00;00;00;21 - 00;00;36;29

Jonathan Hafetz

Hi, I'm Jonathan Hafetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Films, in turn, tell 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

And what does the film teach us about the law and the larger social and cultural context in which it operates? Our film today is the 1992 comedy My Cousin Vinny. The movie tells the story of two college students from New York, played by Ralph Macchio and Mitchell Whitfield. We're driving through the South when they are mistakenly arrested and charged with the murder of a store clerk in Alabama and face the death penalty.

00;01;03;10 - 00;01;26;19

Jonathan Hafetz

Ironically, the two had thought they were being pulled over initially by the police for mistakenly stealing a can of tuna fish. One of the defendants decides to call his cousin at Vinny, My Cousin Vinny, to get them out of this predicament. It turns out, however, that Vinny is a personal injury lawyer from Brooklyn who is newly admitted to the bar, has virtually no experience, let alone criminal defense experience.

00;01;26;22 - 00;01;51;09

Jonathan Hafetz

But somehow, Vinny, with the help of his savvy fiancée Mona Lisa, Vito, played by Marisa Tomei, manages to turn the tide with a brilliant courtroom performance and have the case dismissed. Vinny, in a subplot himself, also narrowly escaped having lied to the judge about his credentials. The script is by Dale honor, and it was directed by Jonathan Lynn, who studied law at Pembroke College, Cambridge.

00;01;51;12 - 00;02;16;04

Jonathan Hafetz

It stars Joseph Pesci as Gambino and Marisa Tomei, who won a Best Supporting Actor award for her performance. Ralph Macchio and Mitchell Whitfield are the two defendants. Lane Smith plays the prosecutor, and Fred Gwynne is the southern judge who Vinny spars with throughout the film. We're honored to have as our guest today to discuss the classic American comedy about the law and lawyers, Judge Jed S Rakoff.

00;02;16;06 - 00;02;37;25

Jonathan Hafetz

Judge Rakoff has served since March 1996 as a U.S. District Judge for the Southern District of New York. He also frequently sits by designation on the Second and Ninth Circuit Court of Appeals. Judge Rakoff is an adjunct professor at both Columbia Law School and NYU Law School, and a lecturer of law at Berkeley Law School and the University of Virginia Law School.

00;02;37;27 - 00;03;09;26

Jonathan Hafetz

He's written over 200 published articles, 900 speeches, and 2000 judicial opinions. He's the author of Why the Innocent Plead Guilty and the Guilty Go Free and Other Paradoxes of Our Broken Legal System, and he has also coauthored five books. He's a regular contributor to The New York Review of Books as well. After law school, Judge Rakoff clerked for the late Honorable Abraham L Friedman, U.S. Court of Appeals, Third Circuit, and then was an associate at the Debevoise Law Firm from 1973 to 1980.

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Jonathan Hafetz

He served as a Assistant United States Attorney in the U.S. Attorney's Office for the Southern District of New York, the last two years serving as chief of business and securities fraud prosecutions. Thereafter, before going on the bench, he was a partner at two large law firm specializing in white collar criminal defense and civil Rico. The. I've served on the National Commission on Forensic Science and as co-chair of the National Academy of Sciences Committee on Eyewitness Identification.

00;03;37;11 - 00;04;00;10

Jonathan Hafetz

He served on Swarthmore College's Board of Managers and on the Governance board of the McArthur Foundation's Project of Law and Neuroscience. He's assisted the US government in training foreign judges in countries around the world. He's a member of the American Academy of Arts and Sciences and of the American Law Institute. He's also a judicial fellow of the American College of Trial Lawyers and the American Board of Criminal Lawyers.

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Jonathan Hafetz

He was a director of the New York Council of Defense Lawyers. Among his many awards was the Learn and Hand Award from the Federal Bar Council, the Leon Silverman Award from the American College of Trial Lawyers, and the United Nations World Jurist Association Medal of Honor. Judge Rakoff is married to Doctor and Rakoff, a child development specialist. They have three daughters, two grandsons.

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Jonathan Hafetz

And Judge Rakoff and his wife are also expert. Ballroom dancers. Judge Rakoff has officiated at over 81 weddings and is the author of numerous lyrics and humorous poems, several of which have been published in 2014. Judge Rakoff was listed by fortune magazine as one of the world's 50 Greatest Leaders. I should add to this list of incredible accomplishments.

00;04;43;14 - 00;05;00;17

Jonathan Hafetz

I was privileged to serve as Judge Rakoff Law Clerk in 1999 to 2000. As I was married by a rabbi and not Judge Rakoff. I thought, what better way to describe the struggle and to have Judge Rakoff come on my podcast to discuss the great film. My cousin Danny. Welcome, judge.

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Judge Jed S. Rakoff

So, John, it's really a great privilege and a pleasure to be here. And thank you for that overwrought introduction. I'm just glad my wife's not here because she would demand rebuttal time.

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Jonathan Hafetz

Fair enough. It's always nice to give an introduction. So once it's an introduction, then only a mother would give. And I'm proud. Well, that's great to have you discuss this very funny movie. Dealing with a very serious subject, capital punishment. But it is a great comedy. And the film has received wide praise from judges, lawyers and legal scholars for its portrayal of American jury trials.

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Jonathan Hafetz

Is the praise warranted, do you think?

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Judge Jed S. Rakoff

I definitely think it is warranted. It's not only a hilarious movie, but one of the most legally accurate movies that I know. In terms of trial procedures, evidentiary rulings, and the like. My understanding is the credit for that goes to the director, Jonathan Lynn, who, although a Brit went to Cambridge University to receive, law training.

00;06;06;02 - 00;06;33;21

Judge Jed S. Rakoff

And I think, that led him to insist that the trial scenes and the procedural scenes all be consistent with the actual rules of procedure in evidence. And, I think that adds to the movie's effect because, we're so used to these sort of phony movies where the defendant confesses on the stand under cross-examination from Perry Mason or the like, and that doesn't happen in real life.

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Judge Jed S. Rakoff

But everything that happens in My Cousin Vinny could have happened in real life with only a little exaggeration. And I think, greatly adds to its impact.

