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Volume 30, Number 4 (1996) reprinted by permission of the Law Review© cite as 30 U.S.F.L. REV. 1235 (1996)
By PAUL BERGMAN*
TRIAL MOVIES ARE an enduring form of entertainment,
and courtroom pranks are often one of their highlights. With a mixture
of clever tricks, experiments, or demonstrations, devious lawyers repeatedly
get the best of hapless adverse witnesses, proving them to be lying scoundrels
or unobservant clowns.1
This essay gathers together some of the most memorable courtroom pranks.2
These scenes are memorable for movie audiences for the same reason that litigators hope that demonstrative evidence is memorable for judges and jurors in actual trials. No matter how dramatic the underlying events, verbal recountings of them in question and answer format tend to evaporate in the minds of even the most attentive factfinders. By contrast, memorable courtroom pranks almost always involve tangible objects. Everyone in an audience or a courtroom pays rapt attention when a lawyer produces a tangible object and conducts a live experiment. We revert to elementary school days, when chemistry teachers transfixed us by dipping bananas into mysterious gases, magically producing frozen bananas. Courtroom prank scenes are also memorable because they satisfy an important cultural image about trial lawyers. Whether lawyers are heroes or bums,3 our culture often views courtroom lawyers as deviously clever tricksters. Perhaps good lawyers have the ability to master mountains of evi- dence and the patience to prepare for trial by endlessly culling through depositions. But the best lawyers can outsmart their adversaries, bamboozling witnesses and capturing the fancy of judges and jurors, with parlor tricks. What is left unsaid in courtroom movies is that these ploys typically lack both legal and tactical propriety. Legally, few courtroom movie stunts comport with evidence rules. Movie lawyers lie about the documents from which they're reading, and conduct experiments under conditions so different from those that existed when the crucial events took place that the results of the experiments are largely irrelevant. Instead of jurors' applause, actual lawyers would instead earn contempt citations. Tactically, the few litigators brave enough to rely on live courtroom demonstrations usually plan them as carefully as D-Day. Litigators are rarely foolhardy enough to trust their clients' futures to unrehearsed experiments with adverse witnesses. Perhaps the most notable example of the ill fate awaiting those lawyers who violate this tactical rule occurred during 1995's "Trial of the Century," People v. Simpson.4 O.J. Simpson was on trial for murdering his ex-wife and her friend. One task for the prosecutors was to link Simpson to a bloody glove police had found on his property. Without rehearsing the experiment in advance, one of the prosecutors asked Simpson to try on the glove in front of the jury. Sure enough, Simpson contorted and struggled as if he was trying to put on a pair of socks while wearing skis. The impact of the seeming lack of fit was widely reported as constituting a huge setback for the prosecution.5 In the fantasy world of courtroom films, however, courtroom pranks never fail. The opponent fails to object. If the opponent does object, the judge mistakenly overrules the objection. If the judge sustains the objection, the lawyer proceeds with the stunt anyway. And the witness, of course, almost always fails the test. 1. Criminal Court6: The Hired Gun Mentality Defense attorney Steve Barnes is cross-examining a mobster named Brown, who has testified for the prosecution that he was calmly standing by as Barnes' client walked up with a gun and killed Brown's companion. In the middle of cross-examination, Barnes starts screaming irrationally about perjury and injustice. The D.A.'s objections and the judge's attempts to silence Barnes only make him angrier. Suddenly, Barnes pulls a gun out of his jacket and starts waving it around the courtroom. The judge, Brown, the jurors, and everyone else in the courtroom dive for cover. Barnes then rushes over to the jury box and asks the jurors to get up and observe Brown cowering behind the witness chair. Is this a person, Barnes asks, who would have stood calmly by as a murderer walked up with a gun?7 Barnes' clever ploy epitomizes the dubious propriety of movie courtroom stunts. Had Brown (who was a mobster, after all) remained calm as Barnes waved the gun around, Barnes' client is probably done for. Moreover, the result of the experiment is irrelevant. How Brown reacts