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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 about the larger social and cultural context in which it operates? Our film today is called it a French film, which appeared in France under the name Lamine from 2015. Directed by Christiane von Chien, which is centered around a criminal trial in France, the accused Marshall Berglund, played by Victor Pontecorvo, is charged with manslaughter, which carries a possible 20 year sentence for allegedly kicking his seven month old daughter to death.

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Jonathan Hafetz

The trial is conducted in France's core dioceses, which hear more serious crimes in France. The president and senior judge, Michelle Racine, played by Fabrice Eugenie, runs a tight ship in his courtroom. The film, recorded offers a valuable insights into judges, jurors and criminal procedure in France, as well as a helpful vehicle to compare criminal trials there to those in the United States.

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Jonathan Hafetz

The film additionally contains a romantic subplot that traces Judge Racine's relationship with one of the jurors and an old friend, played by the Danish actress. Seeds Babette Nixon. Our guest today to discuss this film and the larger topic of comparative criminal procedure in movies are Fred Davis and Sam That Way. Fred is a former prosecutor and currently focuses practice on multi-jurisdictional criminal investigations.

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Jonathan Hafetz

He's a lecturer in law, Columbia Law School and teaches and writes extensively on comparative and cross-border criminal matters. Fred's the author of American Criminal Justice An Introduction, published by Cambridge University Press in 2019, which explains how U.S. criminal procedure differs from those in many parts of the world. Fred is also the author and coauthor of several book chapters and articles on financial crime in France and elsewhere.

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Jonathan Hafetz

He's a frequent contributor to blogs including the global Anti-Corruption Blog at Harvard and the International Enforcement Law Reporter. Fred previously served as an advisor to the prosecutors at the International Criminal Court in The Hague and the International Criminal Tribunal for Rwanda. And he's participated as counsel for victims in the trial of charity and dictator he saw in Habré in Dakar, Senegal, for international human rights violations.

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Jonathan Hafetz

Fred also previously served as an assistant U.S. attorney in the Southern District of New York from 1974 to 1978, where he served as chief, Appellate Attorney. He was law clerk to the Honorable Henry J. Friendly, Chief Judge of the Second Circuit Court of Appeals, and to U.S. Supreme Court Justice Potter Stewart. Fred often appears on national TV in France to address issues related to American and international criminal justice.

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Jonathan Hafetz

He's a life member of the American Law Institute and an elected fellow of the American College of Trial Lawyers and the International Academy of Financial Crime Litigators. 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, he was named a Chevalier of the Legion of Honor of France, the country's highest civilian honor, for his academic and teaching work.

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Jonathan Hafetz

Sam Betsy is an adjunct professor at the Thomas Jefferson School of Law and at the University of San Diego Law School. Sam is the author of Comparing Criminal Procedures Through Film, which contains 400 clips over 55 countries and 15 legal traditions. The book, which was published by Vanda Publishing in 2019, is a virtual encyclopedia, an indispensable guide and instructional material for understanding comparative criminal procedure in movies.

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Jonathan Hafetz

Sam is the author, also of several published law review articles on the subjects of international law and immigration law from 1987 to 1999. He was an assistant editor of International Legal Materials, a publication of the American Society of International Law. He specialized in immigration law since 1987, when he began as a prosecutor in immigration court for the U.S. Immigration and Naturalization Service in San Francisco.

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Jonathan Hafetz

From there, he was promoted to associate general counsel in Washington, DC, in charge of attorney training, and then transferred to the Civil Division of the U.S. Attorney's Office in San Diego, where he continues today to specialize in immigration matters before the U.S. District Court and the Ninth Circuit Court of Appeals in 2007 and 2008. Sam was the only government attorney selected in the category of Immigration and Super Lawyer San Diego addition.

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Jonathan Hafetz

Sam also previously served as an active reservist in the Judge Advocate General Score from 1987 to 2014 until retiring as a lieutenant colonel. He is, as mentioned before, a true expert in comparative criminal procedure and film, as is Fred. So it's a wonderful honor to have you both on law and film today, to talk about it and to talk about the topic of comparative criminal law.

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Jonathan Hafetz

Welcome.

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Fred Davis

Thank you.

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Sam Bettwy

Thanks so.

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Jonathan Hafetz

So before we dive into the movie, I want to just talk a little bit about your respective and collective work exploring criminal procedure in foreign films. What got you interested in this subject? And also why is a comparative perspective on criminal justice useful and important?

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Fred Davis

I can start if you like. This is Fred Davis. You're very kind. Biography. Jonathan, is capable of being looked at from a different perspective. Namely, for about 30 years, my career was pretty much like many of the people appear in your program, namely as a law clerk. And then I was a prosecutor, and then I was in big law with the trial practice in New York, which I enjoyed.

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Fred Davis

I didn't do the three things. One is I moved to Paris, France. I lived there for 12 years and set for the Paris bar at age 63, and then, tried criminal cases under French law. And in France, and really got involved in the criminal life, the life of the criminal lawyer over there. Which was fascinating.

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Fred Davis

Along that time, I started getting involved at the International Criminal Tribunals about what you've written and had really interesting stuff at the International Criminal Court, particularly at the Rwanda court. And as you mentioned, the trial in Dakar, Senegal. And then the third thing I did when I moved back then was just after 12 years in France, I decided to teach.

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Fred Davis

And what I did is I sat down, I said to myself, what is it? I think I know what that's different. Interesting. And it occurred to me, not too many people are really going to complete criminal trials in two completely different, you know, criminal justice systems and different languages. So I thought I made up the notion of, comparative criminal justice and literally sat down with a blank page and came up with a syllabus.

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Fred Davis

And then fortunately, I learned that there is some literature out there, and one of the first things I stumbled on to 7 or 8 years ago was this amazing article at the time, written by this guy, Sam, that we will soon hear from, and he had written an article on studying comparative criminal justice through film, which was just amazing to me.

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Fred Davis

So I reached out to Sam. We become very, very close friends and what I'm doing now in my course on comparative criminal justice at Columbia is, thanks to Sam, I have access to his extraordinary encyclopedia collection of these extracts. And what I do is every week, a student or two picks a film extract that all the students in the class then watch, and we spend 10 or 15 minutes at the beginning of each class, and it's just amazing.

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Fred Davis

I'll just quickly give an example. The day before yesterday, one of my students, who's a German student, brought to my attention a film that neither Sam and I knew was one that came out last year called finder, which means Enemy in Germany turns out to be a really good film with a whole lot of points to made out of it.

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Fred Davis

So this has just become a major part of the academic work and the teaching work I'm doing. And I'm deeply grateful to Sam for the work which to explain now all the work he's done to make this available to me and to you.

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Sam Bettwy

Thanks a lot for Ed, for mentioning me and my introducing what I've done. But, as you did, I stumbled upon this. I studied comparative law just in general, the comparative law. When I was getting my lamb at Georgetown many, many years ago. And I just loved the course I took, just took the course out of curiosity. And I love the course.

