greatly because he has never had the chance. A man with far greater capacities than he realizes. Earl Warren was thought by many to be a professional party hack until he was in the Supreme Court and showed how he could grow, the seeds that had been in him all the time. Haywood is such a man, also.BEST AMERICAN SCREENPLAYS 2, supra note 30, at 268. 48. Mann's outline commences with the execution of Ribbentrop and Kaltenbrunner, and the recruitment of Judge Haywood in Maine. After the opening of the trial, there was to be a reconstruction of the vandalism of "Kristallnacht" and the Nuremberg rallies. As the trial gets under way, Haywood expresses doubts about his own competence, doubts which are echoed by Colonel Lawson. There is an interesting scene in which Lawson is briefed by a German lawyer who informs him of the differences between the two systems and ventures the opinion that Janning's capitulation to the Nazis was a sign to others to follow suit. In another important scene, Haywood's daughter asks to be taken to see the cultural life of Nuremberg and ends up in a strip-joint surrounded by off-duty soldiers and black marketeers. "This is the place where world law was supposed to be made," says her guide. "Maybe it's just because there's no such thing as justice and responsibility after all." JUDGMENT AT NUREMBERG, supra note 10. The later scenes make it crystal clear that the American military regards the trials as a liability and are ready to do anything necessary to make Germany firm allies. The Stanley Kramer PapersS, supra note 16, at Box 40. 49. Interview with Nicholas Kazan, supra note 17. In the screenplay, Dershowitz has this exchange with von Bulow: von Bulow: Maybe. But believe me, there's no insulin here.Nicholas Kazan, Reversal of Fortune 38 (July 1988) (unpublished screenplay, final rev. draft, on file with author). 50. The opposite theme was explored in TO KILL A MOCKINGBIRD (Universal-International 1962). The screenplay was written by Horton Foote and based on the novel by Harper Lee. Atticus Finch defends a young African-American man who is falsely accused by Ewell, a "white-trash" racist, of raping his daughter Mayella. The young man is convicted, against the weight of evidence, by a racist jury and is shot attempting to escape custody. Ewell is subsequently killed by a strange young man, Boo Radley, when Ewell attacks Finch's children on their way home from a harvest supper. Sheriff Tate decides not to pursue Boo, recognizing that moral justice was secured by his formally criminal act. Harper Lee's father was a lawyer and she attended law school herself, although she did not graduate. 51. Interview with Nicholas Kazan, supra note 17. Kazan further stated: When I was doing the research and I read the transcripts of both trials, I read all the briefs; I read the witnesses' initial statements; I read Claus's initial interview by the Rhode Island cops where he does not seem like a man who's totally innocent. There are other things which were extremely suspicious. I believe that he feels guilty, which maybe he simply feels guilty because his wife tried to commit suicide twice - that would be a reasonable explanation for guilt - but I certainly could never convince myself that this man was totally innocent in the more primitive sense of having nothing on his conscience.Id. 52. See, for example, two films by Lawrence Kasdan, THE ACCIDENTAL TOURIST (Warner Brothers 1988) and THE BIG CHILL (Columbia/Carson Productions 1983). 53. Obstinate jurors who stick resolutely to their guns are not, however, unknown in the annals of popular criminology, as the well-known English case of William Gardiner demonstrates. In 1903 he was tried twice for the murder of Rose Harsent, an attractive servant girl of apparently lax morals who was pregnant at the time of her murder. The police believed Gardiner, a strict Christian and leading member of the local Primitive Methodist Congregation, to have been the baby's progenitor. Gardiner was acquitted of Harsent's murder at both trials. According to popular accounts, the first trial ended in a hung jury, with one juror unpersuaded of Gardiner's guilt, and the second trial equally concluded with a hung jury, but this time with one obstinate juror unpersuaded of his innocence. See generally TRIAL OF WILLIAM GARDINER (THE PEASENHALL CASE) (W. Henderson ed., 1934). 