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Jonathan Hafetz

Yeah, and it's incredible, too, because, one of the reasons, that's given for why movies or television shows aren't so real to life in depicting courtroom experiences is that you would lose some of the dramatic effect. Right? They need to take poetic license, creative license to make it more dramatic. But the films, you know, courtroom sequences are dramatic and funny even as they're true to life.

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Jonathan Hafetz

So that's an important achievement and worth noting.

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Judge Jed S. Rakoff

Yes. I mean, when you come right down to it, comedy is just reality, slightly exaggerated. So, and that's what you get here.

00;07;22;21 - 00;07;53;29

Jonathan Hafetz

In the film. Vincent LaGuardia Gambini, aka my Cousin Vinny, played by Joe Pesci. After something of an awkward start, which includes being held in contempt by the judge, played by Fred Gwynne and spending several nights in jail, effectively cross-examined several prosecution witnesses and turns the case around for his two clients. So let me play a clip of one of these cross-examinations, which involves the great southern delicacy of grits.

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Film Dialogue

Mr. Gambini, your witness.

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Film Dialogue

Mr. Tipton, when you view the defendants walking from their car into the saxophones, what angle was your point of view?

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Film Dialogue

They was kind of walking toward me when they entered the store.

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Film Dialogue

And when they left. What angle was your point of view?

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Film Dialogue

It was kind of going away from me.

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Film Dialogue

So would you say you got a better shot at them going in and not so much coming out?

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Film Dialogue

You could say that.

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Film Dialogue

I did say that. Would you say that?

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Film Dialogue

Yeah.

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Film Dialogue

Is it possible to to use.

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Film Dialogue

Good to what? What was that word? What word? To what? What did you say? You shoot.

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Film Dialogue

Yeah. Oh, shoot.

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Film Dialogue

What is a you.

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Film Dialogue

Oh. Excuse me. You ought to use. Is it possible the two defendants entered the store, picked 22 specific items off of the shelves, had the clerk take money, make change, then leave. Then two different men drive up in a similar aisle. Shake your head. I'm not done with the little thing so you can understand this now. Two different men drive up in a similar looking car, go in, shoot the clerk, rob him, and then leave.

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Film Dialogue

No, they didn't have enough time.

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Film Dialogue

Well, how much time was they in the store?

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Film Dialogue

Five minutes.

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Film Dialogue

Five minutes. Are you sure? Did you look at your watch? No. Oh. I'm sorry. You testified earlier that the boys went into the store and you had just begun to make breakfast. You were just ready to eat. You heard a gunshot? That's right. I'm sorry. So obviously it takes you five minutes to make breakfast.

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Film Dialogue

That's right. Right.

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Film Dialogue

So you knew that? Do you remember what you had?

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Film Dialogue

Eggs and grits.

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Film Dialogue

Eggs and grits. I like grits, too. How do you cook your grits? You like regular creamy. Well, don't.

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Film Dialogue

Just regular, I guess. Regular instinct with no self-respecting. Certainly uses grits. I take pride in my grits.

00;09;57;10 - 00;10;10;10

Film Dialogue

So, Mr. Tip, how could it take you five minutes to cook your grits when it takes the entire eating world 20 minutes.

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Film Dialogue

I don't know. I'm a fast cook, I guess.

00;10;13;25 - 00;10;28;06

Film Dialogue

I'm sorry I was all the way over here, I couldn't hear. Did you say your face, cook? That's it. Are we to believe that boiling water soaks into a grip? First in your kitchen, then off any place on the face in your.

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Film Dialogue

I don't know. Well, perhaps.

00;10;29;28 - 00;10;41;26

Film Dialogue

The laws of physics cease to exist. And your stove or these magic grits. I mean, did you buy them from the same guy who sold Jack his beanstalk? Oh.

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Film Dialogue

You know, I've touched your Honor. Objection. Sustained.

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Film Dialogue

Are you sure about that?

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Film Dialogue

Let me ignore the question.

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Film Dialogue

Are you sure about that? Five minutes?

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Film Dialogue

I don't know, I think you made your point.

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Film Dialogue

Are you sure that it's.

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Film Dialogue

I may have been mistaken.

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Film Dialogue

I got no more use for this guy.

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Jonathan Hafetz

So what makes this cross-examination so effective?

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Judge Jed S. Rakoff

So, just to put this in context, although this is partly a movie about the death penalty, it is a very largely also a movie about eyewitness identification. The search truth is that wrongful eyewitness misidentification is the single biggest cause of wrongful convictions in the United States, and that has been well documented. So this movie in some ways exposes some of the problems with eyewitness identification.

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Judge Jed S. Rakoff

But with respect to the witness here, the rich witness, whose name I think is Sam Tipton and the character's name, he's a very confident, you know, certain witness. And of course, one of the reason the eyewitness evidence is so strong is that the, witnesses typically are just bystanders. They don't have a motive to lie. And when they come across with certainty.

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Judge Jed S. Rakoff

Yes. I'll never forget that face kind of certainty. He can be very powerful. So the problem that many faces is, how are you going to deal with, a witness like that? And what he focuses on is the tendency of witnesses like that to exaggerate and he finally comes across an area of total exaggeration where the guy says that he cooked his grits in, five minutes.

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Judge Jed S. Rakoff

And then he who has just learned about grits a day earlier in the movie, knows that it takes 20 minutes to cook your grits, before you can have them ready for eating. And he finally gets the witness to admit that he was mistaken about how long it took for him to get his grits cooked. And that's important, because it was during right after that that he says he saw the two boys and saw them fleeing from the scene and so forth and convincing.

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Judge Jed S. Rakoff

I saw something very true to life. Knows then that that's the place to stop his cross-examination. He's got the guy, in a clear exaggeration that every member of the jury understands is totally an exaggeration. And now he doesn't go on and give the guy a chance to weasel out of it, or to get on to other subjects. He sits down.

00;13;34;00 - 00;13;51;00

Judge Jed S. Rakoff

I think he says in the movie, I have no more use for this guy, but but, it gives him the basis to argue to the jury that this guy is just, you know, exact rates everything, and therefore, you can't believe, his account of what he saw.

