Were the 12 Angry Men Right?

In the 1957 classic “12 Angry Men” Henry Fonda finally persuades the other eleven jurors that, although the defendant may well have been guilty, the prosecution’s evidence did not establish beyond a reasonable doubt that he was the one who stabbed his father to death. In his systematic debunking of prosecution evidence, Fonda rebutted the inference that the knife found in the body must have been the unusual, decorated switchblade that the defendant purchased earlier that night after a fight with his father. Witnesses, friends of the defendant, identified the fatal knife as being exactly the same kind they saw in defendant’s hands on the street, and the shopkeeper testified that he had never seen another like it. In the most dramatic scene of the film, Fonda produced a second identical knife that he had bought down the street during the trial. Was that enough to demote the knife, together with the other evidence, below the reasonable doubt threshold?

Much of the evidence upon which the prosecution relied was, indeed, badly flawed. There were eyeglass marks on the nose of the eyewitness when she testified. She would not have been wearing glasses in bed in the dark, when, tossing and turning, she saw the stabbing across the street and through the windows of a moving elevated train. Of course, she might only use reading glasses, the marks appearing on her face because she had been perusing War and Peace while awaiting her turn to testify. Still, thinking of her glasses, the jurors properly started to doubt her positive in-court identification.  (In-court identifications in general ought carry little weight. The witness is asked to look around the courtroom to see if she recognizes the perpetrator. At one table is sitting the prosecutor and her assistant. At the other is the defense counsel and somebody else looking very uncomfortable. Who could that be?) 

The ear-witness identification of the defendant’s as the voice that shouted “I am going to kill you” just before the thud of the body hitting the floor is doubtful given the noise of that passing elevated. As he was somewhat crippled, the testimony of that same witness is also less than credible that he made it down the hall to his apartment door in time to make out that it was the defendant running down the stairs. 

Still the prosecution was not without evidence. There was motive. The victim had abused the defendant in the past, and the two had a shouting match earlier in the evening. Then there was the knife. The defendant went out and bought the switchblade right after that argument. His friends saw him with it, and testified that the murder weapon was that knife (or, of course, one so similar they could not have distinguished it.)  

The defense did not put in any evidence, or, apparently, so much as suggest any other potential perpetrator or even any general class of possible perpetrators – home invasion burglars, loan sharks, jealous husbands, . . . . Of course, the defense need not suggest an alternative to the prosecution’s theory. The defendant is clothed with the presumption of innocence.  Yet when there is prosecution of some persuasiveness, an alternative defense theory may well be what keeps that prosecution evidence from rising beyond a reasonable doubt. (A case in which the defense offers no alternative theory and only pokes at the prosecution evidence is called a “reasonable doubt defense.”  Although sometimes enough holes are poked to gain an acquittal, most litigators believe that it is hard to beat something with nothing.)

Although offering nothing as to any other possible perpetrator, the defense did offer an alibi and an account of what happened to the knife from the defendant’s own testimony. A criminal case in which the defendant testifies is a very different thing from a case in which the defendant rests on the Fifth Amendment right to remain silent. Following defendant testimony jury deliberations tend not to be “did the prosecution prove its case beyond a reasonable doubt?”  Instead they are, “do we believe the defendant?”  More than once a juror appealed to his fellows, “can you believe his story?” The clear suggestion was that a negative answer was tantamount to a vote of “guilty.”  

This was a logical mistake as well as a sin against the reasonable doubt standard. One innocent of the crime charged may lie on the stand.  Were you on the jury, you would want to caution the others that dubious defendant testimony is not enough to meet the prosecution’s burden.  You would also, however, be sensitive to the fact that the defendant’s testimony as well as his statements to the police was part of the evidence. If defendant testimony is incredible that may count for something towards reaching the beyond a reasonable doubt standard. Just how much it counts depends upon the content of what the defendant is incredible about.

