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NITA Movie Review: MILITARY JUSTICE, AGAIN

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Written by guest blogger Judge McGahey

With November and the Veteran’s Day holiday upon us again, I thought I’d go back to movies about military justice for this month’s review. As always when I write on this topic, I confess to having never been in the military, so my knowledge of the process is limited[1]. We’ll start with a movie about a military rebel who was a real person, then we’ll talk about a fictional movie about a real issue, racism, that we still encounter in the justice system.

the_court-martial_of_billy_mitchellWilliam (“Billy”) Mitchell was an American Army officer who was an early and fierce proponent of the value of air power in war; he’s sometimes referred to as “the father of the U.S. Air Force.” At the end of World War I, Mitchell was in charge of all military air combat forces in Europe and was a highly regarded officer. After the war, he advocated strongly for a powerful air force, and he became embroiled in intra-service disputes between the Army and the Navy. Mitchell claimed that defense dollars would be better spent on airplanes than on battleships and, more radically, that bombers could sink battleships with little difficulty. Mitchell was a man who expressed his opinions in blunt terms – and publically. Those blunt and public statements eventually led to his being charged with insubordination and court martialed.

sergeant_rutledgeIn 1955, Warner Brothers released The Court-Martial of Billy Mitchell, which told a somewhat fictionalized version of Mitchell’s story. The film was directed by the great Otto Preminger, and one of America’s iconic leading men, Gary Cooper[2], was cast as Mitchell (which should give you an idea of how the story would go.) Other then or future A-list actors like Charles Bickford, Ralph Bellamy and Rod Stieger were in the cast, too[3]. The movie generally shows Mitchell as a prophet without honor, railroaded by politicians and generals who didn’t possess Mitchell’s vision of what was necessary to keep America’s military strong, perhaps not surprising, since the film was released at the height of the Cold War. The court-martial scenes are especially troubling for lawyers, since it’s clear that Mitchell will not get a fair trial and will only be acquitted if he gives up his public fight for air power. Mitchell will not do that and is, of course, convicted[4], but the ending of the film is intended to show the viewer that Mitchell was ultimately correct about air power and ultimately the winner of his fight.

We’ll next take a look at a John Ford[5] western, Sergeant Rutledge (Warner Brothers, 1960.) The movie centers around an African American cavalry trooper at a fort on the western frontier. The trooper, played by Woody Strode, is wrongfully accused murdering his commanding officer and of the rape and murder of the commanding officer’s daughter. Rutledge is eventually brought to trial before a panel of bigoted officers who will be happy to see him hang. A young officer, Lt. Cantrell (Jeffrey Hunter) is assigned to defend Rutledge and in spite of all the potential for a miscarriage of justice, succeeds in proving that Rutledge is not guilty. The movie’s structure is interesting, since it’s told in flashbacks, which reveal what really happened at any given point in the story.

The movie is, in my opinion, another attempt by Ford to examine issues of racism and prejudice in American society[6], while allowing Ford to tell a story in one of his favorite settings, a cavalry unit on the American frontier[7]. It’s interesting to note that Sergeant Rutledge was released the same year as To Kill a Mockingbird, which features a very similar basic plot – and is also a courtroom drama. Ford’s film is less focused and its trial scenes certainly are not as memorable; you’ll never confuse Lt. Cantrell with Atticus Finch. But the underlying concept of how racism can corrupt the process of seeking justice comes through clearly.

Sergeant Rutledge suffers from some flaws, including some plot turns that make no sense and generally weak performances from the two main actors. Strode was an ex-football player who’s acting is serviceable at best; it’s hard to wonder why Ford cast him instead of Sidney Poitier or Harry Belafonte, who were preferred by the studio. Hunter was a blue-eyed, square-jawed American hero type, who had an extremely checkered career. He had co-starred with John Wayne in Ford’s The Searchers, but really put a crimp in his career by choosing to play Jesus in King of Kings (1961). He ended his career making low-budget movies on Spain and Italy and died at age 42 after falling at his home and fracturing his skull.

The Court-Martial of Billy Mitchell and Sergeant Rutledge both remind us that the principles of justice, farness and due process of law belong in every American courtroom, be it a civilian courtroom or a military one. We are a nation founded on respect for the Rule of Law, and any reminder of that is worthwhile.