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Sam Bettwy

And I as soon as I had the opportunity to teach it, which started in about 1995 at Thomas Jefferson, I was trying to introduce film, and I was very thankful that the school let me experiment doing that, but it wasn't focused on criminal procedure, was just anything I could find. Some of it was civil procedure, divorces, all kinds of things from all over the world.

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Sam Bettwy

But it hadn't really distilled what it was I was trying to do. And then I just realized one day, wow, 90, 90% of the films that are out there are about criminal procedure, and they depict everything from beginning to end, in a lot of detail, from arrest to conviction to appeal, acquittal, execution to I'd like to do an entire article just on executions and how they're depicted in film.

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Sam Bettwy

So anyway, my e-book is the result of that thread. What you saw was was in print. And then I did, have a book in print. And then when the publisher, as they often do, they say you want to do a revised edition now, so why not do an e-book? It's not available in print, this one, because it's all, you know, because of the film clips.

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Sam Bettwy

It took me a lot of time making these trailer length clips, but the point of it really is, I will say, to sneak in some comparative law because I still love comparative law, just generally the concept of it and comparative studies. And I found that this was a vehicle that students were interested in, just like audiences, just as audiences are interested in these films.

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Sam Bettwy

But the idea of using film, of course, is to take the student transport the student right into the foreign country, into the police stations, the lawyers offices, courtrooms, you know, where they can see all of this happening in action and how it's played out, in stories. And as I said, audiences love these. And so filmmakers make them I make a lot of them.

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Sam Bettwy

And it's hard to keep up with how many of these films come out.

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Fred Davis

Just to add something to what Sam just said. I think both of us feel this, and that is that. I think both of us start with a point of departure that when you look at another country's criminal justice system, we start with a presumption that it is neither better or worse than ours. It's just very different now. But may not be true, but I think it's very useful to start with that presumption.

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Fred Davis

And the differences are also ultimately historical and cultural. I mean, there's a reason why one country interpret the right to silence in a way that we don't in the United States. There's a reason why the juries deliberate one way and, differently in another country. And ultimately that comes up so much better or so well in films. One point I'd like to emphasize the, by and large, the films that Sam and I talk about are not overtly didactic.

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Fred Davis

They're not documentaries, they're crowd pleasers. I mean, they're popular films. And so what's interesting to us, and I think to your listeners, Jonathan, is kind of the baseline. What what is assumed to be the parameters and the baseline of justice. And that's what comes out. But I also think this area is important. I tell my students, I don't care if you're international or not.

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Fred Davis

I don't care if you're in the business area or want to be like, you know, me, a criminal guy. The world's national A is globalizing. You're going to run into criminal activity in a country you don't understand. And what I want to do is help you understand, get the tools to sort of listen to and ask questions about another country system so that you don't reject it as being kind of wrong, which is the reaction many of us have to the mistake.

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Fred Davis

And the thing that, you feel. I think you and I talked about this a bit.

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Sam Bettwy

Oh, no, I, I agree, entirely. In fact, I wanted to say when I wrote that print version of the book, I felt like I needed to come up with some kind of a conclusion or recommendation. And I said I felt that the right to remain silent was so much better protected in the United States. And then I when I did the e-book, I thought, well, of course it is, because we have the presumption of innocence, but that's not what they use in the civil law tradition.

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Sam Bettwy

So what I was saying was pretty tautological. It wasn't much insight at all. So yeah, I found myself falling into that trap where I was defending our own system.

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Jonathan Hafetz

Yeah, it's interesting because most people are certainly United States. Their perception of trials is seen through the films, and those are typically American films. And so it's very interesting. I think, for people to be able to exposed to the kind of comparative work that you do, Sam, that you write about and show through your book. And Fred, you as well, you're teaching and you're writing and did you practice?

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Jonathan Hafetz

And to have that kind of perspective, it gives you a broad understanding of the way criminal trials, criminal procedure operates elsewhere in the world. But I think it also gives kind of an interesting lens and something they'll talk about today on. Does that change how we view our criminal justice system? And I guess more relevant for this podcast, some of the movies about our criminal justice system.

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Jonathan Hafetz

So it's valuable and informative for so many different perspectives. Let's talk a little bit about the movie recorded. This movie centers around a trial and a court that sees in France. So what is this type of court and how does it compare to other courts in France? And perhaps also in the United States.

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Fred Davis

The court cases is a court the only court where you get a jury trial, in France, you get a jury trial for most but not quite all crimes that are punishable in more than ten years. And because their sentencing structure, their sentencing guidelines are lower than ours. That basically means it's going to be, rape, murder, certain kinds of terrorism or recidivism.

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Fred Davis

So they're not that many jury trials in France beneath that. Are there a couple of levels like the equivalent police courts? And then there's kind of the main court that would be the equivalent of a federal district court where most non jury trials are heard. So the jury in France and we'll get into some of the detail on this.

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Fred Davis

Now consists of nine people. It used to be 12. It consists of six people who are lay jurors. I mean it's kind of like ours are pulled at random, but who's sitting with three professional judges? It's what the many Europeans refer to as a mixed jury. And there's an interesting history of that in France. They had no jury until the French Revolution in the 1790s.

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Fred Davis

Even though they had a war with England. They kind of admired a lot of English stuff. So what the revolutionaries did is they imported the jury system, which for quite a while was like ours. Namely, there would be no judges sitting with them. Very oddly, this notion of a mixed system was introduced, during the war, the Second World, or by the French by the Vichy France.

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Fred Davis

It's now part of their system. And for reasons we'll talk about, it's not going to change. Namely, they're now kind of locked into this notion that a jury deliberation is a joint product of professional judges and judges. But that's where the court seizes. And what this shows is kind of how that procedure goes forward and to some degree, the jury deliberation.

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Sam Bettwy

I have a question, Fred. I just to follow up, I realize you say it used to be 12. Used to be nine large persons are jurors and three judges, and now it's six and three. How many votes are needed? It used to be eight. Is it five now.

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Fred Davis

It's not a unanimous jury, but it's a plurality. And it's always based on the presumption that you have to have a majority of the larger. So if you had 12, let's assume that the three judges convict. That means we're left with nine. You had to have five of them plus the three. So that used to be eight out of 12.

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Fred Davis

And now it's whatever that mathematics works out to it. If you have six jurors after four of them. So four plus three. But the notion is you have to have a majority of the jurors.

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Sam Bettwy

Can the jurors outvote the judges?

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Fred Davis

Yeah, that's the point. I mean, even if all the judges convict or quit, then the jurors cannot vote them. And then there's an issue that we can talk about. I mean, the movie addresses, it's to some degree, you know, do the judges have a disproportionate weight? Can they, you know, push the jurors around? They insist they don't. I've done some interviewing of judges a little bit with non judges.

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Fred Davis

And you know, who knows really.

