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Jonathan Hafetz

Hi, I'm Jonathan Heifetz, and welcome to Law and Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law and about the larger social and cultural context in which it operates? This episode we're going to examine anatomy of a fall. The 2023 acclaimed French drama, directed by Justine Tria from a screenplay she wrote with her real life partner Arthur Harari.

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Jonathan Hafetz

The movie centers on the criminal trial of a writer, played by Sandra Hiller, who is accused of and tried for killing her husband, played by Samuel Malesky, in a small town in the French Alps. The film operates on multiple levels. On one level, it dissects the circumstances surrounding Samuel's death, what caused him to fall from the window of their chalet?

00;01;16;00 - 00;01;40;03

Jonathan Hafetz

Was he pushed or did he jump? On another level, the film dissects the deteriorating marriage between Samuel and Sandra and the complex family dynamics surrounding their 11 year old son Daniel, played by Milo Machado Grenier. The film offers a detailed account of a French criminal investigation and trial. More broadly, it raises important questions about the nature of human memory, the elusive nature of truth, and the complex relationship between law and justice.

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Jonathan Hafetz

My guest to discuss anatomy of a fall and returning to law on film are Fred Davis and Samuel Beckwith. Fred Davis is a former federal prosecutor, a member of the bars of New York and Paris. His practice is focused on multi-jurisdictional criminal investigations. He teaches and writes extensively on comparative and cross-border criminal matters, including about the US and France.

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Jonathan Hafetz

Fred is also the author or coauthor of several book chapters and academic articles. In addition to that work, he served as an advisor to the prosecutors at the International Criminal Court and the International Criminal Tribunal for Rwanda, and participated as counsel for victims in the trial of Chadian dictator. He sang horribly in Dakar, Senegal, for international human rights violations, but appears frequently on national TV in France to address issues related to American and international criminal justice.

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Jonathan Hafetz

In 2002, the French government named him a Chevalier of the National Order of Merit of France for work representing French interests. And in 2023, Fred was named a Chevalier of the Legion of Honor of France, the highest civilian honor for his academic and teaching work as a lecturer at Columbia Law School. Fred teaches a class on comparative criminal procedure through film.

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Jonathan Hafetz

I'm also joined by Sam Betsy, who's an adjunct professor at Thomas Jefferson School of Law. Sam has worked for many years for the Department of Justice, and has been an assistant US attorney in San Diego since 1989. Since 1985, he's been teaching law as an adjunct professor. Several years ago. He started teaching comparative law through film, and after developing the course, he published a book, Comparative Criminal Procedure Through Film.

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Jonathan Hafetz

This book, which is now available in e-book form, contains 400 film clips from 55 countries and 15 legal traditions and is an indispensable guide and resource for people studying film and comparative approaches to film in particular. Sam also teaches trial skills at University of San Diego School of Law, and served as an active reservist in the Army Judge Advocate General Court, retiring as Lieutenant colonel.

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Jonathan Hafetz

Fred Sam, welcome back to Law of Film. It's great to have you on to talk about anatomy of a fall.

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Frederick Davis

It's good to be here.

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Samuel Bettwy

Thank you. Yeah. Thanks so much, Jonathan.

00;03;47;18 - 00;04;11;24

Jonathan Hafetz

So this film, which has been widely acclaimed critically and done quite well commercially, explores this fall, which happens early in the film and the question of what happened, and then a whole series of relationships and other questions around that. Early on, there are several conversations between Sandra Victor, played by Sandra Kugler, and Vincent Renzi, played by Swann, or Load, who's her longtime friend, and also serving as her criminal defense lawyer.

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Jonathan Hafetz

So these conversations begin just after the fall, and they discuss possible strategies, given that at that point Sandra is already a suspect.

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Anatomy of a Fall Dialogue

So, as you know, the autopsy report is inconclusive. But because of this, the forensic pathologist didn't have enough concrete evidence that what we can defend is a fall from the attic window with him bouncing off the shed roof. His head may have hit the edge somewhere around here. So then it would have landed on the ground approximately here.

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Anatomy of a Fall Dialogue

And it seems that he found the strength to crawl one meter or two before collapsing in this final position. That explains the blood and the snow, that there are several problems. First to nothing on the roof, no DNA, nothing. And is this three blood spatters here on the wall? It seems it doesn't really match with the ad impact on the roof.

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Anatomy of a Fall Dialogue

And the judge has asked an expert to clarify this. And when you see this, what do you think? I don't know. I'm not a spatter analyst, but, I know a very good one. So I'm going to get her opinion. There's the one last problem for. That bruising on it might look like the result of a fight struggle.

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Anatomy of a Fall Dialogue

I know, when did this. It takes me. That same night. My sleeves rolled up and I saw it. And you explained it to them right away. I know exactly how it happened. Should I show you? Yeah, please. So when I'm here in the kitchen, I bring my arm on this all the time. It seems like when I move, it's ridiculous.

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Anatomy of a Fall Dialogue

It happened several times that weekend. I told them that my skin marks easily. And I could ask Daniel because he hears me bumping into it all the time. Okay. So as you can see, an accidental fall is going to be hard to defend given the height of the, window sill. So that's why there's an investigation for my suspect.

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Anatomy of a Fall Dialogue

And you're you're you're not suspicious. This. Yeah. I knew Tim was there because you were the only person there. Okay. And, of course, your his wife, now looking for a stranger, walks in, kills him while you were sleeping right above. And Daniel was up for work is a shitty strategy. Samuel had no enemies. That's not me. Stop!

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Anatomy of a Fall Dialogue

I did not kill him. That's not the point. Really? We have to go through Samuel's personality. What was he going through lately? Is there anything that would seem consistent with, suicide? I thought about it, obviously, but I just can't imagine him jumping with Daniel so close by. It's just. I just can't get it in my head.

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Anatomy of a Fall Dialogue

Yeah, but it's probably our best defense. I mean, if they invite you, it's all on the defense. But I think he fell. Yeah, but nobody's going to believe that. I don't believe that. I need to smoke.

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Jonathan Hafetz

So what were your impressions of these early conversations between Sandra and Ramsey, her attorney? Do they suggest anything about attorney client relations generally or in the French system?

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Frederick Davis

I can start if you like. Let's put this a little bit in context, Jonathan. What we learn in the early parts of the film is that it's about a couple. She is German, he is French. They're living in the French Alps, and they have a 11 year old boy who has limited eyesight because of an accident. And then the boy goes out for a walk and comes back and finds the body of his father out in front of their chalet.

00;07;45;14 - 00;08;05;11

Frederick Davis

And clearly he came from two stories up and either was pushed or he fell. And so the issue is, which was it? Did he jump off, or was he pushed off by the wife? In which case, of course, she's guilty of murder. And so in the early conversations with her attorney, there's a number of issues that approach an issue that we all know about.

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Frederick Davis

Namely, does an attorney explore different versions of what happened with a client, namely, is there sort of a back and forth to determine not what happened, but what we're going to portray in the trial? And as we all know, that's a very, very difficult philosophical issue. It's a professional issue for lawyers. There's one quote, though, that I had a little bit of a different reaction to.