to an attorney waving a gun in a courtroom has little relevance to how he might have reacted to a street shooting with other people around. The risk of undue prejudice so outweighs the experiment's minimal probative value that a judge would not have permitted it.8 2. The Man Who Talked Too Much9 I: Right Cross Examination Steve Forbes is a disillusioned prosecutor turned defense attorney. Forbes' client is charged with beating a man during a wild melee. Prosecution witness Slug McNutt testifies that he was in the middle of the melee and saw Forbes' client administer the beating. During Forbes' cross-examination, McNutt denies that he was knocked out early in the melee, and brags that he's too tough to knock down. Seemingly defeated, Forbes excuses McNutt. But as McNutt steps down, Forbes conceals a lead weight in his right fist and sucker punches McNutt, knocking him out. Forbes hopes that the quick K.O. convinces the jury that McNutt lied about seeing the fight. Obviously, this ploy would land Forbes in jail for assault and battery. Witnesses and lawyers are immune from prosecution for what they say in the courtroom, but not for physical attacks. The stunt is also irrelevant. A judge would probably conclude that Forbes was trying to impeach McNutt on and with a collateral matter! 3. The Man Who Talked Too Much II: The Slow-Acting Poison Later in the same film, Forbes represents a man charged with murder by poison. During his closing argument, Forbes picks up the bottle, which the prosecution had offered into evidence as filled with the deadly poison, and drinks it dry. When Forbes is still sitting calmly at counsel table thirty minutes later, the jury is convinced that whatever was in the bottle did not cause the victim's death. Movie lawyers frequently launch into closing argument in the middle of direct or cross-examination. Forbes turns this around: in the middle of final argument, he suddenly presents evidence by demonstrating that the bottle does not contain poison. Of course, as the defense attorney, he's not supposed to present evidence, during final argument or any other time - especially if he's not under oath. Anyway, Forbes knew that the bottle did contain poison, just as the prosecution claimed. Forbes' stunt was based on his doctor's advice that the poison would not take effect for an hour. A more alert prosecutor would have asked the judge to read the jury instructions a second time, and watched Forbes and his client's defense expire together. Forbes' tactic could have been truly fatal to the defense. 4. The Young Philadelphians10: The Winner By a Nose Against the advice of his patrician mentors, Tony Lawrence is defending his old friend Chester, who is charged with murdering his uncle. Testifying for the prosecution, the uncle's snooty butler places Chester in the uncle's house at the time of the murder. The butler didn't actually see Chester in the house, but knows that Chester was there because the butler collected two empty glasses of booze. In one glass the butler detected the smell of the expensive scotch favored by the uncle, in the other the cheap rye that Chester always drank. On cross-examination of the butler, Tony conducts a dramatic experiment. He places three glasses in front of the butler and asks him to identify their contents. Seemingly bending over backwards to be fair, Tony encourages the butler to take long sniffs so as not to make a mistake. Confidently, the butler testifies that Glass No. 1 contains scotch, Glass No. 2 contains rye, and Glass No. 3 contains water. However, after drinking from Glass No. 3, the butler realizes that it is filled with gin, not water. Suddenly shaken, the butler admits that he wasn't sure about the contents of Glass No. 2. The judge's ruling allowing Tony to conduct the experiment is questionable, since the conditions under which Tony asked the butler to identify liquor by its smell in the courtroom are dissimilar to the conditions that existed on the night that the uncle died. On that night, the butler sniffed two glasses; in court, Tony asks him to sniff three. The difference is critical, since the butler doesn't make a mistake until he sniffs Glass No. 3. The D.A.'s objection that all the sniffing might have confused the butler's sense of smell seems legitimate (especially since Tony encouraged the butler to take long whiffs), and the judge probably should have ordered the jury to disregard the experiment. Tony's experiment is problematic on two other grounds. First, the tactical risk is especially high. Though the haughty butler walks around with his nose in the air, he's clearly an expert