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Jonathan Hafetz

That's an interesting dynamic between judge jury and judge jury control. And near the white jury is kind of a that's the a counterweight. Although it sounds like what you're saying is judges can influence especially looks like well from the film the presiding judge Racine is a powerful figure.

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Fred Davis

Yeah. But keep in mind, one function of this is what we have in the United States is what we think of as a jury charge, the instructions to the jury. And, you know, we all have been there, right? I mean, at the end of the trial, you know, either before or sometimes after the summations of the judge sits there and reads from his or her notes and looks at the jurors and tells them, you know, you're the deciders, the fact but you follow the law.

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Fred Davis

And I'm now going to tell you what the law is. And then they go on for an hour or whatever it is, you know, reading this stuff, there's a debate as to how good that is. I mean, there are some scary studies where they interview jurors afterwards and the jurors were told boom, boom, boom. And then an hour later ask, what did you hear?

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Fred Davis

And they didn't get it right. I've tried a lot of jury trial. I actually think jurors kind of get it. I mean, even if they don't articulate it back just right, they kind of get it. I'm generally confident that. But in the in the French system, the judges sit there around a table with the judges and explain it, looking at them in the eye saying, do you have any questions about this?

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Fred Davis

And and then they talk together about how the law applies in a particular circumstance. And that's, you know, that's not irrational. You know, that makes sense to me.

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Jonathan Hafetz

And so you don't get the same, you know, the fact law division. Yeah, the United States and France, where the jurors decide only the facts and the judges decide only the law.

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Fred Davis

Well, no, the judge still will tell them what the law is, but they do it in a more conversational way, together with deliberating with them. And then in this case, an important point. What's happened starting at 12, 15 years ago is when they reach a verdict, particularly if it's to, convict the judge. Well, then write it up saying we met together.

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Fred Davis

And here's what what we have concluded. Now, that is critically important because of a decision that came down at the European Court of Human Rights called tax cut, tax cut, which is a case involving Belgium, where the court in Strasbourg reviewed a jury process sort of like ours. Not quite. But the key point was the jurors did not explain what the reasoning was.

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Fred Davis

And in a fascinating decision, I urge everyone to read. It's available in English from the court's site. They basically said, this does not comport with the European Convention of Human Rights and their reasoning is a key element of European criminal justice, which is important is that no decision can be made that affects liberty, privacy, dignity without there being a reason stated for it that can be reviewed.

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Fred Davis

Right. So they looked at, you know, our jury system where the jurors go in and say, or no. Yes or no, and you're not even allowed to find out what they, they're really thinking. And to them that's just irrational. And it can't be really reviewed in a way that they wanted reviewed. So this mixed system is now kind of baked into to the French criminal justice system, roughly a third of the or maybe a bit more of the countries in the European Union don't have juries at all.

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Fred Davis

So they don't have this problem. And all of them them now are subject to this decision in Strasbourg. So there has to be judicial involvement one way or another.

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Sam Bettwy

I just wanted to go back to just sort of the generally your question about comparing the French system and what's depicted in this film and how it compares to the American. And one thing that I try to do with the students, to get them to make those comparisons, but through film, is to come up with what the essence of the film is in arriving at what the essence of the film is, what is the message?

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Sam Bettwy

Whether or not it was intentional by the filmmaker could have been subconscious, but who was the hero? Who's the protagonist? Who's the antagonist? Who's the victim? And so when I when I looked at this film, I feel I would make the case. I don't think it's that hard to make this case, but that Racine is the hero. You might make the argument that the jurors are heroes, but I think that, you know, he's depicted as a hero.

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Sam Bettwy

I also think the title of the film, Laramie, might suggest that write for the attorneys. The lawyers wear the ermine trim as well, I think, but it seems like we didn't see that much of the lawyers.

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Fred Davis

I think it depends whether you're in Paris or not.

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Sam Bettwy

That's what I've read. That's what I read you. I got I was in nice over the summer and I saw all these attorneys. I was watching a fast track misdemeanor case and and they were wearing the, the trim. I don't know if it was real ermine, but they were wearing some kind of trim.

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Fred Davis

I'm a member of the Paris Forest. I still have a black robe, but it doesn't have any ermine on it.

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Sam Bettwy

Okay, okay, so I was going to say so compared to American films, I think you look at trial judges, they're always, I think almost always depicted in a good light, but rarely as heroes. They're calling, you know, the ones who call the balls and strikes, you know, so they're not really usually depicted as heroes. And I can think of at least a couple of British films where judges are depicted as villains when they try to influence the jury.

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Sam Bettwy

And I would mention let him have It is one of those films, and another one called The Chatterley Affair, but especially let him have it, because it's based on a real story where the judge overreached in trying to explain the facts to the jury. And then I would say, you could go through all of the players in this film and say that jurors as heroes, rarely depicted that way in French films.

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Sam Bettwy

Although you, had a show on 12 Angry Men, you had a heroic figure played by Henry Fonda. So a juror who could be a hero. There's, I looked it up. There's another film. Runaway Jury. I don't know if you ever saw that 2003 film, but where John Cusack and Rachel Weiss stand up to the corrupt trial attorney played by Gene Hackman.

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Sam Bettwy

Okay, they're playing heroes. Jurors as heroes. I don't think you see that in French films. They're not considered key players. Same thing with defense counsel. I think you see a lot of American films where defense counsel or are played as heroes in this film. Defense counsel just have a moment, a bit of a heroic moment. But I think it's pretty rare in French films to depict a defense counsel as a hero.

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Sam Bettwy

And I could go on. And, Fred, you may want to talk about the, victim's counsel. And you were a victim's counsel.

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Fred Davis

One big difference in many systems from the American is in the United States. By and large, victims have such a pretty limited role. I mean, they sometimes have a role to be consulted. And in any number of countries and in several of the international criminal tribunals, a victim becomes a party to the criminal matter. They're referred to as a party civil villain.

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Fred Davis

One of them appeared in this movie, and that means they are there. They can cross-examine, they can appeal, they can do a whole bunch of things. They can even cause a case to be brought if the prosecutor doesn't want to bring it. And, they view is wrong to give prosecutors a monopoly over the decision whether to prosecute or not.

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Fred Davis

So there are some well known cases where victims represented by counsel would go to and investigate any magistrate after the prosecutor refused to prosecute and the case gets prosecuted. So, you know, that's one well known functional difference between many civil law systems and ours.

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Sam Bettwy

Well, so in this film, the victim's counsel, I would say was basically a potted plant. And I've seen several Italian French movies where the judge says, any questions from victims counsel? No questions. How did you feel when you were a victim's counsel? Did you feel like you were a potted plant? I mean, I don't think I've ever seen them portrayed as a hero except once, right?

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Sam Bettwy

In our that film that we talk about, the rape of love, where at least victims counsel is helping the hero through the process. Yeah, I've had two.