00;08;28;04 - 00;08;47;12

Frederick Davis

At one point she says, you know, I really didn't do it. I did not kill him. And his immediate response was, that's not the point, right? And to me, there's actually sort of a common sensical interpretation of that. Something I've said to clients, both in civil cases, frankly, and in criminal ones, because clients sometimes have a sense that, look, this is easy.

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Frederick Davis

I didn't do it. Or in a civil case, this is easy. I know I'm right. And my point to them is that's not self effectuating namely, you know, you can't just go to trial and say I'm right. You have to go to trial and introduce evidence and make arguments and address the law. So I didn't find that comment itself as being particularly outrageous.

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Frederick Davis

But, you know, we do see in that and in other parts of the film address issue about whether something really happened as opposed to what's happening in court. That's a well-known theme in literature.

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Samuel Bettwy

Obviously, I agree with all of that. And as far as the relationship between defense counsel and his client there, yeah, seem very American in the sense that he's telling her it's not really about what the truth is. In fact, I wrote the quote he said, A trial is not about the truth. It's about. And then the filmmaker cuts him off.

00;09;38;22 - 00;09;59;20

Samuel Bettwy

It's like, I don't know why she cut him off, but maybe she didn't want to reveal her her message to explicitly. But it's all about doubt. You know, I think this film's all about doubt and even defense counsel when Vincent, when he's talking to Sandra, he looks doubtful. And he seems doubtful throughout the film that he doesn't seem to be that zealous.

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Samuel Bettwy

He's not, like a true believer in the United States, would be a defense counsel who would convince himself that his client is innocent and do everything to prove that she's innocent. He seemed not really convinced throughout, which buys into or supports what seems to be the filmmakers overall theme is doubt, and it might not seem like such a remarkable message to Americans because we're familiar with the concept of reasonable doubt.

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Samuel Bettwy

And even though it's it's supposedly the burden of proof or the standard of proof in France, I think what they sell all the time in the movies, and maybe for the French believe it, is that theirs is a truth finding system. That's what we're taught, whereas our systems are guilt finding system. So it's a truth finding system. But the filmmaker seems to just attack that and challenge that concept and say, no, it's really all about doubt.

00;10;48;12 - 00;10;54;25

Samuel Bettwy

It's about creating doubt from the defense point of view, and it's about eliminating doubt from the prosecutor's point of view.

00;10;54;28 - 00;11;12;09

Frederick Davis

It's a sort of a cynical tone to our discussion right now that I don't think that's necessarily inherent in the process. You know, I've been a trailer for years. I mean, I've had many conversations with a client saying, look, I hear you. This is not the way it's going to look, and that's what counts. You know, you go to trial and you don't say to the jury, find the truth.

00;11;12;09 - 00;11;36;09

Frederick Davis

You say, here's the evidence. And there's a difference between truth and evidence. I found, by and large, much of the interface between her and her lawyer not terribly objectionable, other than he seemed a bit passive at the trial itself. Somewhat unusually, the prosecutor was hyperactive and the defense counsel wasn't. And that's not normally the case. But, you know, I thought his role vis-a-vis what he was telling his client, you know, made a certain amount of sense.

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Jonathan Hafetz

Before we get to the trial, there's a pretrial investigation which we see snippets of, for example, their scenes where the government investigators, the French investigators, try to recreate the fall at the chalet and determine whether that shows anything about how Samuel fell. There's also Daniel, the 11 year old child. Whether he could have heard his parents calmly talking over the loud music from where he was standing.

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Jonathan Hafetz

So sort of a series of questions do they try to raise or address in this pretrial investigation? Can you talk a little bit about the pretrial investigations in France generally, how they work and anything about these scenes?

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Frederick Davis

Both Sam and I have thoughts about this. There's one person who appeared in the movie briefly, namely the investigating magistrate, who in this instance, I don't think he had a name, but he was a man. We saw him interviewing the wife. The investigating magistrate actually is central to the investigation, and it is he who makes the decision whether the case goes to trial.

00;12;34;03 - 00;12;59;11

Frederick Davis

It's not up to the prosecutor. It's the investigating magistrate who, in an important case like this, does the investigation. Interestingly, in the formal text of the Code of Criminal Procedure in France, it says the investigating magistrate is to use all means that his or her disposal to establish the truth and basically what he or she is supposed to do is find out what happened and to put everything, including exculpatory evidence, into a file.

00;12;59;14 - 00;13;19;28

Frederick Davis

Namely, we want to do a historical inquiry, a rational inquiry, and put everything in there. So and there's no indictment. I mean, they used the word indictment once as a translation is not a good translation, because ultimately what that person is says is I find that there's sufficient evidence to hold the person over on which she, in this instance, could be convicted.

00;13;20;04 - 00;13;43;24

Frederick Davis

So that was kind of in the background of what was going on. They then and Sam talked to the recreation, the French love recreations, and there's other movies that show them in a way that makes me, as an American, my hair curl for two reasons. One is the defendant often is told, or the accused not even defended yet the person who's being investigated has to be there in violation of what we think of as Fifth Amendment rights.

00;13;43;26 - 00;13;54;05

Frederick Davis

It also is totally crazy. I mean, Sam, there are a couple of movies you and I know about where there's recreation scenes that kind of get out of control. People start yelling at each other when it's not even on the record.

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Samuel Bettwy

I have a collection of films of French films and not just French films, but other civil law systems. Their films depict the reenactments of the crime. They get everybody there who was supposedly there and have them stand where they say they stood. And and then inconsistencies arise, and then stories start to crack. So it's a good way to get a confession through the reenactments.

00;14;16;13 - 00;14;41;28

Samuel Bettwy

And it's I think I would call it a variation or form of a confrontation. It's basically a confrontation. And we can see those a lot in films or confrontations between co-defendants or the defendant or the accused and the victim. But in this case, I you know, when I'm looking at this film, I think, oh, where can I get a clip, you know, one minute clip that I can show to the class which will depict, you know, what normally happens, you know, and then we can talk about it.

00;14;41;28 - 00;15;00;28

Samuel Bettwy

And I would say this is one of the very few parts of the film where I would do that, or I would take a clip and say, this is what happens. And it was, interesting that, it looked like the investigating magistrate was setting things up so that he could confront Sandra with how loud her voice must have been.

00;15;00;28 - 00;15;16;09

Samuel Bettwy

And maybe then, you know, get her to say that they were having an argument or whatever it was on that track. She was not very cooperative. She didn't like the fact that he wanted her to speak French when she would speak English, with her husband. And she didn't like the fact that he was having her raise her voice.

00;15;16;13 - 00;15;34;17

Samuel Bettwy

But that didn't seem out of line, that he's trying to recreate it and he's going to confront her. But he was completely thrown off because then the boy, Daniel, changed his story about where he was standing, which would change what he could hear and how loud the voices had to be for him to hear them. So that just derailed the investigating magistrate on his attempt to confront.