who is likely to accurately identify the glasses' contents. In fact, to the relief of serious scotch drinkers everywhere, the butler does accurately distinguish fancy scotch from cheap rye. The butler doesn't make a mistake until he gets to Glass No. 3. Moreover, Tony's purpose in conducting the experiment is unclear. Presumably, Tony is trying to show that the butler's mistake supports the defense argument that Chester left the uncle's house well before the uncle died. Yet Tony also argues that the noise that the butler heard just moments before hearing a gunshot was Chester leaving the uncle's house through the garden gate. Unless the jurors' minds are as clouded as the butler's nose by Tony's experiment, they're bound to realize that the defense arguments are internally incoherent. Tony is better off arguing that the experiment shows that even if Chester was still in the house, the uncle was doing all the drinking. This is consistent with Tony's argument that Morton committed suicide, and it doesn't force the jury to play "Where's Waldo" with Chester; he's in the house until he leaves by the garden gate. 5. Knock on Any Door11: The Unobservant Bartender Andrew Morton defends a wayward youth against a charge of murdering a police officer while the youth attempted to escape after robbing a bar. In court, the bartender identifies Morton's client as the robber. Prior to trial, Morton interviewed the bartender. During the interview, Morton spilled his entire drink on the bartender. Yet, in court, the bartender does not recognize Morton and cannot remember ever talking to him. Morton's ploy seriously undermines the bartender's credibility. If the bartender can't identify a man who spilled a drink on him during the calm of an interview, Morton suggests, how can he possibly identify an armed robber? When Morton asks the bartender, "Do you remember ever seeing me?" an actual D.A. would undoubtedly object that the probative value of a negative answer is minimal and outweighed by the time it would take to probe the bartender's ability to recognize people in a variety of circumstances. A judge would probably sustain the objection. Most judges would regard the circumstances as too different for a strong logical connection to exist between the bartender's inability to recognize an informal interviewer and his claim to recognize an armed robber. And the question might well lead to an extensive inquiry into the bartender's general powers of recognition and recall. The tactical risks of Morton's ploy are obvious. By spilling the drink on the bartender, Morton makes it much more likely that the bartender will recognize him in court and that Morton will have to pay the bartender's dry cleaning bill. The tactic brings to mind the apocryphal old defense gambit of seating a defendant somewhere in the back of a courtroom and putting a stand-in at counsel table, hoping that prosecution witnesses will automatically identify whoever is seated at counsel table as the culprit. The gambit backfires when prosecution witnesses look around the courtroom and indicate, "Oh yes, there's the one who did it, way back there." 6. Witness for the Prosecution12: The Bermuda Shorts Triangle Sir Wilfred is defending Leonard Vole against a charge of murdering a lonely woman in order to inherit her money. The most damaging prosecution witness is Vole's wife Christine. Christine recants an earlier alibi and testifies that Vole returned home on the night of the murder later than she had originally told the police, and with blood on his jacket. During cross-examination, Sir Wilfred tries to prove that Christine was lying in order to get rid of her husband and resume an affair with another man. Sir Wilfred holds up a plain white sheet of paper and reads what purports to be a letter written by Christine to her lover, setting forth her devious plan. Christine angrily denies writing the letter, explaining that she writes letters on small blue stationery. Sir Wilfred then pulls out sheets of small blue stationery from under a book, and thanks Christine for authenticating her incriminating letter. The plain white sheet of paper that he was reading from, Sir Wilfred explains, was a bill from his tailor for a new pair of Bermuda shorts.13 Sir Wilfred's ploy might have fooled Christine, but it shouldn't get past an alert judge or prosecutor. By reading from a document that he hasn't offered into evidence, Sir Wilfred violates the Best Evidence Rule.14 And Sir Wilfred has to show whatever he's reading to the witness to the prosecutor. The prosecutor undoubtedly would not permit the chicanery, though he might get a good lead on where to purchase Bermuda shorts in London. 