54. See Friedman, supra note 4, at 1593-94. Twelve Angry Men observes all the conventions of the paradigmatic Hollywood movie, but it was originally a television play, and then a stage play authored by Reginald Rose. There are a very few, very minor changes in the screenplay. Although jury studies suggest that the likelihood of a lone juror turning a jury decision around is very remote, Rose's play is not devoid of psychological realism. Henry Fonda's lone juror recognizes that if after another vote no one is prepared to support him, he must give up and vote guilty. The support of another juror in the subsequent vote is given, it is made clear, not because the other juror has changed his mind, but because he agreed that they should take some time to discuss the evidence. TWELVE ANGRY MEN, supra note 33. 55. See generally THE STAR CHAMBER (Twentieth Century Fox 1983). 56. See generally REVERSAL OF FORTUNE, supra note 11. This question is perhaps the most urgent of all those put to advocates. 57. See generally IN THE NAME OF THE FATHER, supra note 12. 58. See generally THE ACCUSED,supra note 12; A FEW GOOD MEN, supra note 12 (addressing the problem of plea-bargaining). 59. See generally THE HOUR OF THE PIG, supra note 12. 60. See generally TWELVE ANGRY MEN, supra note 33; TO KILL A MOCKINGBIRD , supra note 50; A CRY IN THE DARK, supra note 12. 61. See generally THE VERDICT, supra note 33; REVERSAL OF FORTUNE, supra note 11. 62. Alan Dershowitz worked on the von Bulow appeal from April 1982 to March 1983. The trial of the judges at Nuremberg ran from February 17, 1947 to December 4th of the same year. 63. "I am always writing notes about what is going on underneath because to me drama is about subtext." Interview with Nicholas Kazan, supra note 17. 64. Kazan stated: As I was doing the research I was constantly trying ... to find the truth, which led me to various things which were not in [Dershowitz's] book, and were not in any of the voluminous articles that I also read. For instance ... Alexandra Isles' testimony was, I ... realized, reading this thing, that this woman was trying to win this man back on the stand. As she was testifying against him! You read this document and it is as clear as can be. This is what she is trying to do. And it is a staggering thing from a dramatic perspective.Id. The transcript may either be unusually revealing or somewhat misleading, because viewing Alexandra Isles' testimony on videotape, it comes across as both self-consciously theatrical and highly damaging to von Bulow. 65. Letter from Justice Michael Mossmann to Stanley Kramer (Nov. 30, 1961), available in , supra note 16, at Box 38; Letter from General Telford Taylor to Stanley Kramer (Dec. 2, 1961), available in The Stanley Kramer Papers, supra note 16, at Box 39. 66. Nicholas Kazan stated: When you have to make something drama, you are often forced to lie .... I wrote a script about the conquest of Mexico - unproduced as of yet - about Cortez and Montezuma and so forth. After Montezuma died ... he was quickly followed by a man whose name I now forget, who got smallpox and was only Emperor for three months or so. Well, I combined that person with the next person and made it a single person. That is the kind of lie which is necessary for drama, which is basically acceptable .... In this case, in this film ... the only lies I had to tell had to do with Dershowitz's character, really.Interview with Nicholas Kazan, supra note 17. 67. See DERSHOWITZ, supra note 1, at 105. The medical and scientific arguments on which the appeal was based are set out in Chapter 11 of his book. "Some of the medical evidence was ... very technical, and I didn't know how much an audience would follow. There's more in here than there was in the plot of the film. It was condensed because we thought at a certain point they were going to zone out." Interview with Nicholas Kazan, supra note 17. 