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Jonathan Hafetz

I think it's a wonderful description of what happens and the way he leads him on and sets him up as him dig in. The witness says no self-respecting Southerner would cook instant grits, right? So he's locked in, and then he just flips the whole script and at that point, as you said, he has the box. He has the audience going for it.

00;14;09;17 - 00;14;33;24

Jonathan Hafetz

But in the courtroom, he's got the jury as well as the members of the public who are watching exactly. There's another cross-examination that I think it's worth playing. This one is about another eyewitness who had testified that she had seen the two defendants. And this is one of the eyewitnesses, a woman who wears glasses. And so this becomes kind of the subject of the cross-examination here.

00;14;33;28 - 00;14;49;14

Jonathan Hafetz

I'm going to play the clip. There's some visual which won't show up on the audio clip. We have to see the movie of Vinny running a tape measure across the courtroom to sort of approximate the distance. But here's the clip of this other effective cross-examination.

00;14;49;17 - 00;15;20;03

Film Dialogue

This is right when you saw the defendants were you wear your glasses. Yes, I was over here. Do you want to put your glasses on for us, please? Oh. How long you been doing glasses? Since I was six. Have they always been that big? Oh, no. They got the. Over the years. So, as your eyes have gotten more and more out of whack as you've gotten older, how many different levels of thickness you got to?

00;15;20;06 - 00;15;52;03

Film Dialogue

Oh, I don't know, over 60 years, maybe ten times maybe. You ready to take a step? Oh, no. No, I think they okay. Oh, we should make sure. Let's check it out. Well, how far were the defendants from you when you saw them entering the sites that, did fit 100ft? Would you hold this, please? Thank you.

00;15;52;06 - 00;16;06;07

Film Dialogue

Barry. Excuse me. Give me Barry. Sorry. Okay. This is 50ft. That's half the distance. How many fingers? My old up.

00;16;06;10 - 00;16;09;23

Film Dialogue

Let the record show that counsel was holding up two fingers.

00;16;09;26 - 00;16;12;01

Film Dialogue

Yeah. No, please.

00;16;12;03 - 00;16;12;26

Film Dialogue

Oh.

00;16;12;28 - 00;16;32;14

Film Dialogue

So now, Mrs. Riley and only Mrs. Riley. How many fingers am I holding up now? Oh. Oh, no. What do you think now? Do you think to get thick glasses.

00;16;32;16 - 00;16;38;22

Jonathan Hafetz

So what is Vinny doing here. And it's, it's also effective in true to life.

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Judge Jed S. Rakoff

So this is not only true to life but this is a situation that defense lawyers face that is much harder than the earlier witness we saw. Because this witness is clearly a truthful lady. She's very likable. No jury is ever going to think that she is lying or even, not trying to tell the truth as it is.

00;17;05;23 - 00;17;29;11

Judge Jed S. Rakoff

You know, when you have a witness like that, you have to take a chance. Now, you know, if you're a lawyer and you go to, a training program on cross-examination, the instructors will always say, be sure not to ask a question. You don't know what the witness will say in answer to, because you could really get burned.

00;17;29;13 - 00;17;55;12

Judge Jed S. Rakoff

But the reality is, is that when you have a witness like this, you've got to take some chances, because normal cross-examination will not work with a witness who is so likable and so truthful. So he focuses on the fact that she has, you know, heavy glasses and he takes the chance and he takes a tape measure and goes, 50ft away and then holds up two fingers.

00;17;55;12 - 00;18;19;18

Judge Jed S. Rakoff

By the way, at that point, the great judge interrupts to say, let the record reflect that he's holding up two fingers, which, by the way, would happen in real life. I believe the judge's job is to say, oh, something's going on, and we want the record to reflect what's really going on. But in any event, after that gets corrected, he holds up his two fingers and she says, four fingers.

00;18;19;20 - 00;18;47;13

Judge Jed S. Rakoff

And of course, that completely destroys the effect of her eyewitness testimony. Now notice the great chance he took, supposing she had said, oh, I think it's two fingers, then he would have been sunk. She would have been reinforced, in her testimony. So he had to take that chance and again, I think that is real life. When you have a witness like that, you can't go by the book.

00;18;47;15 - 00;18;57;05

Judge Jed S. Rakoff

You have to devise some approach that if it works, will be devastating. If it doesn't work, will be devastating in a different way.

00;18;57;08 - 00;19;04;18

Jonathan Hafetz

Yeah. I'm reminded when it doesn't work. If I'm remembering correctly from the O.J. Simpson trial, the moment.

00;19;04;20 - 00;19;09;27

Judge Jed S. Rakoff

With the gloves. Yes, exactly. Yes. Right. So, so there you go.

00;19;10;03 - 00;19;29;03

Jonathan Hafetz

And you also, it's you I think you alluded to treats her differently in terms of just the way he interacts with her. She's an elderly, or older woman. Very nice, as you said. Would have no motive for lying. She's not cocky like the other witnesses. And you're just veneer. Just right. He's much gentler with her when he finishes.

00;19;29;03 - 00;19;36;14

Jonathan Hafetz

It's sort of a soft and so kind of a soft note. Even though he's undercut her testimony, he doesn't say I'm through with her.

00;19;36;16 - 00;20;06;25

Judge Jed S. Rakoff

Right, right. And, that's very important too, because he's an out-of-towner. Another theme in this movie is someone from a very different community trying a case, in this case in a small Alabama town. And he's got to always be aware that the jurors may not tender, you know, may may not like him. And here he's ingratiating himself with the jury by being Mr. Nice Guy.

00;20;06;27 - 00;20;22;00

Jonathan Hafetz

You've seen hundreds, if not thousands of cross-examinations in your career versus an attorney, both the defense and prosecution side. And then as a judge, the cross-examinations in My Cousin Vinny. Remind you of any you've done or you've seen.

00;20;22;02 - 00;20;53;11

Judge Jed S. Rakoff

So one of the best cross-examinations I ever did, I knew was working because of the following. And the jury, which up to then and directed there attention mostly at the witnesses, started looking just at me because they had concluded that my questions were the truth. And regardless of what the witness said, he was clearly lit. And you see that a little bit in My Cousin Vinny as well.