7. Trial15: A Search for Truth David Blake's client Angel Chavez is charged with murder that occurs during a supposed "attempted statutory rape." Chavez was on the beach on a warm night, and the teenage girl with whom he was having a friendly conversation suddenly died. A prosecution witness testifies that he heard screaming coming from the beach, shined his car's spotlight in the direction of the scream, and immediately picked out Chavez clutching at the girl. During cross-examination, Blake places a spotlight identical to the one on the witness' car in front of the witness, and asks the witness to try to identify someone in the courtroom. The lights in the courtroom suddenly go out, and Blake's secretary begins screaming. The witness shines the spotlight all over the courtroom, but is unable to pick out the screamer until the lights come back on. While running the usual tactical risks, Blake's ploy seems legally permissible. The spotlight mechanism that Blake brings to court is identical to the one on the witness' car. Moreover, having to pick out one person in a closed dark courtroom seems a fair test for a witness who claims to have picked out a screaming victim on a broad beach at night. It's a shining example of a legitimate courtroom experiment. 8. Philadelphia16: Mirror, Mirror on the Wall Joe Miller represents Andrew Beckett, a lawyer who claims that his former law firm unlawfully fired him after a facial lesion clued in one of the firm's partners to the fact that Beckett had AIDS. Belinda Conine repre- sents the firm, which claims that Beckett was fired for incompetence. Cross-examining Beckett, Conine holds a mirror up to his face to demonstrate that he does not have any visible lesions. But it turns out to be a two-way mirror. On redirect, Miller asks Beckett to unbutton his shirt and hold the mirror up to his chest. The mirror reveals a gruesome chest, full of lesions. Dramatic though it is, this scene should not occur in an actual trial. Conine's initial demonstration is improper, because whether or not Beckett has lesions on his face at the time of trial is irrelevant. The only thing that matters is what Beckett's face looked like at the time he was fired, and the fact that the facial lesion disappeared after he was fired is irrelevant. Miller's clever response is equally improper. Certainly, Miller is entitled to show the jury what Beckett's facial lesion looked like at the time he was fired. It's relevant because the more apparent the lesion, the more likely that the firm's partners knew that Beckett had AIDS. So Miller could properly have offered into evidence a photo of Beckett taken around the time that he was fired, or even a photograph of a lesion that looked like the one on Beckett's face at the time he was fired. But the sight of Beckett's lesion-covered chest creates an emotional impact on the jury that goes far beyond what is necessary to illustrate the appearance of Beckett's facial lesion. Conine would have objected, and the judge should have forbidden the demonstration. 9. To Kill a Mockingbird17: The One Hand Catch Atticus Finch is a small-town Southern lawyer heroically trying to defend a black man, Tom Robinson, against a charge of raping Mayella Ewell, a white woman. Lying through their gums, Mayella and her father Bob testify that Tom brutally beat her. Cross-examining, Atticus demonstrates that Mayella's injuries were caused by a left-handed person. Atticus then turns and throws a small drinking glass in Tom's direction. Tom catches the glass in the only hand he can use, his right; Tom explains that his left hand was paralyzed as a result of a cotton gin accident. Atticus' demonstration gives Tom's inability to use his left hand a double emphasis. First, Atticus relies on a kinetic demonstration, not just on Tom's testimony. Second, Atticus juxtaposes the demonstration with his cross-examination showing that a left-handed person attacked Mayella. The demonstration itself is surely proper. Since Tom is charged with committing a violent physical act, a judge should permit a quick physical demonstration of Tom's disability. But Atticus improperly conducts the demonstration during cross-examination of Mayella. Judges often construe the mere physical display of a body part not to be testimony. So had Atticus simply thrown the glass to Tom, a judge might have allowed the demonstration. However, Atticus also questions Tom about his inability to use his left hand. Tom is clearly testifying, and the demonstration should have awaited Atticus' case-in-chief. 