ONE ANGRY BLOGGER: Tyler Cowen, blogging over at the Volokh conspiracy, asks for suggestions for movies he might view in the “law and literature” class he teaches. My first thought – Twelve Angry Men – is dismissed by Cowen as an aesthetic failure, though I wonder if aesthetic brilliance should be a criterion for inclusion in a law and literature class. Sure, there’s a certain threshold of quality which a movie has to meet (which I think TAM does meet, even granting Cowen’s reservations), but beyond this the main concern should be that the movie provokes students to reflect on an important issue or issues in the law.

I watched TAM about two weeks ago, and though it’s not a great movie by any means, it is a good movie and (more significant for the present post) it does move one to reflect on a key concept in criminal law, that of “reasonable doubt.” When is doubt reasonable? Henry Fonda’s character (his goodness blatantly telegraphed by his white suit) refrains repeatedly that, “I don’t know. I’m not saying it happened that way. I’m saying it’s possible.” But what kind of standard is this? It’s obviously not logical possibility, because that just opens the door wide open. So it’s something more restrictive that than, but what?

This being the second time I’ve seen TAM, I wondered how convincing the Fonda character’s case really was – I remembered being very convinced that there was reasonable doubt about the teenager’s innocence. This time I wasn’t quite as convinced. A lot of the persuasive power of Fonda comes from factors quite apart from the facts of the case – some of the last men standing include the blatant bigot, the man who has problems with his son (and again, that this is what’s going on is practically shouted out early in the movie – or are these things you notice only the second time around). And then, after two or three members of the jury have switched their votes to not guilty, there’s a momentum shift, and you, the viewer, are hard pressed not to jump on the bandwagon.

But what about the facts? The one “rational” opponent of Fonda, who holds out against him is convinced by an argument that – if I understand it right – is pretty weak. The kid couldn’t remember what movies he saw (that was his alibi, that he was at the movies when the murder occurred), and this is rendered plausible by, what?, the fact that the man couldn’t remember the second bill of a movie he saw several days ago? And at least he could describe something about it. As far as we know, the kid couldn’t even roughly describe the movies he saw (and wouldn’t he, if he could? “It was the one about …”). The injury of the old man who lived beneath the train might have been recently sustained; the woman might have needed her classes because she couldn’t see things close up (as the man with the family problems pointed out).

It seems possible that most of the doubts the Fonda character had about the murder could have least been challenged at bit more – a lot of the convincing Fonda does go in for is made in many cases by high drama rather than rational persuasion, strictly speaking (getting the man with family problems to say “I’ll kill you”; finding a knife with a design similar to the one the kid had, and stabbing it on the table, just after everyone has says “there’s no way anyone could find another knife like that”). There’s some irony to this, as Fonda’s character is ostensibly the calm, cool, rational one.

Still, all the doubts need to be are reasonable – and don’t Fonda’s doubts add up to this? But what’s the object of the reasonable doubt? That I find one of the prosecution’s facts dubious? This clearly sets the bar too low. What’s needed, it seems, is enough doubt about enough (significant) individual facts so that they add up to reasonable doubt about whether the convicted really did commit the crime. But this is a very vague standard, and even charitably interpreted, I’m not yet convinced that Fonda does show there to be room for reasonable doubt. Mere possibility that the facts may be wrong is not enough – does it have to be probable that they are wrong? Is that what makes the doubt reasonable, i.e., that there’s a better chance (or at least an even chance) the facts as the prosecution are true as they are false?

But even bracketing this issue, there’s another big issue the movie tackles, which we get most visibly in the scene when Henry Fonda’s character is in the bathroom, talking with another juror. That juror says, in response to Fonda’s “supposing he’s innocent”: “supposing he’s not, then you’ve got a criminal set free on the streets.” Fonda pauses, and reflects. The movie is, to a large extent, a defense of process over substance – the good of a process that may allow some guilty persons to go free in order to avoid convicting those who may look guilty but aren’t really. That’s why the standard of reasonable doubt is there, it’s a much lower standard, then, say, a preponderance of evidence. But why have things set up like this? Further, and going back to the movie: how much does it matter that Fonda convinces us that it is likely that the kid didn’t commit the crime as opposed to that it’s reasonable to doubt he committed the crime? Likelihood seems to point to the question of whether he did or didn’t commit the crime. Reasonable doubt is an epistemic standard – given what we know, would it be reasonable to believe that he committed the crime? After all, it’s no contradiction to say, “One can reasonably doubt that he committed the crime, but it’s pretty likely he did do it.” And on this reckoning, you’d have to vote not guilty. But what would be wrong with having a system where we voted on likelihood, rather than reasonable doubt, assuming the two don’t, at some level, collapse into one another?

Anyway, these are just questions raised by the movie – and they raised in such a way that talking about the movie and its characters and its drama, we’re moved naturally to consider them. At least I was.

- posted by Chad @ Monday, July 07, 2003