00;20;53;14 - 00;21;26;11

Judge Jed S. Rakoff

As the jury gets more comfortable with Vinny and with his success, they begin to look at him. And I think again, that that's highly realistic and something that, many people are not aware of. If when the jury starts looking at the questionnaire, what they are really saying is it's the questionnaire, who is the source of truth? So anyway, that happened to be once, not too often.

00;21;26;14 - 00;22;01;17

Jonathan Hafetz

Well, it's hard to achieve, but that's a really interesting way to do it. And that becomes the person with the authority in the courtroom. So it must be a nice feeling when you feel like the jury's kind of waiting for you to like, whatever you say next is going to be what they're going to focus on exactly. One of the most memorable moments in the film involves my cousin Vinny's fiancee, Mona Lisa Vito, again played by Marisa Tomei, who provides what turns out to be critical expert testimony on automobiles, effectively demolishing the prosecution's evidence linking the two defendants to the murder.

00;22;01;19 - 00;22;25;22

Jonathan Hafetz

Mona Lisa Vito had accompanied Vinny to Alabama sort of help him, so he tries to use her as an expert. I'm going to play this clip of the voir dire by the prosecutor of Mona Lisa, Vito, where he's going to probe and see if he's going to challenge her as an expert witness. So first, some brief questioning by Vinny and then the inquiry by the prosecutor.

00;22;25;24 - 00;22;32;19

Film Dialogue

Miss Vito, you're supposed to be some kind of expert in automobiles. Is that correct?

00;22;32;22 - 00;22;34;20

Film Dialogue

Please answer the councilor's question.

00;22;34;23 - 00;22;42;12

Film Dialogue

No, I hate him. May I have permission to treat Miss Vito as a hostile witness? You think I'm off the law? Wait till you see me tonight.

00;22;42;14 - 00;22;43;25

Film Dialogue

You two know each other?

00;22;43;27 - 00;22;46;01

Film Dialogue

Yeah. She's my fiancee.

00;22;46;04 - 00;23;06;20

Film Dialogue

Well, that would certainly experiment just a little bit. Yeah. I object to this with improper foundation. I'm not aware of this person's qualifications. I'd like to, What idea? There's witnesses. To the extent of her expertise. Grand jury may proceed. As Vito, what's your current profession.

00;23;06;23 - 00;23;08;18

Film Dialogue

Then? Out of work. Hairdresser.

00;23;08;21 - 00;23;14;17

Film Dialogue

How to work? Hairdresser. Now, in what way does that qualify you as an expert in automobiles?

00;23;14;19 - 00;23;15;22

Film Dialogue

It doesn't.

00;23;15;24 - 00;23;18;08

Film Dialogue

Work. Why are you bought for when?

00;23;18;08 - 00;23;27;13

Film Dialogue

My father was a mechanic. His father was a mechanic. My mother's father was a mechanic. My three brothers a mechanic for my uncles on my father's side. And.

00;23;27;15 - 00;23;32;29

Film Dialogue

You know, your family obviously qualified. But, Have you ever worked as a mechanic?

00;23;33;01 - 00;23;34;11

Film Dialogue

Yeah, my father's garage.

00;23;34;11 - 00;23;38;09

Film Dialogue

You as a mechanic. What you do in your car?

00;23;38;12 - 00;23;45;05

Film Dialogue

Tune ups, oil changes, frightful mining, engine rebuilds, rebuilt. Some trannies rearranged. Okay.

00;23;45;08 - 00;23;52;05

Film Dialogue

Okay. But there's being an ex mechanic necessarily qualify you as me an expert on tire marks now.

00;23;52;07 - 00;23;53;13

Film Dialogue

Thank you. Goodbye.

00;23;53;18 - 00;23;56;11

Film Dialogue

Sit down and stay there until you're told to leave.

00;23;56;13 - 00;24;15;15

Film Dialogue

Your honor. Miss vehicles expertise is in general, automotive knowledge. It is in this area that a testimony will be applicable. If Mr. Trucker wishes to voir dire, a witness as to the extent of her expertise in this area. Sure. He's going to be more than satisfied.

00;24;15;17 - 00;24;34;11

Film Dialogue

Okay. Now, Mr. Vito, being an expert on general automotive knowledge, can you tell me what would the correct ignition timing be on a 1955 Bel Air Chevrolet with a three 27 cubic inch engine? Careful about carburetor.

00;24;34;13 - 00;24;36;04

Film Dialogue

Some bullshit question.

00;24;36;06 - 00;24;37;10

Film Dialogue

Does that mean that you.

00;24;37;10 - 00;24;41;16

Film Dialogue

Can't answer the bullshit question? It's impossible. It's impossible.

00;24;41;16 - 00;24;42;20

Film Dialogue

Because you don't know the.

00;24;42;20 - 00;24;45;01

Film Dialogue

Answer. Nobody could answer that question, your.

00;24;45;01 - 00;24;51;13

Film Dialogue

Honor, I move to disqualify Miss Vito as an expert witness. When you answer the question.

00;24;51;13 - 00;24;54;01

Film Dialogue

No, it is a trick question.

00;24;54;03 - 00;24;56;24

Film Dialogue

Why is it a trick question?

00;24;56;27 - 00;25;12;21

Film Dialogue

What's this? Because somebody make it 327 and 55 to be 27 to come out to 62. And it wasn't offered in the Bel Air with a four barrel carb to 64. However, in 1964 the correct ignition timing would be four degrees before taxes, etc..

00;25;12;24 - 00;25;16;14

Film Dialogue

Well, she's acceptable, you know.

00;25;16;16 - 00;25;46;16

Jonathan Hafetz

Another federal judge at South Carolina, District Judge Joseph Anderson, has said that the film's treatment of Mona Lisa's testimony predicted the Supreme Court's 1999 ruling in Kumho Tire versus Carmichael on the Daubert standard. In other words, the Daubert rationale applies to all expert testimony rather than just the expert testimony based on scientific theories or principles, as opposed to nonscientific testimony based on an expert's personal experience or skills.