68. See generally Jackson, supra note 21 (discussing the problem facing jurors entrusted with the task of choosing between incompatible narratives presented by opposing parties, concluding that jurors will tend to treat the story which possesses the greater narrative plausibility as the one more likely to be true). 69. Interview with Nicholas Kazan, supra note 17 (discussing The Last Emperor (Columbia Pictures/Yanco Films/Tao Films/Recorded Picture Co./Screenframe/AAA Soprofilm 1987)). 70. BEST AMERICAN SCREENPLAYS 2, supra note 30, at 268. 71. For example, in the interview, Mann stated that at the beginning, when Janning protests that the tribunal doesn't have jurisdiction to judge him, he wanted to build tension and make Janning a mysterious figure. Interview with Abby Mann, supra note 1. 72. RICHARD J. NEUPERT, THE END: NARRATION AND CLOSURE IN THE CINEMA 32 (1995) (quoting Armine K. Mortimer, La Cloture Narrative 10 (1985)). 73. Neupert suggests that movies can be categorized in four ways according to their endings. Hollywood movies are in his system "closed texts." In closed texts, what I and Neupert both call "story" is resolved. In addition, what Neupert calls the "narrative discourse" is also brought to a conclusion. Narrative discourse comprises what I have here called "plot," and in addition to that, elements of style such as music, cinematography, and point of view. Id. at 21. 74. In Neupert's semitiotic analysis, "story resolution demands the termination of the large action codes that propel and dominate the narrative events and characters." Id. at 18. 75. MUSIC BOX (Guild/Carolco 1989). 76. WITNESS FOR THE PROSECUTION (United Artists 1957). 77. REVERSAL OF FORTUNE, supra note 11. 78. It is a truism that evidence is not a matter of facts but of presentation of facts in accordance with a narrative that organizes their significance. 79. The seminal article is Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ..., 15 L. & SOC. REV. 631 (1981). 80. For examples of these differences, see H. GOITEIN, PRIMITIVE ORDEAL AND MODERN LAW (1923) and ROBERT BARTLETT, TRIAL BY FIRE AND WATER: THE MEDIEVAL JUDICIAL ORDEAL (1986). In a similar vein, consider the movie The Hour of the Pig, supra note 12 (released in the United Kingdom under the title The Advocate). 81. The annals of legal anthropology confirm what we learn from consideration of trial by ordeal. Social mechanisms which will satisfactorily settle a dispute in some societies would be useless in others. For instance, the elaborate procedures for detecting sorcery, which would facilitate the settlement of some disputes between the Tiv of North Eastern Nigeria, will likely leave the New Guinean Minj-Wahgi unmoved; and the Tiv would be equally unimpressed by the Minj-Wahgi's tagba boz in which disputants line up and kick each other in the shins until one group withdraws. See generally PAUL BOHANNEN, JUSTICE AND JUDGMENT AMONG THE TIV (1957) (in which the author examines the operations in Tiv society of the "jir" - a relatively formal dispute settlement forum - and discusses whether the Tiv possessed a legal system). 82. The group might, of course, value conflict with another group. See generally COSER, supra note 6 (arguing that open social conflict functions so as to bind together communities or parts of communities against perceived common enemies). 83. We might observe, for example, that the Supreme Court's judgment in Roe v. Wade, 410 U.S. 113 (1973), has failed to settle the dispute over abortion in America. Few anti-abortion campaigners would choose to depict their concerns as a matter of interpretation of the United States Constitution, believing as they do that their mission has more to do with the rescue of the unborn child and the saving of human souls. See Martin P. Golding, On the Adversary System of Justice, in PHILOSOPHICAL LAW 98-103 (R. Bronaugh ed., 1978). 84. In the United Kingdom, the issue is now settled under section 8 of the Children Act. Section 8 deals with orders a court may make to determine disputes in relation to the care and upbringing of children. Children Act, 1989, ch. 41 (Eng.). In Churchard v. Churchard, [1984] Fam. 635, 641 (Eng.), the President of the Family Division commented, "These cases are exceedingly intractable. They can only be dealt with by tact not force. Force is bound to fail." The inability of legal rules to address the real conflicts in family cases is the principle reason for resort to alternative methods of dispute resolution, such as mediation, in this area (the other being a possibly erroneous conviction that alternative dispute resolution is cheaper than recourse to the courts). 