10. From The Hip18 I: The Open Door Policy Stormy Weathers represents Professor Douglas Benoit, a psychopath charged with murdering a prostitute named Liza Williams. Weathers dramatically calls a halt in mid-trial to announce that within a few moments, Williams will walk through the courtroom door. She doesn't, but Weathers immediately argues that the fact that the jurors looked towards the door indicates that they have a reasonable doubt about Benoit's guilt. Weathers' unusual ploy fails on three counts. First, his argument that Williams is alive is inconsistent with Weathers' opening statement, during which Weathers announces that the only issue in the trial is the identity of Williams' killer. Second, Weathers is not supposed to break into closing argument in the middle of trial, but this is a common failing of movie lawyers. Finally, the jurors would probably have looked toward the door if Weathers had announced that Elvis was about to walk through it. Thus, the argument is improper because it's irrational and not grounded on a "reasonable" doubt. 11. From The Hip II: Pulling Rabbits Out of Witness Chairs In the same trial, Officer Scioscia testifies for the prosecution that Benoit was driving around with a bloody hammer and Williams' bloody clothes under the driver's seat, and that because of their location Benoit must have known they were there. Cross-examining the officer, Weathers tries to show that Benoit was unaware that the murderer had hidden these objects in his car. In a harebrained demonstration, Weathers pulls a caged rabbit out from under the witness chair. For good measure, Weathers also finds a vibrator in the D.A.'s briefcase. The judge and jurors are delighted, perhaps hoping next for a few good card tricks. Weathers' tactics are too implausible even to fool people who have seen all of the Rocky movies. What Weathers should have done was object to Officer Scioscia's testimony that Benoit was aware of the bloody objects under the driver's seat. That's an improper opinion, since the jurors are as capable as the officer of drawing that inference. And Scioscia's failure to notice the rabbit is irrelevant. There's no logical connection between Scioscia's ability to detect the rabbit and Benoit's awareness of the objects under the driver's seat. For example, Benoit went in and out of his car numerous times; Scioscia sat in the witness chair just once. That's once more than most people can sit through this film. 12. The People vs. Dr. Kildare19: Picture This Frances Marlowe is a professional ice skater with a new contract. Frances sues Dr. Kildare and Blair General Hospital for malpractice when she wakes up from surgery to find her right leg paralyzed. She testifies to her injuries next to a full-size glamorous photo of herself in a skating costume. All the jurors are impressed, except for the Romanian juror, who gives the photo a technical mark of 4.8. Frances' career as a professional ice skater is relevant to the amount of her damages. A judge would probably permit the plaintiff to display a photograph or even show a videotape of Frances performing to aid the jury's evaluation of the probable worth of that career. But a defense attorney would surely and legitimately object to a life-size portrait of Frances remaining visible throughout her testimony. The ploy's likely emotional impact outweighs the portrait's probative value. 13. A Place in the Sun20: Confess Oar Else George Eastman is charged with murdering his former fiancee, Alice Tripp, by taking her for a ride in a rowboat and drowning her. Eastman testifies that Alice accidentally fell into the lake. Cross-examining Eastman, the D.A. brings the rowboat into the courtroom and asks Eastman to re-create the supposed accident. The D.A. concludes by shattering the oar against the side of the boat. The D.A. should probably not have been allowed to ask Eastman to go into the rowboat and demonstrate how Alice fell into the water. Since the courtroom's designers forgot to include a lake, the rowboat will be steadier than it was on the water and the experiment is therefore misleading. And the smashing climax to the cross-examination is obviously an improper attempt to inflame the jurors' passions against Eastman, especially since the D.A. does not contend that Eastman struck Alice with the oar. 14. Beyond a Reasonable Doubt21: Reduce the Defense to Ashes Successful author Tom Garrett has intentionally planted clues implicating himself in an unsolved murder in order to demonstrate the unfairness of capital punishment. The D.A. hoists Garrett on an unplanned petard. The killer was seen smoking a pipe. Asked by the