00;25;46;19 - 00;25;50;05

Jonathan Hafetz

Do you agree, and what are your thoughts about this exchange in the film?

00;25;50;07 - 00;26;20;14

Judge Jed S. Rakoff

So first, there's some important matters of pronunciation. We have to clarify here. One of the film's few mistakes is they have the government attorney asking to do A for deer. That's the way we pronounce it up here in New York. But in Alabama it would be voir dire. Also Daubert, which you correctly pronounced is frequently mispronounced as Daubert or even by some snobs as to bear.

00;26;20;17 - 00;26;51;08

Judge Jed S. Rakoff

But Mr. Talbot says his name is Talbert. So I'm very glad you got that correct. Delbert had not actually been decided when this movie was released in 1992, and for the benefit of those who were not familiar with it, Delbert increased the role of the judge in determining the admissibility of expert testimony, and originally it dealt with, scientific testimony, and then it was expanded in Kumho Tire to all expert testimony.

00;26;51;10 - 00;27;22;24

Judge Jed S. Rakoff

And I do think this exchange here in the film is very true to life, even in the pre Delbert period, because the government's expert testified about tire marks and the government's objection here, for our deer, was that the defense witness didn't know beans about tire marks. And so then he very quickly changes and says, oh no, I'm calling her as an expert on general automotive knowledge.

00;27;22;26 - 00;27;33;23

Judge Jed S. Rakoff

And that was the key. That was a much broader, more easily satisfied area of expertise. And she had the qualifications through,

00;27;33;25 - 00;27;42;22

Film Dialogue

No.

00;27;42;24 - 00;27;46;03

Film Dialogue

No, no, no.

00;27;46;06 - 00;28;09;24

Jonathan Hafetz

Hi. I'm Jonathan Heifetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film laws critical to many films. Films, in turn, tell 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?

00;28;09;26 - 00;28;36;00

Jonathan Hafetz

And what does the film teach us about the law and the larger social and cultural context in which it operates? Our film today is the 1992 comedy My Cousin Vinny. The movie tells the story of two college students from New York, played by Ralph Macchio and Mitchell Whitfield. We're driving through the South when they are mistakenly arrested and charged with the murder of a store clerk in Alabama and face the death penalty.

00;28;36;03 - 00;28;59;12

Jonathan Hafetz

Ironically, the two had thought they were being pulled over initially by the police for mistakenly stealing a can of tuna fish. One of the defendants decides to call his cousin at Vinny, My Cousin Vinny, to get them out of this predicament. It turns out, however, that Vinny is a personal injury lawyer from Brooklyn who is newly admitted to the bar, has virtually no experience, let alone criminal defense experience.

00;28;59;14 - 00;29;24;05

Jonathan Hafetz

But somehow, Vinny, with the help of his savvy fiancée Mona Lisa Vito, played by Marisa Tomei, manages to turn the tide with a brilliant courtroom performance and have the case dismissed. Vinny, in a subplot himself, also narrowly escapes, having lied to the judge about his credentials. The script is by Dale Launer, and it was directed by Jonathan Lynn, who studied law at Pembroke College, Cambridge.

00;29;24;07 - 00;29;48;26

Jonathan Hafetz

It stars Joseph Pesci as Gambino and Marisa Tomei, who won a Best Supporting Actor award for her performance. Ralph Macchio and Mitchell Whitfield are the two defendants. Lane Smith plays the prosecutor, and Fred Gwynne is the southern judge who Vinny spars with throughout the film. We're honored to have as our guest today to discuss the classic American comedy about the law and lawyers, Judge Jed S Rakoff.

00;29;48;29 - 00;30;10;17

Jonathan Hafetz

Judge Rakoff has served since March 1996 as a U.S. District Judge for the Southern District of New York. He also frequently sits by designation on the Second and Ninth Circuit Court of Appeals. Judge Rakoff is an adjunct professor at both Columbia Law School and NYU Law School, and a lecturer of law at Berkeley Law School and the University of Virginia Law School.

00;30;10;20 - 00;30;40;09

Jonathan Hafetz

He's written over 200 published articles, 900 speeches, and 2000 judicial opinions. He's the author of Why the Innocent Plead Guilty and the guilty Go Free and Other Paradoxes of Our Broken Legal System, and he has also coauthored five books. He's a regular contributor to The New York Review of Books. As well. After law school, Judge Rakoff clerked for the late Honorable Abraham L Friedman, U.S. Court of Appeals, Third Circuit, and then was an associate at the Debevoise Law firm.

00;30;40;12 - 00;31;01;15

Jonathan Hafetz

From 1973 to 1980, he served as a Assistant United States Attorney in the U.S. Attorney's Office for the Southern District of New York, the last two years serving as chief of business and securities fraud prosecutions. Thereafter, before going on the bench, he was a partner at two large law firm specializing in white collar criminal defense and civil Rico, the Drake.

00;31;01;15 - 00;31;27;04

Jonathan Hafetz

I've served on the National Commission on Forensic Science and is co-chair of the National Academy of Sciences Committee on Eyewitness identifying Nation. He served on Swarthmore College's Board of Managers and on the governance Board of the MacArthur Foundation's Project of Law and Neuroscience. He's assisted the US government in training foreign judges in countries around the world. He's a member of the American Academy of Arts and Sciences and of the American Law Institute.

00;31;27;06 - 00;31;47;15

Jonathan Hafetz

He's also a judicial fellow of the American College of Trial Lawyers and the American Board of Criminal Lawyers. He was a director of the New York Council. Defense Lawyers. Among his many awards was the Learning Hand Award from the Federal Bar Council, the Leon Silverman Award from the American College of Trial Lawyers, and the United Nations World Jurist Association Medal of Honor.

00;31;47;18 - 00;32;13;09

Jonathan Hafetz

Judge Rakoff is married to Doctor and Rakoff, a child development specialist. They have three daughters, two grandsons and judge. Rakoff and his wife are also expert ballroom dancers. Judge Rakoff has officiated at over 81 weddings and is the author of numerous lyrics and humorous poems, several of which have been published. In 2014, Judge Rakoff was listed by fortune magazine as one of the world's 50 Greatest Leaders.