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[1] I’d welcome it if any of you with JAG experience want to weigh in on my reviews of military justice movies. So, Mike Roake, Charlie Rose, Chris Behan: be my guest!
[2] See, for example: The Virginian, Sergeant York, The Westerner, Pride of the Yankees, For Whom the Bell Tolls, and most memorably, High Noon. Cooper was a two-time Oscar winner and one of the most popular movie stars ever.
[3] Future TV stars Jack Lord (Hawaii Five –O) and Peter Graves (Mission Impossible) appeared as well – as did Elizabeth Montgomery (Bewitched) in her first movie role.
[4] The actual court-martial board included future WW II commander Douglas MacArthur, who would later say that he voted to acquit Mitchell.
[5] I know Ford had his flaws, but he’s still the director of many of my favorite movies.
[6] The Searchers (1956) was much better at this. As I’ve said before, it’s my favorite movie.
[7] See Ford’s “Cavalry Trilogy”: Fort Apache (1948), She Wore a Yellow Ribbon (1949) and Rio Grande (1950).

Breaking News: Brendan Dassey to Be Released from Prison

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brendan_dasseyBrendan Dassey, one of the subjects of Netflix’s Making a Murderer documentary, has won another important legal battle, as he will be freed on his own recognizance during the appeal, which was filed by the Wisconsin Attorney General after a federal judge overturned Dassey’s conviction in August.

Earlier this year, The Legal Advocate spoke with two members of Dassey’s legal team—NITA Trustee Emeritus Tom Geraghty and the Bluhm Legal Clinic’s Steve Drizin—whom we congratulate once again as this incredible case continues to develop.

Blocking Statutes and the Hague Evidence Convention: Frustration for American Litigants in Transnational Litigation

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written by NITA guest bloggers Samantha E. Scheff and Michael J. Costello, II

Blocking statutes are laws enacted in countries with the purpose of frustrating litigation in the United States by prohibiting the production of evidence in courts in the United States that otherwise have jurisdiction[1]. International litigation in courts in the United States between American citizens and citizens of other countries has become more prevalent through globally conducted businesses and transnational commerce[2]. The purpose of enacting blocking statutes, as they are known, is to force the United States into strict compliance with the procedures promulgated by the Hague Evidence Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (HEC)[3]. The reason foreign countries assert to enact these laws is to avoid compliance with United States discovery processes that are at odds with foreign discovery procedures and policies[4]. The United States regards these blocking statutes as a means of delaying litigation, barring access to evidence, and frustrating their legal system[5]. This article discusses the HEC and how American courts and lawyers deal with it.

The HEC was negotiated in 1970 to avoid countries from frustrating one another’s national sovereignty[6]. The HEC is a treaty allowing letters rogatory, or letters of request, to be sent from one court to another with the intention of having the foreign court order production of evidence[7]. For the most part, the treaty is concerned with allowing the jurisdiction requesting the evidence to continue to follow its rules of procedure as closely as possible[8].

The United States Supreme Court has firmly established in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa that, so long as personal jurisdiction exists under the Federal Rules of Civil Procedure, the HEC need not be the exclusive or even the first resort used to compel the production of documents or information from a foreign party[9]. The Court also held that a United States court may order the production of evidence even if doing so will violate a foreign blocking statute[10]. The ruling became United States policy—that American national interests will tend to be favored over international ones[11]. However, the rule is not absolute, and courts may employ a balancing test to determine whether they will grant comity to the foreign blocking statute. The balancing test used is taken from the Restatement (Third) of Foreign Relations Law[12]. The factors considered by the court are:

  • the importance of the documents to the litigation;
  • the specificity of the request;
  • whether the information originated in the United States;
  • the availability of alternate means to secure the information;
  • whether compliance with the request would undermine important interests in the foreign state; and
  • the extent to which noncompliance would undermine important interests of the United States.

A minority of jurisdictions, including the Third Circuit, simplified the test to three elements:

  1. prior scrutiny in each case of the particular facts;
  2. sovereign interests; and
  3. the likelihood that such resort will prove to be effective.[13]

Ultimately, the tests are very similar, and it is unlikely that using one or the other will be outcome determinative.