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Fred Davis

Experiences quite differently. One, as you have mentioned, I worked with victims counsel in the case against his son, Aubrey. Who's this sadistic dictator who tried to kill some 40,000 people and is involved in widespread rape. And I was part of a team that represented the largest group of victims. And basically we were we shouldn't exaggerate, but we were very, very important in getting this case to trial and getting a tried.

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Fred Davis

I didn't stay there for the whole trial because it went on for about four months, but we had a much bigger impact than the prosecutor did. On the other side, I was a defense counsel in France for a big case, big criminal case. I wasn't too worried about the prosecutor, but the plaintiff's counsel was really good, and, she was the one I was worried about.

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Fred Davis

A kind of an adversary. Can I make one comment? Jonathan, in terms of the 12 angry men, which you wonderfully discussed with Elkin Abramowitz, I mean, this extraordinary movie, I showed that movie in Europe and by and large, people say, yeah, that's why we don't want to have a jury system like yours, because what happened there is totally irrational.

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Fred Davis

I mean, you know, they're talking racial stereotypes, you know, and we finally goes off and finds his own, you know, evidence. A couple people change their minds because they want to go to a ball game, whatever it is. And they said, you know, that that, you know, that's why we want a judge there to keep an eye on this stuff.

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Fred Davis

So I love opposing that movie with movies like chorded, which we're talking about today.

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Jonathan Hafetz

Right. And just to go back to her saying before, I think we're seeing the judge is kind of that figure, right? There's a conversation where he walks into the room where the two other judges, associate judges, are deliberating or talking with the jurors, and he basically says, you know, you've got a role to play. You've got to stick to that role, even if it leads to acquittal.

00;26;16;00 - 00;26;40;13

Jonathan Hafetz

Yeah. So that was maybe I think he's the hero, somewhat of a complex character. And it talks about sort of his personal side. He's a bit imperious, but he is sort of the hero. And I guess I would ask, I wonder, well, I wonder if you agree with that, what I was saying, and also, whether it's sort of just easier for the judge to be a hero in the French system and or in other European systems, civil law systems, because of the role they play, which includes questioning.

00;26;40;13 - 00;26;52;14

Jonathan Hafetz

And in some sense they might have sole or shared decision making power, as opposed to the US jury system, where I think, as you're saying, it's usually either the prosecutor more often, not the defense attorney that's the protagonist or the hero of the film.

00;26;52;16 - 00;27;13;12

Fred Davis

What's funny? The image, and I'll tell you why. And that is judges in Europe and particularly in France, don't have a judicial personality, namely the sense that many, many opinions by law are not even identified by the judge that wrote them. I remember when I was trying a criminal case for an American client. They basically wanted to know is, you know what?

00;27;13;19 - 00;27;35;24

Fred Davis

You go to the internet and find out what people know about the judge. Answer. You don't know much. Among other things, there's no such thing as a dissenting opinion, ever, because they view that as kind of a judge mouthing off that something that has got nothing to do at the bottom line. So, you know, if you were to ask, normally, I don't think people think of judges as heroes in France, plus the judges themselves, having gotten to know quite a few of them.

00;27;35;24 - 00;27;54;00

Fred Davis

And I used to I teach every year at the judges school their version of and I teach to senior judges. And my wife, who's a former judge who goes with me. It's not a heroic job for them. It's basically a functionary job where you work 20 years, you get a good pension, and you feel like I do the good job and I go home at night.

00;27;54;02 - 00;28;12;29

Jonathan Hafetz

In the movie, it's almost like, you know, he's playing his role and that's what makes him. That's in a sense the heroism. He's not going above and beyond a call or doing anything unusual, which is I'm staying in my lane. I'm performing my function as part of the larger system. So he's the ultimate bureaucrat. And in that sense, he's the that's what makes him, I guess, to some extent, the hero of the film.

00;28;13;00 - 00;28;32;13

Fred Davis

And keeping one of the actor plays was very, very well known in France. That's kind of a big deal. So you go to it. It's almost when you go to a movie and Gregory Flatley, somebody go there knowing something's going to happen, and he plays a lot of humorous roles. He was very, very good in this. Funnily, I went to the first screening of that before it even opened in the movie theaters at the Columbia.

00;28;32;13 - 00;28;48;17

Fred Davis

The bar association at France, along with fellow lawyers, were all invited. And there I was, a whole bunch of my buddy, you know, criminal defense lawyers. And we're watching this thing and kind of cackling about what was going on. And I remember a little bit of a sense that, yeah, you know, here's a judge who kind of stood up for us, in essence.

00;28;48;17 - 00;28;51;11

Fred Davis

I mean, he didn't automatically go along with the prosecution.

00;28;51;11 - 00;29;14;24

Sam Bettwy

The line I would also add, I think as far as this judge goes, as the character in the film undergoes some kind of transformation, right? I mean, and that's always what makes a good story. And yes, we're told upfront that he's somebody who just follows the dossier. He's not one of these judges who lets the witnesses talk. He sticks to what the police provide or the investigating magistrate.

00;29;14;28 - 00;29;41;27

Sam Bettwy

But there's a turning point somewhere in the film. I mean, maybe it's when that defense counsel, he allows the defense counsel to do that searing cross-examination of the investigator. And that seems to be a turning point, maybe changed his mind and thinking, well, I shouldn't be relying so much just on what's in the dossier, I, I should allow things to be presented in open court and for evidence to be tested in open court, which seemed like maybe a bit of a transformation.

00;29;41;27 - 00;29;59;11

Sam Bettwy

A comment on the civil law system that uses just basically the dossier and our system where we have the right to confrontation, we have the principle of morality. In other words, evidence is presented in court through witnesses and it can be tested there in open court.

00;29;59;13 - 00;30;09;06

Jonathan Hafetz

Sam, can you elaborate a little more for listeners about the dossier and how it's compiled? I don't have alluded to it, but just the role it plays. And because you contrast that with the oral tradition.

00;30;09;08 - 00;30;13;17

Sam Bettwy

I want to defer to Fred. I mean, I think he probably knows better than I do how that works.

00;30;13;20 - 00;30;33;16

Fred Davis

Let me do it this way. At the very, very beginning of this trial, the jury is picked and so forth. Very first thing that the judge does is turn to the accused and basically said, who are you? What's your story? Right. And that's literally the way it happens. I've been at a bunch of trials. The reason is that the big cases like this are at the end of what's called an asterix.

00;30;33;17 - 00;30;55;18

Fred Davis

You in France, it's the investigating magistrate who's been investigating sometimes for many years. And what they are, they are complete, independent neutrals. And the example I give when I talk with my American friends and I say, imagine a grand jury with a grand jury is not run by the prosecutor. It's run by a neutral for the benefit of the defense and the prosecution.

00;30;55;20 - 00;31;14;17

Fred Davis

So when the investigating magistrate is looking into who committed this murder, they consult with a prosecutor. Who do you think we should interview? But they also consult with the victims, but also the potential accused. I mean, someone as to whom there's evidence saying, what do you think I should look into? And all of them have exactly equal access.