 A criminal procedure note about defendant’s statement to police: This was almost a decade before Miranda, so the prosecution didn’t have to show compliance with the now familiar warning requirements. However, even in 1957 a coerced statement would be suppressed, and there were some grounds for concern about police conduct here. Defendant testified that he had been precipitated down a couple of flights of stairs by the officers. If that happened after the defendant made his statements, then it would not itself have tainted those statements. Still defense counsel should have aggressively pursued just what the police did to get the suspect to talk via a suppression motion leading in NY to what is called a “Huntley hearing.”  If Fonda was right about the competence and enthusiasm of defense counsel, however, this may not have happened.

Defendant’s statement to the arresting officers was not a confession, but it was, in the end, something of a negative for the defense. No, he hadn’t stabbed his father. He had just come back from the movies, where he had seen a double feature. Were this true, that is, had he seen the entirety of two movies, he could not have been the murderer. He admitted, however, that he could not remember the names of the movies or the stars. So far as we know he was not asked about and did not volunteer anything about the plots or the temporal or geographical setting of either film. (The police should have asked these questions. If he knew nothing about the films he claims just to have seen, it would be some confirmation that they had the right guy. If he did know, they might still take him into the precinct, pending further investigation. It is possible that he saw the films before that night or that friends had told him about them, or that he had seen part of each film in the time between the murder and his return to the apartment.  Could he have given some information about the films, however, police should at least have kept their eyes open to evidence of other possible perpetrators.) 

Defendant did testify at trial as to the names of the films and some additional details, explaining, not too implausibly, that the shock of finding his father murdered and himself suspected had driven these matters completely, although temporarily, out of his memory. One of the jurors observed that defendant’s lawyer could easily have gotten and fed him the information on the films. Fonda might have responded, “Do you really think this half-hearted lawyer would have put his career at risk by suborning perjury? Would he expose himself to prosecution by conspiring in and facilitating perjury? Maybe defendant found out what was at the neighborhood theater that night from other inmates at Rikers Island, but I am pretty sure his lawyer didn’t go check with the theater box office and relay that information to him.”

As a juror, I would have found his inability to give the movie names to the arresting officers of nearly zero weight. I am inclined to think that even if he stabbed his father he may well have run into the theater. He really just couldn’t remember.  He also might have made up a movie story because he was actually at the neighborhood brothel or looking for drunks to mug.   

The knife, however, is a different matter. I think the knife is important, and so what the defendant said about the knife is important. We know that the defendant testified about the knife at trial. You might think this would have been on cross, as the prosecutor confronted defendant with his friends testimony about his purchasing the knife that night and their getting a good view of it in his possession. An able defense counsel, however, would have brought it all out on direct examination by way of preemption, subliminally communicating to the jury that the defendant had nothing to hide about the knife.

We do not know if the knife came up in the police interrogation of defendant in the apartment. Police had not yet found the friends with their account of seeing the knife in defendant’s possession that very night. It would have been natural, however, for police to have asked, “That’s your knife isn’t it?” If defendant owned up to the knife at that time, it would have been a good piece of defense evidence; had he denied it, that would have been even better prosecution evidence. As neither Fonda nor his interlocutors mentioned police interrogation on the knife, we have to assume that it didn’t happen.

Defendant’s trial testimony came after the knife had been introduced into evidence, identified by the police, by the medical examiner, and by friends of the defendant who had seen him with just such a knife that night. So a large part of defendant’s testimony had to deal with the knife. He bought it after the fight with his father. Presumably the prosecution cross established in the minds of the jurors a pretty clear causal connection between the fight and the purchase.  Explaining why he had no knife when he returned to the apartment at 3:00 a.m. and was met by the police, the defendant testified that the knife must have slipped out through a hole in his pocket. If you were a juror, you might have wondered about the probability that one would put a new knife in a pocket with a hole and that such a large pocketknife would not have hit his leg as it fell or have made an audible noise when it hit the pavement. You would have wanted the defense to put the garment into evidence, and you would have inspected it to make sure that the hole was worn through, not newly cut.  That the knife was put into a pocket with a hole and fell unnoticed is quite possible, but estimates of its probability might vary pretty widely. 