00;15;34;18 - 00;15;56;21

Samuel Bettwy

And he ended up sort of confronting Daniel about his having changed his story. But that isn't going to help much because he's trying to get a confession. By the way, I felt that that scene was sort of a foreshadowing of the fact that Daniel was going to do what he needed to do to save his mother. We sort of infer that he's lying now to the investigating magistrate about where he was.

00;15;56;23 - 00;16;26;16

Frederick Davis

Sam appropriately mentioned this confrontation, which the French love. Many criminal cases have an identified victim who becomes a party to the criminal matter. In a way, that's not the case in our country. Among other things, even if the prosecutor does not want to bring a case at all, a victim can force a case to be brought. And they are parties at a trial, including the ability to cross-examine and participate in the trial so that there are confrontations where the victims literally are face to face with the person that they're accusing.

00;16;26;16 - 00;16;44;04

Frederick Davis

And there's one very well known case about a rape situation where you see a confrontation with the victims of the rape, are confronting the accused. And again, you know, my American hair is kind of curls this because it gets totally and they start yelling at each other and this other movie, and it just seems like something we could never do.

00;16;44;04 - 00;16;45;15

Frederick Davis

But the French love it.

00;16;45;17 - 00;16;54;29

Samuel Bettwy

Since you brought up victims counsel, did you find it unusual that there was no victims council appointed or depicted at all in this film?

00;16;55;01 - 00;17;18;21

Frederick Davis

Well, the only victim would be the son. And I don't know if there are circumstances like that. What I'm surmising is that they viewed the son purely as a witness. And even to qualify him as a victim, they couldn't do that without either his consent or because he's 11 years old. You know, someone acting on his behalf saying as an advisor ad litem, I am taking the position.

00;17;18;21 - 00;17;24;27

Frederick Davis

But that would mean he's taking sides. He's accusing his mother. And I can see how that wasn't going to happen here.

00;17;25;00 - 00;17;35;18

Samuel Bettwy

I'm reminded of the last film we discussed, corded, but there was a victim's counsel who was representing the wife. The mother of the dead child is, of course, she's an adult. She was an adult. Okay. Interesting point.

00;17;35;20 - 00;17;55;15

Frederick Davis

I've been involved in some criminal cases in France and often, and the victims counsel are more active and more effective than the prosecutors. Maybe they're just better lawyers, but they also have an incentive because they end up getting compensated, not through a civil matter, but out of the criminal matter, so that they're really active. And as you point out, Sam, there was no victims.

00;17;55;17 - 00;17;59;12

Frederick Davis

There's no party, which the French version of a victim, a participant.

00;17;59;15 - 00;18;09;00

Samuel Bettwy

Right. And I was just the reason I were thinking about that is that if the director Trier was trying to create chaos in the courtroom, that would have added to it.

00;18;09;03 - 00;18;24;09

Jonathan Hafetz

That's interesting. I think it would have in this film, as you said, raises a series of other questions. Given Daniels status as a witness, as a juvenile, I mentioned court it. I'm glad you brought that up. The film we covered last time you're on the podcast, where that was much clearer, where you have the dead child and much more suitable for victims counsel.

00;18;24;09 - 00;18;50;05

Jonathan Hafetz

Interesting about your remarks is it seems like, you know, you had this French system. It's in theory, the inquisitorial system, as opposed to the adversarial system, where the quest is for the search for truth did feel a little bit of a hybrid, where although it was still within the French system, it did have elements of the U.S. and a common law adversarial system in terms of the more passive, maybe role of the investigating magistrate and the more aggressive role of the prosecutor at trial, which we'll talk about after.

00;18;50;07 - 00;19;13;05

Frederick Davis

Well, I don't think we really know what the investigating magistrate did, whether he was, you know, passive aggressive. What would happen is that the investigating magistrate would do an investigation when he reaches a point where he thinks he's completed everything. He would then reach out to the person who's been told they're a target, namely the wife and the prosecutor and any victims, if they've been identified, which were in this case, and basically saying, should I prosecute or not?

00;19;13;12 - 00;19;33;14

Frederick Davis

And then the prosecutor usually says, yes. And then the defense counsel may say no, but they may be a bit more strategic about it. And then the magistrate then race an opinion called an ordinary, a strong voir, which the judge at trial has, saying, I find this evidence to be sufficient to convict you. Now ask yourself, where are we in terms of the presumption of innocence?

00;19;33;20 - 00;19;52;19

Frederick Davis

And at a French trial? In some important senses, the presumption of innocence has been sort of stretched out during what we might think of as a grand jury investigation. The grand jury is this investigating magistrate who is not working for the prosecutor. He or she is equally available to the defense. So both of them can say, here's what you should look into.

00;19;52;21 - 00;20;08;20

Frederick Davis

So when you get to the trial, the notion is, okay, now we've made sort of a tentative conclusion or someone's made a tentative conclusion. Is it backed up by the evidence so that it then becomes adversarial? And we saw here, you know, and Sam's got 20 or 100 different French films where you see people pretty actively involved.

00;20;08;20 - 00;20;16;10

Frederick Davis

You can have some real back and forth. But the notion of the inquisitorial is that the neutral person, the magistrate, looks into what happened.

00;20;16;12 - 00;20;42;22

Samuel Bettwy

This brings up the point that, well, Fred, explain what a dossier is and how that's prepared by the investigating magistrate. And it's available to both parties. We never saw a dossier in this case. And normally the presiding judge would call up witnesses and have them affirm information that's in the dossier. Maybe, have some questions about what their statements in the dossier and then allow, you know, allow the other counsel to ask questions.

00;20;42;22 - 00;20;47;05

Samuel Bettwy

But there was no dossier. You never saw the presiding judge working from a dossier.

00;20;47;05 - 00;21;08;13

Frederick Davis

Well, there would have been one. We didn't see it. I mean, the important point stands, Mickey, as the investigating magistrate pulls everything together. And many of them, by the way, are really good. I mean, they're very expert at interviewing people. They take really good notes. And so the dossier in cases that I have involved in would be a compact disc with, you know, hundreds and hundreds of documents really well organized from American perspective.

00;21;08;19 - 00;21;29;14

Frederick Davis

That is the baseline record for the trial. So you have no back and forth about admissibility and no motions and limit a and no, you know, keep this out. It's all there. Right. And so the first day of trial, particularly if it's a non-jury now here we have a jury, which is different, but particularly in a non-jury case, the judge will say, look, we all know what the record is.

00;21;29;14 - 00;21;45;10

Frederick Davis

I want to hear these witnesses because I think only A, B and C issues are an issue. And then you might disagree, but you're sort of working off of a lot of work that's already been done. Now here you have a jury trial, but there's still has been an inquisitor and a neutral who's looked into it and has come to a tentative conclusion.

00;21;45;13 - 00;22;01;23

Jonathan Hafetz

And I think maybe one reason from a dramatic perspective of a shorter period of time or less attention on the investigation, is Trey wants to get to the trial. We have a couple of scenes, and then I think it's a year later and we're at trial. Right. And then you have these great scenes which continue over the trial continues over several days.