00;31;14;22 - 00;31;51;28

Fred Davis

The defense has the same access as the prosecutor. That judge then makes a decision that's not an accusation in our indictment, since it's a set of findings saying, I find there's evidence to hold this person over for trial, namely, I find this witness as credible. This witness is incredible. So that our judge, who we saw in this movie will have read this finding by his fellow judge, finding there's a lot of evidence about the accused and has seen essentially all the evidence that's been put together, all of which is, in our terms, automatically admissible.

00;31;51;28 - 00;32;13;11

Fred Davis

That's now the trial record. You don't have this, admitted it, and it denies so forth. So really what they're saying is we have a tentative finding already and what our trial is going to be is to see an opportunity for all side to see whether that's right or not. So in that context is not totally irrational, nor really wrong to say to the defense, look, you've been looking at this case for 3 or 4 years.

00;32;13;11 - 00;32;14;29

Fred Davis

Tell me, what do you think?

00;32;15;01 - 00;32;29;19

Sam Bettwy

What do you think, Fred? Two, about the use of the examining magistrate. I, at least I've read, is waning a bit and that there's more reliance on the police and that maybe what's ending up in a dossier could be more police work than magistrate work.

00;32;29;21 - 00;32;59;18

Fred Davis

Actually, there's a funny phenomenon going on that I've written about, and I'm deeply involved in this, a little bit different. And that is that particularly for white collar crimes, the current national financial prosecutor, France, whom I know quite well, has basically said to individuals and particularly big corporations, if you're aware of something went wrong, come to me soon and let's open a discussion between you and me that can lead to a negotiated outcome.

00;32;59;20 - 00;33;26;04

Fred Davis

All of which is pretty radical in France, right? But what he implicitly is saying is, and by the way, we can get this done without this pesky investigating magistrate so that to some degree, what's happening and it's happening kind of now, is that the prosecutors in France, at least in big corporate cases, are getting a flexibility and the ability to move quickly that they didn't have before at the expense of the investigating magistrates.

00;33;26;06 - 00;33;46;11

Jonathan Hafetz

And in the film, the judge does take over, like you said, Fred, it opens up with the judge confronting the accused. The very beginning of the trial, which is from a US perspective, of startling injustice, doesn't ask the accused after they enter a plea, anything and the defendant refuses to testify at all. Right. It irks Racine, the judge significantly and keeps kind of coming back to him.

00;33;46;11 - 00;34;03;15

Jonathan Hafetz

And all the defendant says is, I didn't do it. I didn't kill Melissa at the name of the baby girl. And the judge scolds him and says, well, you know, the jurors are going to have to rely on the dossier, your prior statements to police. There's a confession, which is, I think, a key piece of evidence, and you also get someone to testify about his character.

00;34;03;15 - 00;34;13;11

Jonathan Hafetz

So it's really interesting to see what's going on here from kind of a US perspective, in terms of any presumption of innocence, the right to be free of self-incrimination, right, not to testify.

00;34;13;13 - 00;34;28;17

Sam Bettwy

Well, I would say that is actually a perfect segue from what we were talking about, and that there is really a presumption of, I hate to say, a presumption of guilt, because I do think that the French system and the civil law systems are looking for the truth, but it seems to have already been decided in the dossier.

00;34;28;17 - 00;34;48;01

Sam Bettwy

And there are a lot of films that talk about that. We're just going through the motions here in the courtroom, but something that's already been decided. But then this focus on the character examination which relates to this. I don't know who this quote is attributed to, but that in the French system, the man or the person is judged not what they did.

00;34;48;03 - 00;35;05;09

Sam Bettwy

It's the man and not the acts, or it's the man and not the crime. So it's very important when it looks. Look, we know you're guilty, but we want to see who you are. Who is this person? You know, that's the beginning. That's how it kicks off. And of course, the accused is expected to cooperate in that. And they usually do.

00;35;05;09 - 00;35;22;03

Sam Bettwy

And so this would be shocking to a French audience. This is a big deal to see this on films. This person say no I'm not going to cooperate. Why that's not our tradition. That's not our practice. Whereas American audiences would say it's shocking with the judges doing it's shocking, you know? So we'd have a, I would think, completely different reaction.

00;35;22;05 - 00;35;42;18

Fred Davis

One phenomenon here is the inference from silence. And because of course, in California, we have this very, very strong notion that because of the right to silence and the Fifth Amendment right to not incriminate yourself, there can be no inference drawn from your refusal to testify. Relatively few people around the world agree with that, including the English now.

00;35;42;20 - 00;35;59;25

Fred Davis

And you see this in the crime dramas that we love to look at, because these days, their version of the Miranda warning is to say you're under arrest. Everything you say can be used against you. The right to counsel, and you have a right to silence. But if you don't answer our questions now, that may hurt you later on.

00;35;59;25 - 00;36;03;14

Fred Davis

If you try to testify at trial, they have to tell them that as their Miranda warnings.

00;36;03;17 - 00;36;33;08

Jonathan Hafetz

It's kind of like the other end of the convergence that we started out talking about, where you see the French system going back, incorporating elements of the common law system, i.e. through the mixed system of judges and jurors, of lenient jury not having a pure civil law system of judge. And then on the other end, you see the common law system like in England, incorporating elements of the civil law inquisitorial system and pushing back against this presumption of innocence, and that you can't draw any inference from a defendant's refusal to testify based on the privilege of self-incrimination.

00;36;33;08 - 00;36;41;02

Jonathan Hafetz

So there's some kind of meeting in the middle, more especially on the European side, than between America, which seems a little bit more still in its own land.

00;36;41;04 - 00;37;05;00

Fred Davis

If I can call in something, Sam said, I want to be careful in terms of what happens at the beginning of a French trial. It is easy enough to say no presumption of innocence, no right to silence. But it follows a system where the person being investigated has rights that an American defendant can only dream of. What would any one of your interviewees, Jonathan, who worked with defense counsel, say if they were told, look, you know, we're doing this grand jury, but it's for your benefit.

00;37;05;00 - 00;37;25;09

Fred Davis

You see everything. We'll share all of our thoughts in advance, as long as you tell us what you think in that context. It's really not irrational. Say we put all our cards on the table and we just want to figure out what happened here. So let's just all say what you think. This shows up in interesting way. Singapore has a really fascinating criminal justice system.

00;37;25;12 - 00;37;47;12

Fred Davis

It's in English, fortunately, and it has some historical links to England. But if you look at their code of criminal procedure, there's a clear burden on the prosecutor. Clear right to silence, clear presumption of innocence up through trial. And then it says in their code, after the prosecution rests, if it's not dismissed, then it turns to the defense.

00;37;47;12 - 00;37;54;24

Fred Davis

And if they choose not to put on a case at that point, then an inference can be drawn from it. And you know, I don't know if that's for right or wrong. It's not irrational.