In re Activision Blizzard Stockholder Litigation[14], a state court case in Delaware, is an excellent example of how courts apply the majority balancing test from the Restatement. In this case, shareholders sued a Delaware corporation and its controlling stockholder, a French company, for allegedly breaching its fiduciary duties by transferring over 50 percent of its outstanding shares from the controlling stockholder to the corporation[15]. The shareholders filed a motion to compel discovery, and the French company objected on the ground that French law barred the production of discovery unless it was pursuant to the HEC[16]. The French blocking statute broadly prohibits any form of discovery in France for the use of foreign judicial proceedings, with penalties for disobeying this statute being the possibility of heavy fines or imprisonment[17]. The Delaware Chancery Court applied the balancing test and held that the action would proceed under both the Court of Chancery rules and the HEC[18]. The court found that the documents being requested were material to the case, specific in nature and not overly broad to comply with the HEC, and could not be obtained through alternative means[19]. With multiple business connections throughout the United States, it would make sense for this type of evidence to have originated in the United States, yet there was no definitive evidence establishing whether the documents originated in France or the United States[20].

When establishing whether compliance with the discovery request would undermine interests in France, the court looked directly to the French blocking statute[21]. The French blocking statute was broad and prohibited any person from conducting discovery for the purposes of any foreign litigation without focusing on any specific material or mentioning a French sovereign interest[22]. However, noncompliance would directly undermine Delaware’s interest in effectively litigating internal affairs within its corporations[23]. Furthermore, the French company was involved in many business ventures and had previously submitted to the jurisdiction of Delaware courts, by accepting a director position in a Delaware corporation, and in another suit disregarding blocking statutes where it was beneficial to the company[24]. Balancing these factors, the court gave the French company the opportunity to use the HEC to make a good faith effort to receive the requisite authorization from the French authorities for the discovery by the time the document production would be due in the Court of Chancery case[25]. However, if the process could not be completed by then, the French company was expected to produce the documents or face sanctions from the Delaware court[26]. It is important to point out that when the court was deciding whether to apply the HEC at all, it cited many reported American cases that perceive the HEC as lengthy, burdensome, and inefficient[27]. Further, even if the French company heard back from French authorities in the given time period, if those authorities chose not to comply with the letter of request, the court would then mandate the use the procedures available in the United States’ legal system[28]. This decision is a prime example of how American courts attempt to honor the HEC, but when there is as conflict with the United States legal system, the courts have found ways to support the United States national interest and sovereignty.

The Activision holding and other opinions do not create a bright-line rule governing whether a United States court will uphold a foreign blocking statute[29]. Courts will, therefore, make the determination based on the unique facts of each case using the balancing factors described above. However, it appears that foreign parties may be at a disadvantage, given the Supreme Court’s statement that it will weigh the United States’ interests more favorably than foreign interests[30]. The reality is that the enactment of foreign blocking statutes rarely prevent foreign litigants from having to comply with discovery orders from the Unites States’ jurisdiction. Overall, the courts have discretion when deciding whether to order the production of evidence or issue protective orders in response to these blocking statutes. This discretion began with the decision in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa and continues by the decades of developing case law demonstrating the trend of American courts choosing to use their own discovery procedures[31].

Yet, despite the widespread refusal of American courts to comply with foreign blocking statutes, the Second Circuit has apparently created a way for foreign companies to possibly avoid this result[32]. In re Sarrio[33], S.A. includes dictum stating that American law firms representing foreign companies need not provide documents falling under the scope of blocking statutes[34]. The case involved internal investigations by the SEC under 28 U.S.C. § 1782, which allows district courts to compel persons residing within their district to testify or produce documents for use in proceedings occurring in foreign jurisdictions, which is known as a subpoena duces tecum[35].