00;22;01;28 - 00;22;10;24

Jonathan Hafetz

So just to step back, can you kind of identify the key participants and their role of trial in the film and in the French system?

00;22;10;26 - 00;22;42;22

Samuel Bettwy

It's pretty clear that Tria is depicting that the defense counsel and the prosecutor are the main players in a trial, or at least in this trial. So, as I said, really sort of cut out or didn't show us what a presiding judge would normally do. We didn't see any character examination of Sandra, which would not have served Maria's purposes, because she's trying to kind of keep us in suspense or in the dark a little bit about who she is, or wait to hear more about who she is through her own testimony and through cross-examination.

00;22;42;22 - 00;23;00;27

Samuel Bettwy

So. So she cut that out. You don't ever hear a juror ask a question and let me just back up. We see a panel. It's looks authentic to me. We see six jurors looked like there were two alternate jurors sitting behind them. And there were two associate judges and a presiding judge were called the president of the court.

00;23;00;29 - 00;23;18;08

Samuel Bettwy

And it was a female the president, we rarely heard from her, and we never heard from the associate judges, which is not that unusual in a French film. And we never heard from a juror. But I'd say many films do show a juror asking a question or two, which they're allowed to do. They just seemed like a backdrop to me.

00;23;18;08 - 00;23;39;25

Samuel Bettwy

They just seemed like props. They were a backdrop to the defense counsel and the prosecutor. I think that's what would be confusing to especially French viewers, is that they seem to be controlling what was going on in the courtroom, whereas really the presiding judge would be saying, who should we call as a witness? And then starting off with the witness and then opening it up to defense counsel and prosecutor.

00;23;39;25 - 00;24;02;10

Samuel Bettwy

And then, as we see in many French films, they usually don't have that many questions. They seem to be saving it all for their closing arguments. You know, that's what they're really good at is making speeches and their closing arguments. So we didn't see those. So really it was just focused on sort of amplifying and maybe distorting a little bit, but making them sort of the antagonist and the protagonist in the story, the two of them.

00;24;02;12 - 00;24;18;06

Frederick Davis

If you look at the courtroom layout, if you take the scenes of which there are many, where the camera was looking up at the bench right in front of us, we would see up high the presiding judge a woman's dark hair, and then on either side of her are secondary judges, who sometimes have a slightly lower status in the judiciary.

00;24;18;08 - 00;24;39;17

Frederick Davis

And then either side of them were the jurors. And one fundamental difference between France and other countries in Europe or the United States is that they certainly in France and many other countries, they have what's called a mixed jury, so that you have three judges and in this kind of case, six jurors, they will all deliberate together. And that is now viewed as a norm in Europe.

00;24;39;17 - 00;25;01;01

Frederick Davis

There's a 2010 decision from the European Court of Human Rights saying that if a jury deliberates and simply comes out saying guilty or not guilty, that does not protect the interests of the defendant because we don't know what they decided, they could have decided something wrong, right? So that there's a requirement in Europe now that the verdict be explained, namely, what did they find?

00;25;01;06 - 00;25;20;12

Frederick Davis

And that pretty much means that you have to have a judge in there. It also eliminates the charge to the jury. The instructions to the jury. And to my mind, that's pretty rational. You know, you have a judge who goes in there and say, look, we just heard the testimony. Now, to find murder, you have to find A, B and C elements and explains that he can answer jurors questions in real time.

00;25;20;15 - 00;25;39;27

Frederick Davis

So those are the judges. And the jurors on our left was up high. Was the prosecutor where he sat? The French have a phrase, the carpenters mistake for the men year, in the sense that that person is on the same physical level as the judge and the jurors. Right. And I think it's quite wonderful to see judge and jurors together.

00;25;39;27 - 00;25;58;22

Frederick Davis

I mean, it makes a Democratic statement, but people don't get too excited about having the prosecutor up there high when the defense is down low and people get grumpy on that. And then on our right was the accused. And in front of her, and they usually not the same table is her counsel. And then there's a lectern in the middle.

00;25;58;25 - 00;26;02;04

Frederick Davis

And that's where the witnesses stand when they're being questioned.

00;26;02;06 - 00;26;39;00

Samuel Bettwy

The lectern is facing the judges, and also because they're the ones who asked the questions, whereas in the United States and in Commonwealth countries, the witness stand is up next to the judge facing the lawyers because they're the ones that asked the questions. But it didn't play out that way. The, witnesses who were at the bar, or if they call the stand, the bars, they were being attacked from the flanks by the attorneys and having to answer to them side to side, which also added to the chaos and the camerawork of the director, having the camera going back and forth as if it's like a tennis match or a ping pong match.

00;26;39;02 - 00;27;00;26

Jonathan Hafetz

The trial seemed, I think to some viewers, probably informal. Use the word Sam patriotic. Sometimes a free for all with both sides jumping in prosecution. Defense. The question a witness you have the prosecutor played by Antoine Renard, challenging when he was questioning Daniel the first time Daniel testified probing Daniel's memory defense kept interrupting and then the prosecutor defense start arguing with each other.

00;27;00;28 - 00;27;28;01

Jonathan Hafetz

There's another moment where, during the defense's cross-examination of the prosecution's forensic expert, the prosecution keeps interrupting and then I think, kind of most dramatically, during the cross-examination of Samuel, a psychiatrist who testified he believes Samuel didn't commit suicide, the defense attorney, Vincent Renzi, switches back and forth between questions to the psychiatrist and to Sandra. Sandra. Then she's going to respond in English because she says, it's too complicated to do so in French.

00;27;28;03 - 00;27;49;05

Jonathan Hafetz

The psychiatrist starts arguing with Sandra in French, and they go back and forth with each other, disputing who is at fault. Then the defense and psychiatrist start arguing with each other about the nature of the problems and Sandra Samuel's marriage. Sandra interrupts, starts questioning, criticizing the prosecution, and the prosecutor starts questioning Sandra, then about whether she resented Samuel for the accident when Daniel was younger.

00;27;49;05 - 00;27;50;20

Jonathan Hafetz

That impaired his vision.

00;27;50;22 - 00;28;15;14

Anatomy of a Fall Dialogue

I'm sorry to interrupt. I'm sorry, but I don't know. You. You you come here, okay? With your maybe your opinion and you tell me who Samuel was and what we were going through. What you say is just, it is just a little part of the whole situation. I mean, sometimes sometimes a couple is kind of the case, and everybody's lost.

00;28;15;17 - 00;28;38;19

Anatomy of a Fall Dialogue

Well, then sometimes we fight together, and sometimes we fight alone, and sometimes we. We fight against each other. That happens. And I think it's possible that Samuel needed to see things the way he described them. But if I'd been seeing a therapist, he could stand here too, and say very ugly things about Samuel. But would those things be true?