00;37;54;26 - 00;38;17;04

Sam Bettwy

I don't want to forget to say this, too. When you talk about putting on a case, what we see in this film, they're made or recorded is what you typically see in the civil law systems is the judge is controlling the presentation of evidence. So you say this is not really a trial in order to test the evidence just because of the way it's conducted, Racine is going to call up the witnesses.

00;38;17;06 - 00;38;43;20

Sam Bettwy

He's in control of that, and then he'll test the evidence, but not so much the defense counsel. Again, I think that was kind of a rare scene. What we saw with that cross-examination, I mean, I've seen it in other films. I think the French system seems a little bit more adversarial than others, but generally it's that presiding judge is to say, this is I'm going to decide what needs to be presented here and the order in which it's done and who is going to have to appear, and so on.

00;38;43;22 - 00;39;09;20

Fred Davis

Let me take that even one step further, Sam. An American trial, which we all know. Basically the trial starts and the jurors know nothing at all. And it's the prosecutors show he or she has to move the ball. And as often as not, the defense counsel strategy is to be as invisible as you can. Right. To the extent that the jurors are thinking about the prosecutor in his or her case and looking for that reasonable doubt, you're a happy person.

00;39;09;23 - 00;39;27;28

Fred Davis

Here's the way a trial generally begins. Not so much a jury trial, but an injury trial in France, as the judge will say, this is 950 in the morning on Monday morning, the start of the trial, the judge will say, look, I read the file and there are eight witnesses one, two, three, four, five, six, seven, eight. I don't see any problem with witnesses one, two, three and five.

00;39;28;01 - 00;39;43;29

Fred Davis

I want to hear these other witnesses. I'm not quite sure I understand them. So my idea is we'll call this witness. That witness, Mr. prosecutor, miss defense can say, do you disagree? And if you're defense counsel, you have to argue that you can't simply say, well, we're resting on a presumption of innocence. They have to call all of them.

00;39;43;29 - 00;39;56;16

Fred Davis

You can't do that. You have to say, I want to hear this witness, because I can test such and such. So the judge already has his or her arms around the case and is trying an efficient way to get to the end of it.

00;39;56;18 - 00;40;14;12

Jonathan Hafetz

And I guess there are different judging styles to, as alluded to in the film, right? Where they describe, they're like two kinds of presiding judges. There's the ones who close off debate. They rely on the investigative reports, the dossier. Right. And then they're the ones who allow it more. They let the trial play out. The defendant, victim witness speak.

00;40;14;15 - 00;40;22;24

Jonathan Hafetz

So it does seem to vary within the French system. Racine being the more sort of controlling judge is the way he wants to direct things more.

00;40;22;26 - 00;40;27;00

Sam Bettwy

Yes, the judge is controlling things, but the jurors can ask questions to.

00;40;27;02 - 00;40;52;09

Jonathan Hafetz

I want to go to that because that's obviously does not exist in the US system. The jurors don't get to question any witnesses. But in France, the jurors do get to question the witnesses. And there's actually one of the jurors in the film asks a question. And I think, Sam, in your work, you refer to another French film called The Seventh Juror, where they actually the juror is the guilty party, and he happens to be put on the jury, and he feels so guilty that he ends up through questioning, bringing out that the defendant is actually not the killer.

00;40;52;09 - 00;40;59;10

Jonathan Hafetz

But anyway, I I'd love to hear your thoughts on the role that the jurors play in France and how that differs from the US.

00;40;59;12 - 00;41;16;16

Sam Bettwy

Certainly. Again, I look at it in terms of the reaction of the audience. And of course, the French audience will say, well, this is of course, normal. And that plot twist where the jurors, the actual killer, you know, that plays well in France, where an American is watching that film and thinks, what a far fetched idea this is.

00;41;16;16 - 00;41;19;03

Sam Bettwy

You know, who came up with this crazy idea for a plot?

00;41;19;05 - 00;41;42;22

Fred Davis

Jurors just aren't as common. I mean numerically, as common in France. I've been called for jury duty any number of times. I don't get picked. I've got any number of friends who have been jurors, and I don't think I've ever met anybody in France is gone through that. So it's not like an everyday thing. I think more than anything else, the series of movies we can see including, some of them that are very hostile to authorities, there's one that's called Law Breakers.

00;41;42;22 - 00;42;02;03

Fred Davis

I think it's where Jacques Brel, the famous singer, plays a heroic investigating magistrate. But there's a stream or thread of French movies that basically are saying the system is corrupt, it doesn't work, and a few of them end up saying, well, the jurors are our refuge, which is sort of what 12 Angry Men does, but not as much in this country.

00;42;02;04 - 00;42;05;17

Fred Davis

It's just not part of the popular culture the way it is here.

00;42;05;19 - 00;42;25;01

Sam Bettwy

Yeah, I think that's interesting too. And again, I ask the students when they watch a film and say, okay, in this film there was a correct outcome or there was a just outcome. That's how it's depicted. Who was responsible for that? Who was the key player for that in our system, how is the filmmaker saying, well, the only reason we got there was because of Henry Fonda on the jury or in any film, French.

00;42;25;01 - 00;42;46;26

Sam Bettwy

I say you had a bad outcome. Who is the filmmaker saying was responsible for that or could have prevented it and didn't? So you talk about that one film, Law Breakers. There was corruption among the police. And so I think it was directed at the police that they were the people that, the investigating judge he examined, magistrate was fighting against, and he lost.

00;42;46;28 - 00;43;06;16

Fred Davis

And looking more broadly, I mean, there are many films here. You're much more familiar with them than I am, Sam, outside of the United States, in Europe that deal with things like police, corruption. There's a, Indian film made in Tamil. We all know about Bollywood. There's also a film industry in the southern part of the country that there's a really good huge movie about police corruption there that came out a few years ago.

00;43;06;17 - 00;43;24;28

Fred Davis

So there are sort of common alleyways, you see, when you look at films from South America, which Sam has many wonderful films from Korea where they have a great film industry. Japan's got several really good ones. So that, you know, there really so much richness out there and so much to learn about the topic that he and I love to think about and teach.

00;43;25;00 - 00;43;44;05

Sam Bettwy

And I just going to make a footnote about what you said about India is that there are Indian films that depict the corrupt police, but they never depict or rarely depict the police, beating a confession out of someone because confessions to the police are not admissible in court in India. So of course they don't portray that in the film.

00;43;44;05 - 00;43;48;13

Sam Bettwy

The Indian audience would say, what's this all about? Does it make any sense?

00;43;48;15 - 00;44;14;00

Jonathan Hafetz

Yeah. It's interesting how you referred to, 12 Angry Men and the Henry Fonda character a couple times. The scene that's the closest I'm analogy for me or closest. Yeah. Most similar scene in court. It is the one where you have the jurors talking at a cafe during a break in the trial, you know, talking about their views on the case, which are influenced by social class divisions, just as they are 12 angry men.

00;44;14;05 - 00;44;25;19

Jonathan Hafetz

They also appear to verge on discussions of the case they probably shouldn't be having at this cafe. So I found that scene kind of particularly interesting from that perspective. I don't know if it struck either of you.