D.A. on cross-examination whether he smokes a pipe, Garrett says no. The D.A. then asks a pipe smoker on the jury to light up. The juror does so and tamps down the tobacco with his matchbook cover, leaving a small brown circle on the cover. The D.A. then triumphantly produces identically marked matchbook covers, which the police had found in Garrett's garage. Though jurors may often wish for the right to "pipe up" in the middle of trial, the D.A. cannot make them into witnesses. The D.A. should either have provided expert testimony about the significance of the brown circles on the matchbooks in Garrett's garage, or simply asked the jurors to infer from looking at the covers in light of their own experiences that those circles indicated that Garrett smoked a pipe. 15. Mountain Justice22: Gunning for Victory Suave New York lawyer Paul Cameron arrives in Tennessee to prosecute a hillbilly named Jeff for shooting at a county land surveyor. Jeff's defense is that he does not own the rifle used in the shooting. In front of the jury, Cameron picks up the rifle, turns to Jeff (who's relaxing at the counsel table), and asks, "Do you want to take your rifle home with you?" Jeff happily but stupidly accepts it. Fooling Jeff is probably not the intellectual highlight of Cameron's career. Cameron's bigger problem is that he's not supposed to examine witnesses while they are seated at counsel table. On the other hand, perhaps the film identifies a process to make truth emerge more regularly at trial. Witnesses have their guard up when they're on the stand. If they were arranged around the courtroom and lawyers could mill about and question them at random, witnesses might be surprised into truth. 16. The Unholy Three23: You're No Lady Echo is a master of disguise and a thief who gains entry into rich people's houses by posing as a grandmother who owns a pet shop. Hector, an innocent pet shop employee, is on trial for a robbery and murder committed by Echo's gang. To save Hector's life, Echo (in his grandmother guise) testifies truthfully to an alibi. But grilled by the D.A. on cross-examination, Echo's voice slips. The D.A. stares at Echo, perhaps considering whether his next question should be, "My, grandma, what a deep voice you have." The D.A. then suddenly whips off Echo's wig to reveal that grandma is a phony. The courtroom device in this film is admittedly more "yank" than "prank." But it deserves inclusion here because it occurs in Lon Chaney's only "talkie"; he died before the film was released. Obviously, the D.A. should not personally have grabbed at Echo's wig. When his suspicions were aroused, the D.A. should instead have asked for an in-chambers inspection of granny. The D.A. not only risked a contempt citation, but also his wig-grabbing stunt probably doomed whatever hopes the D.A. might have had of becoming an English barrister. 17. Roxie Hart24: Faint of Hart In this courtroom farce, Roxie Hart is an ambitious dancer who admits to killing a man in order to gain publicity. Uncertain whether Roxie's gorgeous legs are enough to get her off, defense attorney Flynn stomps on Roxie's flowers during closing argument and asks the all-male jury not to crush her like he did the flowers. On cue, Roxie runs to the flowers and faints. Flynn picks her up and, with Roxie lying prone in his arms, intones, "The defense rests." Flynn's stunt capitalizes on the usual chauvinistic images of male jurors who are so captured by a helpless woman's beauty that they are unable to convict her. But the images are tolerable in a film that so neatly skewers lawyers, journalists, and the criminal justice process. Flynn's prank is of course improper. It's an appeal to the sympathy that (in our supposedly rationalistic system of justice25) jurors are ordered to ignore. Flynn would be disciplined, and the prosecution would get a new trial. Roxie might not mind at all - just more headlines for the grabbing. Conclusion Some years ago, I brought a group of trial advocacy students to court to observe a real trial. The trial we watched involved a multiple murder arising from a drug deal gone bad. Speaking to the law students during a recess, the judge apologized for the tedious testimony. As the judge's remark suggests, the term "trial" connotes a sense of tension and spontaneity that the reality rarely achieves. Yet most of us want trials to be exciting - to capture a dramatic conflict in a few moments. Though the pranks found in many courtroom films are rarely realistic, filmmakers accurately project our desires that real lawyers could engage in the same pranks as their movie counterparts. |