00;28;38;21 - 00;29;05;14

Jonathan Hafetz

So this whole idea of chaos, I think going to the director, Justine, was somewhat deliberate. I mean, she used the word chaos to describe the situation, and the couple, other reviews have you similar terms? Your times reference to dizzying whiplash. A French review talked about a tangle of sense and nonsense. So I'd love for you both to comment on these, you know, these scenes in the film and especially the back and forth and the seeming chaos, I think, struck a lot of viewers.

00;29;05;17 - 00;29;22;07

Frederick Davis

Well, to me, there's two things that are a little bit different. One is really important and is classically French, and that is here. They are calling on the accused during the trial. That's just unheard of in the United States. And, you know, as we all know, you have a criminal case in the United States, and the government puts on its case, right?

00;29;22;09 - 00;29;43;10

Frederick Davis

And cannot call the accused, cannot it just can't happen, nor can you ever, in American case, turn to the accused, say, did you do it or what happened? Right. That's happens in France. You theoretically have a right to silence, but the adverse inference is so strong, nearly conclusive, that as a practical matter, you don't. So I've been at trials in France where they won.

00;29;43;10 - 00;30;14;05

Frederick Davis

The judge said, look, I have all this evidence. Mr. accuse miss accused. What's your story? This is the first thing that happens at a trial, which is kind of inconceivable. So that was not terribly unusual that during the testimony in context, they then turn to the accused and say, what do you say? Right. What was unusual? And I did some research looking at how French commentators view the the degree of sort of back and forth, as you used the word chaos, where, you know, among other things, that the professor got down first table is marching around the the courtroom and is being very aggressive.

00;30;14;12 - 00;30;33;18

Frederick Davis

That was highly unusual. And I think Trier was not trying to make a comment about French justice so much as using French justice as she portrayed it as a metaphor for the, the couple, you know, the chaos in their life is kind of reflected or enhanced or appeared in this somewhat unusual chaos in the courtroom.

00;30;33;20 - 00;30;53;11

Samuel Bettwy

I agree, I came to the same conclusion. I felt that this chaos was just something that the director wanted to do in describing a relationship, and she just used the trial as a vehicle for doing that, and stretched the limits on what might be done in a courtroom. And cherry picked what she wanted to show from the trial.

00;30;53;15 - 00;31;14;20

Samuel Bettwy

But yeah, I think that as far as a legal theme, that's what I try to find in these films, even if the director wasn't consciously trying to make that theme. But I think she was here. That was doubt, and I thought that that theme was supported well by everything that she did. I the chaos to me was just something else she was using as a device to tell a different story.

00;31;14;20 - 00;31;35;25

Samuel Bettwy

But as far as a legal story, I thought everything she did was really good on this theme of doubt. So all of this chaos is going on, and so there are a lot of objections being made by the defense counsel because they trying to stop or get some kind of control. Surprisingly, the presiding judge, the president's doing nothing to control any of this.

00;31;35;28 - 00;32;00;04

Samuel Bettwy

And that's kind of surprised me. Again, she was more just acting like an American judge. I think an American judge would not have allowed any of this to go away. So I thought that was, you know, again, that was just the director showing the presiding judge to be pretty much passive and not doing much to control things. So it was really defense counsel who was having to make objections to try to control the prosecutor who was commenting on the evidence.

00;32;00;06 - 00;32;23;02

Samuel Bettwy

I wrote down here. One of the reviews said the prosecutor, a shaven headed smoker who roams around the courtroom snapping and snarling, and that was pretty good description, just getting away with saying these kinds of things, snide remarks and so on. I thought what was believable. I guess I'm shifting for a moment here about evidence and what's being allowed and the objections.

00;32;23;02 - 00;32;47;04

Samuel Bettwy

I felt that almost all of them were about the form of the question, which seems appropriate in a civil law system, because it's not trying to keep substance out, it's just trying to make sure that the question is asked appropriately in order to get a reliable answer. So it was an objection as to leading question, which I don't think it was an appropriate objection because it was the prosecutor asking a question of, hostile witness.

00;32;47;04 - 00;33;07;15

Samuel Bettwy

I don't know if that same rule applies in France, but that was a strange objection. But still, it was an objection as to form. There was an objection. At one point, the defense counsel said, oh, she already answered that or something like that, which is sort of been asked and answered or cumulative objection. And, there was only one objection that seemed to deal with substance when.

00;33;07;18 - 00;33;31;06

Samuel Bettwy

Well, two one was when the prosecutor was going through her book and cherry picking from her book. And the, defense counsel said, well, we need the context, which to me is invoking the rule of completeness, which would be federal rule 106, where the opposing counsel can ask that other context, you know, the context can be read contemporaneously with the cherry picked passage.

00;33;31;08 - 00;33;48;20

Samuel Bettwy

So that was basically saying, let's have more substance than this. And so it's not trying to keep any substance out. It's just saying let's have the complete substance. So that's a good objection for the purposes of finding the truth, let's hear everything not just as cherry picked passage, but then there was also, an objection as to relevance.

00;33;48;20 - 00;34;05;23

Samuel Bettwy

And that's the only one. Curiously, that's the only one that the presiding judge paid attention to and admonished the prosecutor to stick to the facts. So she sort of agreed that he was getting into irrelevant territory. But that's not necessarily something that a judge would rule on.

00;34;05;26 - 00;34;22;28

Frederick Davis

Well, an important point to make is that we in the United States together to some degree with the English, but really we're currently in a class by ourselves. We have prescriptive rules of evidence, right. And all of us took courses on evidence. You know, we have the federal rule of evidence. There's a rule on hearsay, and there's 27 exceptions.

00;34;23;00 - 00;34;38;10

Frederick Davis

And that's, you know, that's the battleground on which criminal cases are fought. Namely, I want to keep your evidence out and you want to keep my evidence at the French. You have no prescriptive rules of evidence. They have what's called in French, liberté libre, free proof. And the notion is, look, I'm a judge, you know, let's hear it.

00;34;38;10 - 00;34;57;13

Frederick Davis

And, you know, let's see whether you know. And so the objections are really more argument than objections. They're not literally trying to keep something out. They're just trying to argue. Look, judge, this is not important. Right? Let me tell you a real quick anecdote very quickly. Many years ago, before I moved there, I was in France with my wife and we wanted to see a trial.

00;34;57;13 - 00;35;13;03

Frederick Davis

So we watched the criminal trial and, and then met with the judge for an hour or two after. And we're speaking in French. And at one point she said, you know, it's really not too much doubt about this guy's guilt, because we have a judgment of conviction from three years previously. Right? So being an American lawyer, I sort of knew the law on this.

00;35;13;03 - 00;35;28;20

Frederick Davis

And I wanted to ask her, did anybody make a motion to suppress to keep the prior conviction out? Right. And what I didn't know, and it took me ten years to figure out, is, first, from the French perspective, what is more relevant than if he's convicted the same thing before? I mean, they think that's the first thing you want to know.

00;35;28;22 - 00;35;46;29

Frederick Davis

Second, they just don't have the notion of keeping evidence out, namely, you know, I'll hear it. Maybe I give it more weight or less weight. And the final issue, it is I my French was pretty good, but I used the word supreme, which has the same Latin root as suppress. Right. So I said, did they make a motion of supreme?