The really important problem that the knife presents for the defense, however, is how difficult it makes any alternative perpetrator theory. If someone else murdered the father, that real perpetrator must either have bought (as Fonda did buy) an identical knife (or received it as a gift from his aunt) or he must have picked up defendant’s knife after it fell out of his pocket.  

Fonda showed that the two knife theory was possible; he did not show that it was probable enough to be taken seriously. It occurred to me that this might be really, really improbable because switchblade knives are illegal to possess or to sell in New York.H owever, a quick check showed that the current anti-switchblade law goes back only to 1958. That statute includes a couple of exotic variations of quick action pocket knives, however, and there may well have been an earlier version that covered this classic switchblade. I did not dig far enough into the Penal Code history to find out. In any event, it was either a very uncommon knife or an extremely uncommon knife. That it would be purchased by an angry son and, without the slightest causal connection, an identical copy by the real murderer (burglar, loan shark, jealous husband) seems to me to be well less than lottery probability. 

The second possibility is that whoever found the knife after it dropped out of the pocket of the defendant happened to be a loan shark, or whatever, who had his or her own reason to want to kill the victim. Happening upon an appropriate instrumentality for that project, it was picked up and utilized. This, too, would seem an extraordinary coincidence. It was as if the knife were mystically tied to the victim. Bought by one person to use (conceivably only by way of threat or self-defense) against the victim, it happened to be picked up on Avenue B by someone else focused to the point of murder on our otherwise unremarkable victim. Of course it is possible, but it is very unlikely.

I am now going to speculate as to what I might have done had I been defense counsel, beyond trying to get the statements to the police suppressed. It is the grossest sort of speculation given how few facts I know, but, then, given that this is fiction, the crucial additional facts do not even exist. (The logician’s law of excluded middle doesn’t even apply in fiction. “Either the victim was bald or it is false that the victim was bald” is not true here.)

In the first place, of course, I do not put the defendant on the stand if he intended to lie. Permitting known perjury would flatly violate my duty as an officer of the court. Incidentally, our fictional lawyer must not have been confident that his client was lying. Had he been, it would have provided him a way out of the case, which, if Fonda was right, would have delighted him.

DC: May we approach, your Honor? . . .  My client and I have an unresolvable and crucial conflict. I must ask to be removed from the case. 

J: What is the nature of the conflict?  

DC: I must respectfully decline to answer that question. 

J: Unless you can give me some inkling of another sort of conflict, I assume it has to do with your client’s testifying, and, given what a delay to get a new lawyer would do to my calendar, I am going to order you to proceed. I’m sure you know what you are ethically required to do when it comes to your client’s testimony.”  

When the defendant took the stand, his counsel would ask, “Is there anything you would like the jury to hear?” and that, with the possible exception of “anything else?” would have been his complete direct examination. In summation defense counsel could not refer to or even make indirect use in his argument of anything his client said that he thought false. This little song and dance would make it perfectly clear to judge and prosecutor that the defense counsel was confident that his client was lying. (Today, there might also happen to be a lawyer on the jury who would explain this to the other jurors. Case over. In 1957, however, there were no lawyers on NY juries.)

Assuming that I could let my client testify, and that he testified as we understand from the film, I would see if I had the resources to suggest that it was one of defendant’s friends who saw the knife fall out of defendant’s pocket and who made murderous use of it. This would have to be a fiendish friend, and presumably one with a serious grudge against the victim. He would have seen how easy it would be to frame the defendant. Leaving the distinctive knife in the body, a knife both he and another could testify that defendant had just bought, might well be enough. It would certainly deflect police attention in that direction and away from himself. I would make the friend seem suspicious, if I could, in cross examining him, even if I do not believe he was, in fact, the murderer. 

“The friend did it” theory also has the virtue of explaining a troubling problem in the prosecution case. How is it that the defendant had the presence of mind to wear gloves or wipe the knife clean of fingerprints, but not the presence of mind to take the knife away with him for disposal off site? To think of wiping prints is to think of the knife as evidence and for the defendant to think of this particular knife as evidence is to realize that it will implicate him.  Wiping and leaving the knife is exactly, however, what the framing friend would do. 