00;32;13;12 - 00;32;33;07

Jonathan Hafetz

I should add to this list of incredible accomplishments. I was privileged to serve as Judge Rank Office Law Clerk in 1999 to 2000. As I was married by a rabbi and not Judge Rakoff, I thought, what better way to describe the struggle and to have Judge Rakoff come on my podcast to discuss the great film. My cousin Danny, welcome, judge.

00;32;33;10 - 00;32;46;18

Judge Jed S. Rakoff

So enjoy it. It's really a great privilege and pleasure to be here. And thank you for that overwrought introduction. I'm just glad, my wife's not here because she would demand rebuttal time.

00;32;46;21 - 00;33;08;22

Jonathan Hafetz

There are enough. It's always nice to give an introduction. Someone said it's an introduction and only a mother would give. And I'm proud. Well, that's great to have you discuss this very funny movie. Dealing with a very serious subject, capital punishment. But it is a great comedy. And the film has received wide praise from judges, lawyers and legal scholars for its portrayal of American jury trials.

00;33;08;22 - 00;33;11;11

Jonathan Hafetz

Is the praise warranted, do you think?

00;33;11;14 - 00;33;38;21

Judge Jed S. Rakoff

I definitely think it is warranted. It's not only a hilarious movie, but one of the most legally accurate movies that I know. In terms of trial procedures, evidentiary rulings, and the like. My understanding is the credit for that goes to the director, Jonathan Lynn, who, although a Brit went to Cambridge University to receive, law training.

00;33;38;24 - 00;34;04;19

Judge Jed S. Rakoff

And I think, that led him to insist that the trial scenes and the procedural scenes all be consistent with the actual rules of procedure in evidence and, I think that adds to the movie's effect, because, we're so used to these sort of phony movies where the defendant confesses on the stand under cross-examination from Perry Mason or the like.

00;34;04;26 - 00;34;17;09

Judge Jed S. Rakoff

And that doesn't happen in real life. But everything that happens in My Cousin Vinny could have happened in real life with only a little exaggeration. And I think, greatly adds to its impact.

00;34;17;11 - 00;34;42;08

Jonathan Hafetz

Yeah, and it's incredible, too, because, one of the reasons, that's given for why movies or television shows aren't so real to life in depicting courtroom experiences is that you would lose some of the dramatic effect, right? They need to take poetic license, creative license to make it more dramatic. But the films, you know, courtroom sequences are dramatic and funny even as they're true to life.

00;34;42;08 - 00;34;45;04

Jonathan Hafetz

So that's an important achievement and worth noting.

00;34;45;06 - 00;34;55;10

Judge Jed S. Rakoff

Yes. I mean, when you come right down to it, comedy is just reality, slightly exaggerated. So, and that's what you get here.

00;34;55;12 - 00;35;26;21

Jonathan Hafetz

In the film. Vincent LaGuardia Gambini, aka my Cousin Vinny, played by Joe Pesci. After something of an awkward start which includes being held in contempt by the judge, played by Fred Gwynne, and spending several nights in jail, effectively cross-examined several prosecution witnesses and turns the case around for his two clients. So let me play a clip of one of these cross-examinations, which involves the great southern delicacy of grits.

00;35;26;23 - 00;35;29;01

Film Dialogue

Mr. Gambini, your witness.

00;35;29;04 - 00;35;37;22

Film Dialogue

Mr. Tipton, when you view the defendants walking from their car into the saxophones, what angle was your point of view?

00;35;37;24 - 00;35;41;13

Film Dialogue

They was kind of walking toward me when they entered the store.

00;35;41;15 - 00;35;44;16

Film Dialogue

And when they left. What angle was your point of view?

00;35;44;18 - 00;35;46;17

Film Dialogue

It was kind of walking away from me.

00;35;46;20 - 00;35;51;11

Film Dialogue

So would you say you got a better shot at them going in and not so much coming out?

00;35;51;13 - 00;35;52;17

Film Dialogue

You could say that.

00;35;52;19 - 00;35;54;24

Film Dialogue

I did say that. Would you say that?

00;35;54;27 - 00;35;55;29

Film Dialogue

Yeah.

00;35;56;01 - 00;35;59;28

Film Dialogue

Is it possible to to use the two?

00;35;59;28 - 00;36;03;17

Film Dialogue

What, what was that word?

00;36;03;20 - 00;36;06;04

Film Dialogue

What word to point.

00;36;06;07 - 00;36;09;02

Film Dialogue

What did you say? Use?

00;36;09;04 - 00;36;10;22

Film Dialogue

Yeah. To use.

00;36;10;24 - 00;36;12;03

Film Dialogue

What is it, Ute?

00;36;12;06 - 00;36;45;24

Film Dialogue

Oh. Excuse me. You want to use. Is it possible the two defendants entered the store, picked 22 specific items off of the shelves, had the clerk take money, make change, then leave them. Two different men drive up in a similar aisle. Shake your head. I'm not done with the whole thing. So you can understand this now. Two different men drive up in a similar looking car, go in, shoot the clerk, rob him, and then leave.

00;36;45;26 - 00;36;48;17

Film Dialogue

No, they didn't have enough time.

00;36;48;19 - 00;36;50;08

Film Dialogue

How much time was they in the store?

00;36;50;08 - 00;36;51;05

Film Dialogue

Five minutes.

00;36;51;11 - 00;37;08;12

Film Dialogue

Five minutes? Are you sure? Did you look at your watch? No. Oh. I'm sorry. You testified earlier that the boys went into the store and you had just begun to make breakfast. You were just ready to eat. You heard a gunshot? That's right. I'm sorry. So obviously takes you five minutes to make breakfast.

00;37;08;15 - 00;37;09;01

Film Dialogue

Right? Right.

00;37;09;02 - 00;37;12;00

Film Dialogue

So you knew that, do you remember what you had?

00;37;12;02 - 00;37;13;10

Film Dialogue

Eggs and grits.