00;35;47;04 - 00;36;09;09

Frederick Davis

Not knowing that in real world that means kind of putting it under the carpet, sweeping it away. Right. So the judge's reaction was, Monsieur, we do not suppress evidence in our country. We use evidence in our country, but they have this liberty of namely, you know, we'll just take all the evidence and give whatever weight so that these objections, I think we're really more argument than what we would think of as an objection.

00;36;09;11 - 00;36;33;26

Jonathan Hafetz

And there are moments in the film where the judge just sort of chastises each side for making closing argument. You know, we mentioned chorded before. The French courtroom drama is a really good example. I think, kind of a contrast and the range of ways French criminal trials are portrayed, a real contrast in terms of seeing an active presiding judge and how that's different, and maybe a more typical way that a trial would go.

00;36;33;26 - 00;36;38;14

Jonathan Hafetz

Or you have a judge who's more active in terms of controlling the courtroom and directing the questioning.

00;36;38;20 - 00;36;58;04

Samuel Bettwy

There is one scene where I would make a clip for my class. I'd say, here's how the presiding judge acts. You know, in the French system is at the end when she decides that she wants the boy to testify, and then she directs that he's going to testify. Neither the prosecutor nor the defense counsel want him testifying, because they don't know what he's going to say.

00;36;58;10 - 00;37;15;21

Samuel Bettwy

She's the one that decides that's more French. And she does begin with the questions with him. And then he says what he's going to say. And then there's no follow up because the prosecutor just says, well, remember, what he's saying is subjective. And he sits down that scene, more French, that whole the whole scene.

00;37;15;23 - 00;37;34;29

Frederick Davis

That's kind of classically French. I mean, there's been an evolution even in the 20 or so years I've been involved over there, classically. It used to be that the judge would essentially run all the questioning and basically would say at the first day of trial, here's what it seems to me, judge, to be established by the record, namely this dossier, what do we really need to talk about?

00;37;34;29 - 00;38;00;20

Frederick Davis

And then the judge would then call the witnesses to the extent that French defense lawyers classically didn't do much cross-examination. And when I started teaching trial advocacy at the Rwanda tribunal, a quarter of the prosecutors, there were French speakers. I had to go to Montreal to find French speakers, and I had a cross-examine. Now that's changed. A friend of mine, a good, really good lawyer, wrote a book in French and how to cross-examine.

00;38;00;20 - 00;38;19;13

Frederick Davis

But it's ten years old. I mean, you know, and they're now becoming more and more visibly adversarial. And Sam knows a number of movies that show that I particularly love, a series that's called An English Spiral. It was a seven year series that shows a whole bunch of, you know, classic trial lawyers and defense lawyers. So it is evolving.

00;38;19;13 - 00;38;23;01

Frederick Davis

And I used to be judge led, and now it's more prosecutor and defense led.

00;38;23;03 - 00;38;37;18

Samuel Bettwy

And recalling the movie courted that we talked about last time. That was a pivotal scene in that film where the defense counsel cross-examined the police investigator and tore apart the, statement that so-called confession that had been given.

00;38;37;18 - 00;38;39;07

Frederick Davis

Yeah, it could cross.

00;38;39;10 - 00;38;59;12

Jonathan Hafetz

I want to talk about Daniel's testimony. You reference Sam, and so pivotal. Before we do, let me just ask one lead up to that, which is the film's treatment of Daniel more generally and what it says about how France treats juveniles. I mean, it's complicated. He's an 11 year old child. He's both an important witness as well as the son of the accused.

00;38;59;14 - 00;39;17;05

Jonathan Hafetz

And so there's a monitor, a court monitor that's appointed, named March Burger, played by Jenny Beth. And the courtroom appears to be closed during Daniel's testimony to the public. So just to get your sense of how, you know, the French system treats juveniles in proceedings, anything that struck you about that, and then we could talk about that last testimony.

00;39;17;07 - 00;39;48;11

Frederick Davis

Well, the French are very proud of how they treat juveniles generally, and I think in fact, they're much more enlightened than we are. I mean, until the Supreme Court decided Alabama versus Miller, you could have a situation where relative juveniles could be convicted to life in prison without parole. I mean, we should just horrifying to me. I once had to defend a documentary about a juvenile proceeding in Florida, where the 14 year old was convicted as an adult and a Frenchman made a documentary about it, which is pretty horrifying.

00;39;48;16 - 00;40;14;27

Frederick Davis

So they treat their juveniles well. And I think the way the young boy here was treated, you know, he had a guardian who I thought was relatively attractive character in the movie. She cared about the kid and, you know, tried to work with him. And then the issue of, you know, whether he should testify or not, I think they would view it as what's the impact on him and what's the impact on justice and ultimately the justice part one out where I think we think because we don't really see it.

00;40;14;27 - 00;40;31;17

Frederick Davis

The judge decided we should hear this is just bears on what happened. So, you know, we're going to clear the courtroom. We're going to be very respectful to the little boy and then we hear this testimony which apparently turns the trial around. But that was, I think, a judge and I think a perfectly well-meaning way of saying, look, I want to hear it.

00;40;31;24 - 00;40;33;28

Frederick Davis

It bears on, but we have to sign.

00;40;34;00 - 00;40;51;25

Samuel Bettwy

You know, you just made me think of something that might be noteworthy. There was no exclusion of witnesses in the United States. We would invoke the rule, right? We would say that nobody who is going to testify should be there, hearing the other witnesses first. And of course, the boy was there and heard everything. All of the testimony.

00;40;51;28 - 00;41;15;01

Samuel Bettwy

And meanwhile he's thinking, well, how can I fix everything? He had an opportunity to witness. So he's pretty intelligent kid. What he could say in testimony. And nobody knew he was cooking this up. Defense counsel didn't help cook it up. He just did it on his own. Maybe there's a comment here about not having or reason for having the role of excluding witnesses.

00;41;15;03 - 00;41;32;09

Frederick Davis

I've never been in a situation where a future witness is going to be excluded here. You'll recall at one point the judge said to the kid, I don't want you to be here tomorrow. It's upsetting. And the kid, very articulate, pushed back and said, look, this is my mom you're talking about. I should be here. I found all of that, you know, kind of appropriate and commonsensical.

00;41;32;09 - 00;41;43;15

Frederick Davis

Let me hear. The judge is trying to balance, you know, here's this 1112 year old boy whose mother is on trial for killing his dad. And you know what I'm going to do? And ultimately ended up treating him as an important witness.

00;41;43;17 - 00;41;54;15

Samuel Bettwy

And by the way, in that scene, I thought it was interesting that she said, well, it's not about your hearing things. It's about finding the truth. I thought, oh, there's that's an interesting theory. Nobody said that yet in this film.

00;41;54;17 - 00;42;15;00

Jonathan Hafetz

So just step back to that scene before he testifies. I think is probably the most pivotal. Among those pivotal moments where Daniel's talking to the court monitor, Marsh, and he's not sure at this point what to believe. Right. Daniels has kind of heard these conflicting accounts. He I think had, seems like a closer relationship with his father before, but in any event, just doesn't know.