00;44;25;22 - 00;44;40;17

Fred Davis

Well, to me it does humanize the whole process. I mean, we were always reminded that we can have criminal procedures we read about in the books, and then it's interpreted through real people. And I used to be Sam's point that the judge in this case is sort of the hero and party to hero, because it becomes a real guy.

00;44;40;17 - 00;45;03;01

Fred Davis

It turns out he's got a past with some of these troubling issues and stuff. So I thought that was rather well done. You know, if you look at some of the English films, they do this by making making some of the characters, you know, indelible caricatures. I mean, you know, you know, you think about Charles Laughton and, in some of his movies, which is kind of funny, but that's an important part of the process to show that they're real people.

00;45;03;03 - 00;45;23;14

Sam Bettwy

I think that's an interesting point. It didn't really strike me one way or the other, but only because, again, I'm thinking about, well, what is a French audience? Think of this. And I don't think much of it. I think I agree with Fred. It was just some kind of character development, not making a statement so much about, whereas an American audience would think, oh, this is not good, that the jurors are talking about the case like this.

00;45;23;14 - 00;45;34;02

Sam Bettwy

But again, it's because the judge can monitor that and control that and make corrections along the way. So there's no reason to worry about it. There's less reason to worry about it.

00;45;34;05 - 00;45;55;25

Fred Davis

One thing it's interesting to look at over time is something you pointed at Sam, namely in a given film. Is there a hero and who is it? And if you look at American films until roughly the mid 50s, certainly early 50s, the heroes were always the police and occasionally a prosecutor, and they are always males, white and were a white shirt.

00;45;55;28 - 00;46;15;00

Fred Davis

And I grew up watching Dragnet and in retrospect is just totally boring, really, because he was always right and so was only bit by bit that we started getting the defense counsels here. I mean, a high point of that probably was To Kill a mockingbird, right? Which is what one of the great acting, and emotional moments in film history.

00;46;15;05 - 00;46;25;27

Fred Davis

And then occasionally they get the jurors as the hero and occasionally a rogue cop, somebody who turns in another column so that the evolution of who the hero is, I think, tells a lot about the era.

00;46;25;29 - 00;46;44;19

Jonathan Hafetz

Yeah, yeah, Perry Mason as well, though that comes in sort of the sort of who the hero question is. Fascinating. This film, and I think Sam and Freddie both pointed to a pivotal scene where I think, chef, it's the examination of the police officer. Right. Because the central piece of evidence is the confession, and it's very aggressive questioning by the defense counsel.

00;46;44;19 - 00;47;12;17

Jonathan Hafetz

And then the judge seeing the presiding judge takes over and seems appears that the confession may have been coerced, not in the sense that there was gross physical violence when beaten out of him, but that the circumstances around the questioning in the interrogation process. Right. The guard, the view that there was some undue coercion. And that seems to me what is the pivot point in the film and for a scene, who after that seems to think, hey, we've got to acquit, I don't know, that was my sense.

00;47;12;17 - 00;47;15;18

Jonathan Hafetz

That was a very important moment in terms of who the hero is.

00;47;15;20 - 00;47;32;20

Sam Bettwy

Right? And maybe that experience in the courtroom and the relationship with a woman who asks a poignant question during the trial may have affected him. And as I say, maybe we see as somewhat of a transformation of the character and, maybe she's the hero. I hadn't thought about that before.

00;47;32;23 - 00;47;45;05

Jonathan Hafetz

Or maybe the defendant. I think one of the implications is perhaps the defendant is sort of taking the blame for the mother. In that sense, there's something heroic about what he's doing. He's just going to take it on himself and not have her take the blame for the death.

00;47;45;08 - 00;48;09;07

Sam Bettwy

I thought I thought about that. He's he's, the typical wrongfully accused defendant. We see that in films everywhere. But, yes, it look like that he was standing up to the judge, which was somewhat heroic, and he was not throwing his wife under the bus, because we get the implication that she's the one who killed, which I think is also maybe a bit of irony, because victims counsel here, I think, was representing her.

00;48;09;07 - 00;48;10;01

Sam Bettwy

The mother.

00;48;10;05 - 00;48;11;07

Fred Davis

Mother. Yeah.

00;48;11;09 - 00;48;15;23

Sam Bettwy

So that was ironic that, the victim's counsel was representing the true killer.

00;48;15;25 - 00;48;36;07

Fred Davis

But essentially the French seem to be into this. This movie was pretty popular when it came out, I think in 2015. Last year, there's a movie made a big stir in France that came here called Central Mare, which is about a trial that involved an African woman. It was an odd movie in some ways. I just read a few days ago, this year's winner of the Cannes festival was a movie.

00;48;36;07 - 00;48;56;25

Fred Davis

It has not come to us yet. I haven't seen it in English. It's called anatomy of a fall. It's apparently it's a very, intense trial drama that won the Cannes prize this year. And they all, by the way, recognize that this is sort of the Americanization of the French film industry and that, you know, cops and robbers films and police detectives and stuff that they sort of recognized as an American genre.

00;48;56;28 - 00;49;10;23

Fred Davis

I hope many of your listeners, Jonathan, are familiar with The Wire, which is a series that came out 15, 20 years ago, which to me is just beyond brilliant. But there's a French equivalent of that in English called spiral. I think you've seen that right, Sam?

00;49;10;25 - 00;49;11;24

Sam Bettwy

Yes. Oh, yes.

00;49;12;01 - 00;49;29;06

Fred Davis

It was seven seasons, I think of ten episodes each. I mean, we really, really dig deep into the personalities of the police, the investigating magistrate, the prosecutor, the defense counsel. All of them become real people who you live with for seven years. And it's pretty extraordinary.

00;49;29;08 - 00;49;41;28

Sam Bettwy

I, assigned that film to one of my students a few years ago, and she was upset because she said she watched the episode, that I had her watch the introductory when she said she couldn't stop and she binged on the whole thing. Yeah. So good.

00;49;42;00 - 00;49;43;00

Fred Davis

It's really well done.

00;49;43;02 - 00;49;53;14

Jonathan Hafetz

I haven't seen that. I've seen The Wire, but that sounds like well worth watching it. And I have seen the film, you know, Mia, which is fantastic. Also interesting where chorded is set, it's set in the same neighborhood.

00;49;53;14 - 00;50;13;19

Fred Davis

I saw that actually. That's the same town. Yeah. Central Marin, trust me, because there's a link to Dakar, Senegal, which is where the east end of retrial took place. And very curiously, I lived there for two years. I speak the local language in Dakar, and so there's a resonance there. But once again, that's the French way of looking at their colonial past in Santa mia.

00;50;13;19 - 00;50;23;29

Fred Davis

Here's this Senegalese French woman who's working within the criminal justice system. And I thought it was a very useful, introspective view of where are we today in that sense?