00;37;13;13 - 00;37;21;05

Film Dialogue

Eggs and grits. I like grits, too. How do you cook your grits? You like regular creamy. Well, don't be just regular.

00;37;21;05 - 00;37;30;00

Film Dialogue

I guess. Regular instinct with no self-respecting certainly uses grits. I take pride in my grades.

00;37;30;03 - 00;37;32;04

Film Dialogue

So, Mr. Tip.

00;37;32;07 - 00;37;32;16

Film Dialogue

How.

00;37;32;16 - 00;37;43;02

Film Dialogue

Could it take you five minutes to cook your grits when it takes the entire eating world 20 minutes?

00;37;43;05 - 00;37;46;15

Film Dialogue

I don't know, I'm a fast cook, I guess.

00;37;46;17 - 00;38;01;00

Film Dialogue

I'm sorry I was all the way over here, I couldn't hear. Did you say your face? Confederate all week? I believe that boiling water soaks into a great face in your kitchen. Get out any place on the face, idiot.

00;38;01;03 - 00;38;02;04

Film Dialogue

I don't know who.

00;38;02;05 - 00;38;14;21

Film Dialogue

Perhaps the laws of physics cease to exist. And your stove? Were these magic grits? I mean, did you buy them from the same guy who sold Jack his beanstalk?

00;38;14;24 - 00;38;17;04

Film Dialogue

You know, I've touched Your Honor. Objections? Sustained.

00;38;17;06 - 00;38;17;29

Film Dialogue

Are you sure about that?

00;38;17;29 - 00;38;19;07

Film Dialogue

Let me know the question.

00;38;19;07 - 00;38;20;22

Film Dialogue

Are you sure about that? Five minutes?

00;38;20;22 - 00;38;23;00

Film Dialogue

I don't know, I think you made your point.

00;38;23;03 - 00;38;27;03

Film Dialogue

I will shut up. And it's.

00;38;27;06 - 00;38;29;20

Film Dialogue

I may have been mistaken.

00;38;29;22 - 00;38;33;03

Film Dialogue

I got no more use for this guy.

00;38;33;06 - 00;38;37;17

Jonathan Hafetz

So what makes this cross-examination so effective?

00;38;37;20 - 00;39;10;15

Judge Jed S. Rakoff

So, just to put this in context, although this is partly a movie about the death penalty, it is, very largely also a movie about eyewitness identification, the, sad truth is that wrongful eye witness misidentification is the single biggest cause of wrongful convictions in the United States. And, that has been well documented. So this movie in some ways exposes some of the problems with eyewitness identification.

00;39;10;18 - 00;39;34;29

Judge Jed S. Rakoff

But with respect to the witness here, the rich witness, whose name I think is Sam Tipton and the character's name, he's a very confident, you know, certain witness. And of course, one of the reason the eyewitness evidence is so strong is that the, witnesses typically are just bystanders. They don't have a motive to lie.

00;39;35;02 - 00;40;09;13

Judge Jed S. Rakoff

And when they come across with certainty. Yes. I'll never forget that face kind of certainty. It can be very powerful. So the problem that Finney faces is, how are you going to deal with, a witness like that? And what he focuses on is the tendency of witnesses like that to exaggerate. And he finally comes across an area of total exaggeration where the guy says that he cooked his grits in, five minutes.

00;40;09;15 - 00;40;44;17

Judge Jed S. Rakoff

And then who has just learned about grits a day earlier in the movie, knows that it takes 20 minutes to cook your grits, before you can have them ready for eating. And he finally gets the witness to admit that he was mistaken about how long it took for him to get his grits cooked. And that's important, because it was during right after that that he says he saw the two boys and saw them fleeing from the scene and so forth and running.

00;40;44;18 - 00;41;06;20

Judge Jed S. Rakoff

I saw something very true to life knows then that that's the place to stop his cross-examination. He's got the guy, in a clear exaggeration that every member of the jury understands is totally an exaggeration. And now he doesn't go on and give the guy a chance to weasel out of it, or to get on to other subjects. He sits down.

00;41;06;22 - 00;41;23;22

Judge Jed S. Rakoff

I think he says in the movie, I have no more use for this guy, but but, it gives him the basis to argue to the jury that this guy is just, you know, exaggerates everything and therefore you can't believe, his account of what he saw.

00;41;23;25 - 00;41;42;08

Jonathan Hafetz

I think it's a wonderful description of what happens and the way he leads him on and sets him up as him dig in. The witness says no self-respecting Southerner would cook instant regrets. Right? So he's locked in, and then he just flips the whole script. And at that point, as you said, he has the box suddenly has the audience going for it.

00;41;42;08 - 00;42;06;16

Jonathan Hafetz

But in the courtroom, he's got the jury as well as the members of the public who are watching exactly. There's another cross-examination that I think is worth playing. This one is about another eyewitness who had testified that she had seen the two defendants and this is one of the eyewitnesses, a woman who wears glasses. And so this becomes kind of the subject of the cross-examination here.

00;42;06;20 - 00;42;22;07

Jonathan Hafetz

I'm going to play the clip. There's some visual which won't show up on the audio clip. You have to see the movie of Vinny running a tape measure across the courtroom to sort of approximate the distance. But here's the clip of this other effective cross-examination.

00;42;22;10 - 00;42;52;24

Film Dialogue

This is really when you saw the defendants were you wear your glasses. Yes, I was over here. Do what you want to put your glasses on for us, please. Oh. How long you been wearing glasses? Since I was six. Have they always been that big? Oh, no. They got thick over the years. So as your eyes have gotten more and more out of whack as you've gotten older, how many different levels of thickness we've got to.

00;42;52;26 - 00;43;24;26

Film Dialogue

Oh, I don't know, over 60 years. Maybe ten times maybe. Ready? Take a step. Oh, no. No, I think they. Okay. Oh, we should make sure. Let's check it out. Well, how far were the defendants from you when you saw them entering this act of silence that, did feet, 100ft. Would you hold this, please? Thank you.

00;43;24;28 - 00;43;38;28

Film Dialogue

Wow. Excuse me. Give me. Sorry, sorry. Okay. This is 50ft. That's half the distance. How many fingers? Molding up?