00;42;15;00 - 00;42;32;26

Jonathan Hafetz

And learning a lot of what's happening, he hears the recording of the fight that they had just the day before his father fell from the window. This really very heated argument that they had the audio recording off. So he hears that and all these issues from the marriage are aired and resentments and all kinds of things. Very powerful scene.

00;42;33;02 - 00;42;49;04

Jonathan Hafetz

And so he doesn't know what to believe. So he's preparing to testify for the second time. There's a sense that this is going to be dispositive. And he asked Marsh what to do, and Marsh tells him, well, when you're missing an element to judge something, this is what you can do. Just know what to say. You can't tell him that.

00;42;49;04 - 00;43;06;11

Jonathan Hafetz

Of course, she says. All you can do is decide. That is to judge in the absence of certainty, to overcome doubt, to sway one way rather than the other. And she says, since you need to believe one thing but have two choices, you need to choose. So Daniel responds, does that mean that I have to invent my belief?

00;43;06;11 - 00;43;30;22

Jonathan Hafetz

And isn't that just pretending? And Marsh says, no, it's not pretending, it's deciding. And so Daniel does choose, right? And he testifies the next day about a conversation he recalls between his father and him when they were driving his beloved dog. Snoop was amazing character, to the vet, and Daniel's father spoke to him about the need to be prepared that those he loves will die, and to know that life is life will go on.

00;43;30;27 - 00;43;45;00

Jonathan Hafetz

And so Daniel now sees this or decides to see this, Samuel's own suicidal thoughts and essentially testifies to that effect. So I love to hear thoughts on this testimony and about the film's overarching message.

00;43;45;02 - 00;44;04;14

Samuel Bettwy

I think it fits perfectly with what we saw at the beginning, where Vincent is saying, well, here are three different ways of winning, and let's pick the one that's going to sell the most. And it's a pretty, cynical view of what truth is. And that's what the filmmaker is telling us. That's a message. So she's saying everything.

00;44;04;14 - 00;44;24;20

Samuel Bettwy

And yeah, you I think you really pinpointed a really important, pivotal part of that conversation where she's basically stating the, theme and the moral. This reminds me of a conversation I had with a defense counsel. And, Fred, you'll know what office that was. I was talking to a friend from Federal Defenders, and we were talking about the truth.

00;44;24;26 - 00;44;43;28

Samuel Bettwy

This was years ago. And he said, well, what is the truth, anyway? I mean, the truth is really just what's possible. What could have happened, I mean, if it could have happened. And it's a truth. And so that's simply that's not what's going on here, is that okay. Pick a side okay. There's doubt. There's doubt. But which side you want to be on.

00;44;44;05 - 00;44;49;04

Samuel Bettwy

Whatever you decide you decide to be on, it's going to be the winning side because you're going to break the tie.

00;44;49;07 - 00;45;15;04

Frederick Davis

Look it's it. Remember we're talking about a movie here and we don't go to movies to see documentaries about legal issues. We will see, movies about human beings that we can relate to and that we learn from. And, you know, the scene where this 11 year old boy or 12 year old boy tells the judge what happened, where he basically supports in an odd way, but, you know, interesting way, the notion that his dad really might have been suicidal, that was great drama.

00;45;15;05 - 00;45;29;25

Frederick Davis

I mean, that's great acting by a kid actor. And they had to set it up somehow. And, you know, the dialog with the Guardian march that you talk about. Jonathan, it was really interesting. And I don't I really don't know what to make about it. I think he was not coaching on what to say, which is good. We all agree.

00;45;29;27 - 00;45;48;05

Frederick Davis

I think he's basically saying, in essence, you know, either this happened the way you interpreting it, namely he was reflecting a possibility of suicide or it wasn't. An implicit in that is that if you don't know, then there's nothing to say to try. All right? I mean, you can't go to the court and say, I don't know. So she's basically saying he did it happen or not, I think.

00;45;48;13 - 00;45;53;20

Frederick Davis

And the kid ultimately apparently felt comfortable saying, this is what happened. I'm going to tell the judge.

00;45;53;23 - 00;46;11;27

Jonathan Hafetz

The prosecutor objects right after the fact that this was speculative. And the reason that you both kind of commented on the judge says, I'm going to hear it anyway. The way the film ends, you know, she's acquitted and she goes home. Sanders goes on to Daniel, and they sort of have this nice scene together where they're going to have to navigate the future.

00;46;11;28 - 00;46;16;12

Jonathan Hafetz

The two of them. The prosecution could have appealed. Right. The acquittal in the French system, right.

00;46;16;14 - 00;46;36;01

Frederick Davis

Well, he made a statement in French. She said he doesn't want which is this close to saying this is inadmissible, except they don't have a concept of admissibility. And he basically was trying to get rid of this testimony given zero weight. So he said it's speculative, it's subjective, and it's not real evidence. But it came in. But I think he made an important point.

00;46;36;01 - 00;46;58;25

Frederick Davis

Jonathan, any acquittal in a French trial court, by and large, can be appealed by the prosecutor. And in a jury trial case, he gives appeal to plead or not an appellate jury. So they'll be another a jury with three more jurors. I think there are six jurors plus alternates here. You'd go up, there would be three judges and nine jurors, and it's not like you'd try the whole case over again, but you sort of do.

00;46;58;28 - 00;47;11;12

Frederick Davis

But the prosecutor can say the first people got it wrong. He now knows about this kids. It's not a surprise anymore. He can be better prepared and deal with it one way or another. So, you know, in a real live world this would not be over.

00;47;11;14 - 00;47;33;03

Jonathan Hafetz

So we can have anatomy of an appeal will be the, yeah. I'm trying to think about some influence on the film and on the director and writer and writers. You know, I think the title is taken from Anatomy of a murder, right, with the 1959 classic courtroom drama directed by Otto Preminger, which I think was about questioning the premise of trials that search for the truth.

00;47;33;09 - 00;47;53;26

Jonathan Hafetz

It's also, I think, the classic rock classic Reasonable Doubt movie from the American perspective. That's one possibility. Just in today's also said herself she had an obsession with staging a person being tried in a foreign land. And there's a lot made a little bit inside court, especially outside of court, about how Sandra is German. Samuel is French, an English was their language.

00;47;54;02 - 00;48;11;12

Jonathan Hafetz

Sander describes it in one of the scenes. It's like a middle ground for them. She also said she was obsessed, just. And she said she was obsessed with Amanda Knox and other examples that were in the news. Women who tried to get away from home and have other things that come into play in the tribunal. So thoughts on possible influences or comparisons?

00;48;11;15 - 00;48;28;29

Frederick Davis

I haven't seen anatomy of Murder for a while. I do get a chance to watch again my dim recollection of that James Stewart play, sort of a heroic defense counsel, and that there's a genre of American movies. I mean, To Kill a mockingbird is one of the best known, where the defense counsel saves the day or tries to at least there probably are parallels.