Now it might be that one of the testifying friends would have come across on probing cross examination  as a vicious character who had had a prior serious run-in with the victim or harbored a secret hatred of our defendant. Alternatively, the testifying friends might be choir boys with a dozen potential alibi witnesses. Casting suspicion towards a testifying friend might well contribute to a reasonable doubt – or it might be hopeless. In any event, had Fonda ever thought of this possibility, he would have realized that defense counsel had given him absolutely nothing of this sort to work with.  

So the alternative perpetrators the jurors were really left with were only an independently murderous enemy of the victim who just happens to select the same rare knife as did the defendant or an independently murderous enemy of the victim who just happens to come across the knife the defendant dropped and concluded that now was the time and this is the instrument for his evil deed.

Not every possibility is the basis for a reasonable doubt – else the possibility of assassination by space aliens would mean acquittal in nearly every case. Here the alternative perpetrator cases are not quite as improbable as space assassins, but they are so improbable that they are not the sort of possibilities that reasonable people would take seriously in dealing with significant matters in their own lives. Even when added together, “it could have been A or B” they do not seem to me to raise a reasonable doubt. Fonda’s knife drama notwithstanding, the 11 should have been able to use the knife evidence to persuade Fonda. 

I have to express a caveat here. Were these real jurors who heard real testimony, I would be very hesitant to second guess their acquittal. They heard the defendant; they heard the friends. Without even being able to articulate what it was, there may have been that in the demeanor of these witnesses that led them towards acquittal, despite the knife, once they got beyond ethnic bias, class bias, age bias, and shoddy eye witness and ear witness testimony. It is sometimes safe to criticize a convicting jury of a trial one did not sit through. Presumption of innocence and proof beyond a reasonable doubt make it always dangerous to criticize from afar an acquittal.

Another post on criminal law in the movies (Delores Claiborne), abandoned attempts and manufactured self defense:
Conjectures & Arguments, Philosophy & Law: Was Dolores Claiborne guilty? Abandonment of Attempts & Causing the Conditions of Own Defense (lawrencecrocker.blogspot.com)

In a celebrated American novel, "Half formed intent, change of heart, assault, accident, and failure to rescue. Should Clyde Griffiths have been electrocuted?" Conjectures & Arguments, Philosophy & Law: Half formed intent, change of heart, assault, accident, and failure to rescue. Should Clyde Griffiths have been electrocuted? (lawrencecrocker.blogspot.com)

 
Criminal law theory in a real case (Zarate) abandoned and malignant heart murder:
Conjectures & Arguments, Philosophy & Law: Proving Abandoned and Malignant Heart Murder: The Zarate Case (lawrencecrocker.blogspot.com)

If you are interested in movies and metaphysics as well as movies and murder: "Groundhog Day: The Movie as Metaphysics": Conjectures & Arguments, Philosophy & Law: Groundhog Day: The Movie as Metaphysics (lawrencecrocker.blogspot.com)  

"'Her' Computer Consciousness: Can an Artificial Intelligence Be in Love?":
Conjectures & Arguments, Philosophy & Law: Russian Doll: Time, Many Worlds, and Computer Simulations (lawrencecrocker.blogspot.com) 

"It's A Wonderful Life: The Metaphysics": Conjectures & Arguments, Philosophy & Law: “It's a Wonderful Life” -- the Metaphysics (lawrencecrocker.blogspot.com) 

"The Many Worlds Metaphysics of The Man in the High Castle," Conjectures & Arguments, Philosophy & Law: The Many World Metaphysics of "The Man in the High Castle" (lawrencecrocker.blogspot.com)  

"Russian Doll: Time, Possible Worlds and Computer Simulations;" Conjectures & Arguments, Philosophy & Law: Russian Doll: Time, Many Worlds, and Computer Simulations (lawrencecrocker.blogspot.com)