00;50;24;02 - 00;50;27;21

Jonathan Hafetz

Anything else that struck either of you about corded?

00;50;27;23 - 00;50;47;25

Sam Bettwy

Yes. The fact that the Judge Racine tells the jury, well, we haven't arrived at the truth. We're not there quite yet, so we can find the truth later because the prosecutor can re prosecute this case. So there's an American audience. I say, wait, how does that work? We can't do that in the United States if you're acquitted, that's it.

00;50;47;25 - 00;50;49;13

Sam Bettwy

Game over.

00;50;49;16 - 00;51;21;20

Fred Davis

I think what you're referring to is that in France, you can appeal an acquittal in the court of Caesar. If she goes to an appellate court with, believe it or not, another jury. I mean, it's really pretty amazing. And the appellate court can to some degree hear amplified or more evidence. It's not like restart the investigation, but the Europeans in general have the notion of a so-called double degree of jurisdiction, namely that almost all European countries I'm familiar with, you basically have two real trials, whereas in the United States, if you go to the Second Circuit, that's not a trial.

00;51;21;20 - 00;51;30;10

Fred Davis

I mean, you're there to say either evidence got kept out, they should have gotten in or, you know, the instruction is wrong or something is wrong, but you're not trying the case. Again in Europe. You do.

00;51;30;12 - 00;51;37;06

Jonathan Hafetz

That's fascinating that it's an appeal, but it's essentially not limited to the record. There's factual findings and testimony, I think is what you're saying.

00;51;37;07 - 00;51;56;12

Fred Davis

It's not only that, Jonathan, the issue before the appellate court is very simple. What happened? Is this person guilty or not? And when the Second Circuit reaches a decision, is either affirmed or vacated and remanded for a new trial? They don't say guilty or not guilty. An appellate court in much of Europe will say guilty or not guilty.

00;51;56;15 - 00;52;12;18

Jonathan Hafetz

And so the prosecution effectively gets two real fights at the ABA, although it doesn't work the same way in reverse. Read that if you are found guilty, defendants found guilty. Defendant appeals to the Court of Appeals that the appellate court will conduct the same review, not just send it back down on the innocent.

00;52;12;20 - 00;52;27;08

Fred Davis

One of my cases, my client got convicted in the trial court and made up an appeal. And it's not a complete redo in the sense that everything that happened before happened. You know, a second jury in the United States, if you have a hung jury, they don't know what the first jury. And that's not the way an appeal is in France.

00;52;27;08 - 00;52;34;25

Fred Davis

I mean, they don't know about it, but you can add new stuff. And so we had a conviction. We went up on appeal. We had a two and a half week trial. We got an acquittal.

00;52;34;27 - 00;52;56;29

Sam Bettwy

By the way. Okay. As a footnote, I mean, there are some countries, I think Greece is an example where there's a strong principle of legality, where all crimes must be prosecuted and the prosecutor has to prosecute even if there's no prosecutorial discretion. Basically, a prosecutor has to prosecute. And so in I think it's Greece, the prosecutor can appeal from a conviction.

00;52;57;02 - 00;53;14;16

Jonathan Hafetz

So here the judge gives that important speech about what their job is towards the end. I think that is what makes him so. The central is the central moment of the film, as you said to we're not supposed to just find the truth. If we can't, we have to trust the system essentially. Right? And acquit and the truth will come out maybe in a later proceeding.

00;53;14;16 - 00;53;24;10

Jonathan Hafetz

But that's not for us to decide. And that's sort of where he's being kind of like this supreme bureaucrat fulfilling his role, as do we have a role to play in this case, our role dictates acquittal.

00;53;24;12 - 00;53;36;25

Sam Bettwy

Right? It's not as it would be here. Say, well, the prosecutor had his or her chance failed to prove beyond a reasonable doubt. So the game's over. No, it's well, we're just not quite at the truth yet. We don't know.

00;53;36;27 - 00;53;54;21

Fred Davis

We're all familiar in our country with the OJ Simpson case, where he was acquitted and then found civilly liable. And to all of us. Yeah, it wasn't proved beyond a reasonable doubt, but by a preponderance of the evidence. Yeah I do. The French have a hard time understanding that because really their criminal justice system, he did he did it.

00;53;54;21 - 00;54;03;23

Fred Davis

He did. And they view an acquittal as he didn't do it and say that he didn't do it. But we still find a liable. That was a toughie for them intellectually.

00;54;03;25 - 00;54;19;16

Jonathan Hafetz

Epistemologically. He either did or didn't. But the US system and the films that we've been talking about in the US, films like 12 Angry Men are all reasonable Doubt films. And so that's the that's a system. That's not our job to answer that question, you know, did the government prove its case that questions product of a different system.

00;54;19;16 - 00;54;26;24

Jonathan Hafetz

But it's I think it's exactly why it's unlikely that many French people would find our US system somewhat problematic.

00;54;26;27 - 00;54;27;24

Fred Davis

They find it curious.

00;54;28;00 - 00;54;29;04

Jonathan Hafetz

Curious.

00;54;29;06 - 00;54;43;13

Sam Bettwy

I would just add one thing, I don't know, Fred, if you have a comment on this, but again, when I'm looking at the players, I don't know if it's significant or not, but we don't see the prosecutor or the victim's counsel do anything. In this case, do we?

00;54;43;15 - 00;55;11;20

Fred Davis

I don't think so. Prosecutors in our country have more discretion and power than any other country I can think of other than purely authoritarian ones. And there's so many things that a prosecutor can do in our country. They don't have to justify which under the principle I mentioned earlier in Europe, where basically nothing can happen that really affects freedom or dignity or privacy without a reason being given for it is unacceptable.

00;55;11;22 - 00;55;32;27

Fred Davis

So that there are frequently, cases where the prosecutor is just not the leader. Now, as I mentioned, this gentleman who's the national financial prosecutor in France is changing that not so much by his courtroom demeanor. Always won some big cases. He's taken big banks to trial. He had a several billion dollar verdict, in France a couple of years ago, which is a big deal.

00;55;33;00 - 00;55;49;02

Fred Davis

But he's basically taken the lead in saying, I'm going to push forward. And I want you folks out there, particularly you big corporations, to get into the American model of thinking about cooperating with us. And that is a radical transformation that is making progress.

00;55;49;04 - 00;56;12;01

Jonathan Hafetz

Well, I want to thank you both for coming on the podcast for talking about chorded. It's a really interesting and good film, and I think it's a window into a lot of the issues we're talking about. And just for sharing your expertise on French criminal procedure, but also comparative criminal procedure and why it's important generally, and also why it's very helpful way to look at films and to compare films.

00;56;12;01 - 00;56;14;14

Jonathan Hafetz

So thank you Fred. Thank you Sam.

00;56;14;16 - 00;56;16;26

Sam Bettwy

Thank you Jonathan. Good seeing you again Fred.

00;56;17;02 - 00;56;18;05

Fred Davis

Always a pleasure. Both of you.