00;48;29;04 - 00;48;48;24

Frederick Davis

One thing that's interesting is whether the fact that the character is German was supposed to be terribly relevant, and I didn't really get that sense. I didn't get the sense that the character thought she was discriminated against, or that we're supposed to think that she was discriminated against because she wasn't French. And I didn't see anything of that in the movie.

00;48;48;24 - 00;49;10;03

Frederick Davis

I thought that they allowed her to speak. It's actually an important element of the European Convention on Human Rights that you, only be tried in a language you understand. And she more than once said, I speak French for not well, so let me speak in English. And they accommodate her on that. But I don't know whether Sam or Jonathan, whether you took away from it the notion that the fact of her German ness was really all that important.

00;49;10;10 - 00;49;24;08

Frederick Davis

I thought it was important to the couple's relationship because they talked about, you know, we don't even speak our own languages. We speak this English is a common language. So I thought that was very, very important. But I didn't get a sense that the foreign ness was really an element in the trial.

00;49;24;11 - 00;49;44;29

Samuel Bettwy

No, I didn't, I know I read the interviews that create did and she was trying to use it. She thought that use of language and misunderstandings due to language and conflicting language were somehow something she wanted to use to get her theme across, but it really didn't resonate with me. And I, you know, I didn't see anything remarkable about that.

00;49;45;01 - 00;50;02;19

Jonathan Hafetz

I agree with you completely that in the relationship between her and Samuel, right. The idea that she had been brought to his country and the ski chalet outside of Grenoble, somewhere in the sticks, as much as you can have that in France was, you know, a big issue in terms of the resentment and that sort of balance of power and issues in the couple.

00;50;02;19 - 00;50;20;13

Jonathan Hafetz

But in the trial, I just didn't it didn't come across, first of all. Then Julia speaks French. I'm not a good enough judge to know how good her French was. She speaks well. She decided to switch into English for certain moments where she really wanted to articulate herself better, but she understood everything and she spoke. So I think if the director wanted to make foreign this a point in the trial more, I think, to make a stronger choice.

00;50;20;13 - 00;50;22;01

Jonathan Hafetz

Someone who really didn't speak French at all.

00;50;22;04 - 00;50;28;06

Frederick Davis

You know, she speaks French. For a bit of the trial struck me as having quite good accent that she seemed to be good. Very well.

00;50;28;08 - 00;50;37;03

Jonathan Hafetz

So, Sam, Fred, anything else that struck you from a comparative perspective or a lens into French criminal justice from the film?

00;50;37;05 - 00;50;57;03

Frederick Davis

Well, there's the issue of expert testimony, and there's a lot of it that we saw some of, namely the splattering of the blood and, you know, analysis of whether this could have been merely a fault or whether he was hit by a blunt instrument before. And the French traditionally have had a view of experts that is antithetical to the notion of the battle of experts.

00;50;57;06 - 00;51;17;02

Frederick Davis

The way we have their view is that, look, if two people have different expert opinions, one of them is wrong. And my role as the judge is to pick which one is right. And then we'll hear that person. And the problem with that is that, you know, it's just not that simple. And I had a big case the tried in France where we ended up winning on an issue of causation, a criminal case.

00;51;17;04 - 00;51;35;17

Frederick Davis

But at the trial the prosecutor took the position. Here is a state authorized expert, a person who's told he is an expert by the state. Your person you're paying him so he can't be an expert. And so they took the position that we couldn't input what you and I would think of as expert proof on. And we end up getting that.

00;51;35;19 - 00;51;55;13

Frederick Davis

Yeah, we had an appeal where the way that ended up being differently and that is changing in France. But the notion of expert testimony, they give a lot of emphasis to that. But they tend to think experts are the people who went to the right schools and had the right credentials, and they don't really have a Delbert test where a judge can make this kind of determination.

00;51;55;16 - 00;52;21;12

Samuel Bettwy

I just would note that the prosecutor seemed pretty unprepared on cross-examining the expert defense counsel put up, and she did a pretty convincing job. I mean, they portrayed her as pretty convincing and confident about her opinion. And the prosecutor just did kind of a lame attempt to suggest that even though she thought it was highly improbable that it was a murder, that it's possible, though, isn't it possible?

00;52;21;12 - 00;52;44;02

Samuel Bettwy

And she said something humorous about was possible, like someday I'll be the president of France. And then he did it again after she made a good point. And he said, but possible, right? I thought that was kind of a cheap shot. We see it all the time in our system to where someone will say that to an expert, but it's possible you can't say it's impossible, but that's really contrary to what his burden is.

00;52;44;02 - 00;52;51;10

Samuel Bettwy

Is burden isn't to prove what's possible is supposedly to prove beyond a reasonable doubt what happened.

00;52;51;12 - 00;53;10;26

Frederick Davis

Ultimately, Jonathan, I think this is not a movie about justice, and it's really a movie about the human condition and the relationship between these very well portrayed people, particularly obviously the wife who we see a lot. And I think the trial used the justice system as a metaphor, as a background, as sort of a model to measure against.

00;53;10;26 - 00;53;24;09

Frederick Davis

And that's what the movie's about. I think it shows a lot of things about the French system, much of which the French audience would assume. I mean, they would all know that there has been an investigating magistrate. They would all know that there's no rules of evidence and that there will be an appeal. So it's not about that.

00;53;24;09 - 00;53;37;13

Frederick Davis

That's just kind of part of what we're watching. But I think the core of the movie, any man that I watched the second time to prepare for this, it is. Wow. It's excruciating when that little kid testifies, man, I'm Wolf, got me listening. But it's really about that rather than about the law.

00;53;37;15 - 00;53;59;20

Samuel Bettwy

And I don't think that a French audience would necessarily lose confidence in their system from watching this film. They might be a little jarred by the message that the trial's not about finding the truth. Is that might upset them a little. Otherwise, I don't think that they were pointing to any systemic problem with their justice system.

00;53;59;22 - 00;54;18;13

Jonathan Hafetz

I agree with both of you, and it's helpful just to discuss some baseline norms and presumptions and procedures that Tria is kind of using for the films. I think certain things by a French audience would just be kind of taken for granted or assumed, and then she just dramatizes them or uses them as the basis for her drama.

00;54;18;13 - 00;54;35;13

Jonathan Hafetz

But they seem I think, particularly strange. Or it may seem strange to a U.S. audience. It's certainly a stylized version of a French criminal trial to pursue larger goals. And I think that's true, though, with a lot of American courtroom movies, too, that some of them are directed at the legal system, but some of them are just to explore larger issues.

00;54;35;16 - 00;54;49;18

Jonathan Hafetz

Fred, Sam, it's been great to have you both on again. I love to have you back on Law and Film to talk about this movie, which I think is just a very powerful, gripping drama. And I think your insights really helped bring out a lot of the key themes from the movie.

00;54;49;20 - 00;54;50;26

Frederick Davis

Both real pleasure.

00;54;50;28 - 00;54;55;10

Samuel Bettwy

Thanks very much. It was a lot of fun, and it made me think of things I hadn't thought about when I prepared.