85. For instance, witchcraft laws in The Hour of the Pig, supra note 12. 86. See generally ANATOMY OF A MURDER, supra note 12 (Paul Biegler must find a precedent which permits a plea of irresistible impulse); THE STAR CHAMBER (supra note 55) (Judge Hardin sets out to avoid the inconveniences of the laws of search and seizure). 87. Judge Weaver wound his fob watch as he makes his decision whether to allow Biegler, against the stated objection of the prosecution, to introduce evidence that Laura Mannion was raped. ANATOMY OF A MURDER, supra note 12. 88. IN THE NAME OF THE FATHER, supra note 12 (Gareth Pierce's hunt for the traces of Charlie Burke). 89. WITNESS FOR THE PROSECUTION, supra note 76. 90. REVERSAL OF FORTUNE, supra note 11. 91. TO KILL A MOCKINGBIRD , supra note 50. Cross-examination of witnesses is the very stuff of courtroom drama, and Atticus Finch's questioning of Mayella Ewell is one of the most memorable of such scenes. 92. THE VERDICT, supra note 33. When Frank Galvin's mentor describes Ed Concannon as "the Prince of [expletive] darkness" he perhaps underestimates him. 93. Id. Frank Galvin's peroration is a model of last ditch effort. 94. LET HIM HAVE IT, supra note 12. The portrayal of Lord Goddard's desire to see Derrick Bentley hang is probably fair. 95. 10 RILLINGTON PLACE, supra note 12. 96. A CRY IN THE DARK, supra note 12. Lindy Chamberlain's demeanor as a witness is what her defense lawyers fear most. 97. The desire to cast the protagonist lawyer in the decision-making role is also a source of frequent misrepresentation of the lawyer's role. The Verdict, for example, has been strongly criticized for showing the lawyer failing to consult with his clients at key stages of their cases. See SIEGEL, supra note 4, at 42. 98. See, for example, the rather sparse information about levels of public understanding of law in Austin Sarat, Studying American Legal Culture: An Assessment of Survey Evidence, 11 LAW & SOC. REV. 427 (1977). See also Gregory Casey, The Supreme Court and Myth: An Empirical Investigation, 8 LAW & SOC. REV. 385, 386 (1974); Martha Williams & Jay Hall, Knowledge of the Law in Texas: Socioeconomic and Ethnic Differences, 7 LAW & SOC. REV. 99, 117-18 (1972). Sarat stated: Three themes recur in public attitudes toward police, lawyers, and courts. First is the persistent demand for equal treatment, the central core of a democratic legal culture. Americans expect that the law, and those responsible for administering and enforcing it, will be blind to differences among them, and this expectation provides the standard against which Americans judge the legal system. Its violation is the most persistent source of their dissatisfaction. Yet at the same time ... most people seem satisfied with the overall performance of the police, the legal profession, and the courts.... People seem to be dissatisfied without being detached. Perhaps this dissonance is tolerated because people do not perceive the importance of legal institutions in their lives or, though perceiving that importance, do not feel threatened by the inadequacies of these institutions....Sarat, supra, at 440-41. 99. INDICTMENT: THE MCMARTIN TRIAL (20:20 Vision 1995). The movie was released in video in the United Kingdom and reviewed by the leading film journal Sight and Sound: James Woods gives a roaring central performance as lawyer Danny Davis, a staunch lone defendant of a family at the centre of a witchhunt against satanic child abuse. Echoing similar panics in the U.K., this true story does a thorough job of condemning the state and the media for pre-judging. Overeager prosecutor Mercedes Ruehl looks tough in her Marcia Clarke-style hairdo, and Lolita Davidovich is great as an unqualified quack who encourages the children to "remember."Indictment: The McMartin Trial, SIGHT & SOUND, Apr. 1996, at 60 (movie review). |