00;43;39;01 - 00;43;42;14

Film Dialogue

Let the record show that counsel was holding up two fingers.

00;43;42;16 - 00;43;44;21

Film Dialogue

Your on a plate,

00;43;44;23 - 00;43;45;16

Film Dialogue

Oh.

00;43;45;19 - 00;44;05;06

Film Dialogue

So now, Mrs. Riley and only Mrs. Riley. How many fingers am I holding up now? Oh. Oh, no. What do you think now? Do you think? I think the glasses.

00;44;05;09 - 00;44;11;14

Jonathan Hafetz

So what is Vinny doing here? And is this also effective in true to life.

00;44;11;17 - 00;44;38;12

Judge Jed S. Rakoff

So this is not only true to life but this is a situation that defense lawyers face that is much harder than the earlier witness we saw. Because this witness is clearly a truthful lady. She's very likable. No jury is ever going to think that she is lying or even, not trying to tell the truth as it is.

00;44;38;14 - 00;45;02;03

Judge Jed S. Rakoff

You know, when you have a witness like that, you have to take a chance. Now, you know, if you're a lawyer and you go to, a training program on cross-examination, the instructors will always say, be sure not to ask a question. You don't know what the witness will say in answer to, because you could really get burned.

00;45;02;05 - 00;45;28;05

Judge Jed S. Rakoff

But the reality is, is that when you have a witness like this, you've got to take some chances because normal cross-examination will not work with a witness who is so likable and so truthful. So he focuses on the fact that she has, you know, heavy glasses and he takes the chance and he takes a tape measure and goes, 50ft away and then holds up two fingers.

00;45;28;05 - 00;45;52;08

Judge Jed S. Rakoff

By the way, at that point, the great judge interrupts to say, let the record reflect that he's holding up two fingers, which, by the way, would happen in real life. The judge's job is to say, oh, something's going on, and we want the record to reflect what's really going on, but that if that answer that gets corrected, he holds up his two fingers and she says, four fingers.

00;45;52;10 - 00;46;16;20

Judge Jed S. Rakoff

And of course, that completely destroys the effect of her eye witness testimony. Now notice the great chance he took, supposing she had said, oh, I think it's two fingers, then he would have been sunk. She would have been reinforced, in her testimony. So he had to take that chance and again, I think that is real life.

00;46;16;22 - 00;46;29;27

Judge Jed S. Rakoff

When you have a witness like that, you can't go by the book. You have to devise some approach that if it works, will be devastating. If it doesn't work, will be devastating in a different way.

00;46;30;00 - 00;46;37;10

Jonathan Hafetz

Yeah. I'm reminded when it doesn't work. If I'm remembering correctly from the O.J. Simpson trial, the moment.

00;46;37;12 - 00;46;42;18

Judge Jed S. Rakoff

With the gloves. Yes, exactly. Yes. Right. So, so there you go.

00;46;42;24 - 00;47;01;26

Jonathan Hafetz

And you also you I think you alluded to treats, differently in terms of just the way he interacts with her. She's an elderly, or older woman. Very nice, as you said. Would have no motive for lying. She's not cocky like the other witnesses. And you're just veneer. Just right. He's much gentler with her when he finishes.

00;47;01;26 - 00;47;09;06

Jonathan Hafetz

It's sort of a soft and so kind of a soft note. Even though he's undercut her testimony, he doesn't say I'm through with her.

00;47;09;09 - 00;47;39;17

Judge Jed S. Rakoff

Right, right. And and that's very important too, because he's an out-of-towner. Another theme in this movie is someone from a very different community trying a case, in this case in a small Alabama town. And he's got to always be aware that the jurors may not tender, you know, may or may not like him. And here he's ingratiating himself with the jury by being Mr. Nice Guy.

00;47;39;20 - 00;47;54;22

Jonathan Hafetz

You've seen hundreds, if not thousands of cross-examinations in your career versus an attorney, both in the defense and prosecution side. And then as a judge, the cross-examinations in My Cousin Vinny remind you of any you've done or you've seen.

00;47;54;25 - 00;48;26;06

Judge Jed S. Rakoff

So one of the best cross-examining tions I ever did, I knew was working because of the following. And the jury, which after then had directed their attention mostly at the witnesses, started looking just at me because they had concluded that my questions were the truth. And regardless of what the witness said, he was clearly lit. And you see that a little bit in My Cousin Vinny as well.

00;48;26;08 - 00;48;58;16

Judge Jed S. Rakoff

As the jury gets more comfortable with Vinny and with his success, they begin to look at him. And I think again, that that's highly realistic and something that, many people are not aware of. If when the jury starts looking at the questionnaire, what they are really saying is it's the questionnaire, who is the source of truth? So anyway, that happened to be once, not too often.

00;48;58;18 - 00;49;12;22

Jonathan Hafetz

That's well, it's hard to achieve, but that's a really interesting way to see it made. That becomes the person with the authority in the courtroom. So it must be a nice feeling when you feel like the jury's kind of waiting for you to like, whatever you say next is going to be what they're going to focus on.

00;49;12;26 - 00;49;14;11

Judge Jed S. Rakoff

Exactly.

00;49;14;13 - 00;49;41;00

Jonathan Hafetz

What are the most memorable moments in the film involves My Cousin Vinny, his fiancee Mona Lisa Vito, again played by Marisa Tomei, who provides what turns out to be critical expert testimony on automobiles, effectively demolishing the prosecution's evidence linking the two defendants to the murder. Mona Lisa Vito had accompanied Vinny to Alabama sort of help him, so he tries to use her as an expert.

00;49;41;06 - 00;49;58;14

Jonathan Hafetz

I'm going to play this clip of the voir dire by the prosecutor of Mona Lisa, Vito, where he's going to probe and see if he's going to challenge her as an expert witness. So first, some brief questioning by Vinny and then the inquiry by the prosecutor.

00;49;58;16 - 00;50;05;04

Film Dialogue

Miss Vito, you're supposed to be some kind of expert in automobiles. Is that correct?

00;50;05;07 - 00;50;07;00

Film Dialogue

Can you please answer the counsels question?