The Sarrio court cited Fisher v. United States[36], which recognized that documents that are undiscoverable in the hands of a law firm’s foreign client are subject to attorney–client privilege[37]. It went on to say that this reasoning is applicable to subpoenas duces tecum, because they lie outside the statutorily provided limits granting courts power to compel production[38]. Therefore, assuming the documents are held by the United States law firm for the purpose of legal review, it is likely that the Second Circuit would not compel discovery on the basis of attorney–client privilege. The Second Circuit ultimately does not want a result where documents that would not otherwise be within the scope of a subpoena suddenly fall within that scope simply because they are being used by a United States law firm[39]. Significantly, the bank involved in this case withdrew its objection to production, so the legal significance of this reasoning is dictum[40]. If courts in the Second Circuit choose to follow this approach, foreign companies can avoid violating their home country’s blocking statute by evoking attorney–client privilege.

In addition, banking secrecy laws may be considered a type of blocking statute because they functionally work the same way by including provisions that block foreign discovery. In general, these laws obligate banks to keep customer information private[41]. Banks in foreign jurisdictions are usually structured to ensure that the customer’s information is kept private, such as using pseudonyms for the accounts and insulating bank employees from the information[42]. While banking in jurisdictions such as Switzerland has enjoyed a substantial amount of privacy in the past, the current global trend has been moving toward open exchange of customer information. For example, in a proposed piece of French legislation commonly called “Sapin II,” a newly created anti-corruption enforcement body will have the authority to monitor compliance with the French blocking statute[43]. This could result in a change in the French courts’ reluctance to enforce it[44].

In 2010, the United States Congress passed the Foreign Account Tax Compliance Act (FATCA) in an attempt to curb tax evasion that was enabled by these banking secrecy laws[45]. The law requires reporting by U.S. taxpayers that meet certain criteria, specifically, taxpayers who have foreign financial accounts and offshore assets[46]. Foreign financial institutions are also required to report financial accounts held by U.S. taxpayers[47]. This would include foreign investment banks in jurisdictions where tax evaders have their assets[48].

Another important step in global tax transparency took place in 2014[49], when 101 nations committed to implementing a Common Reporting Standard was promulgated by the Organization for Economic Cooperation and Development (OECD)[50]. This helped ease the burden on financial institutions facing different compliance standards in various jurisdictions, which is credited with an increase of voluntary disclosures[51]. The recent Panama Papers leak may lead to additional pressure being placed on countries to join these types of initiatives. If this trend continues, banking secrecy laws may matter less over time.

To understand blocking statutes, it is important to recognize that the initiative of the HEC was to take into consideration the realities of international relations and ensure that litigation between foreign nations would afford respect for one another in regard to differing legal systems and policies. In large part, these blocking statutes were the direct response to the United States reluctance to adhere to the HEC when dealing with foreign litigants. Many countries with different legal systems view this reluctance to use the HEC, either exclusively or at least as a first resort, as a violation of their sovereignty[52]. Article 12 of the HEC establishes that blocking statutes should effectively prohibit disclosure by including an exception to the mandatory production of discovery requests where a request is offensive to the nation’s sovereignty[53]. Yet, when the United States courts are analyzing these blocking statutes, they are taking many factors into consideration, with the result that these statutes are often unenforced[54].

In an attempt to change the relaxed compliance with these blocking statutes by the United States and France, France is seriously considering more frequently enforcing its criminal sanctions for violations and raising the fines connected with these sanctions[55].

In conclusion, although the HEC is at issue in other countries, the HEC is more heavily litigated in the United States than in any other countries[56]. The United States is obviously a major player in international globalization, and many countries want to be involved with American companies. Yet these companies do not want to be subject to the United States legal system. The United States approach to resolution of disputes is based on zealous advocacy in court, and other countries are extremely against this type of judicial process[57]. The HEC was designed to acknowledgement different methods of discovery in international litigation, but has proven ineffective when it comes to foreign litigants in American courts. Blocking statutes have been put in place as a result of other nations’ frustration with the American courts, but have not had the impact on the American courts’ choice of law that these nations were seeking to attain by enacting of these laws. One way to accomplish more harmony in global business is to promote business contracts that include clauses setting forth both the governing law and the jurisdiction the parties will submit to in the event of legal disputes. Employing these clauses would make it easier to differentiate between actual sovereignty problems and business companies attempting to use blocking statutes as a means of avoiding compliance with the American litigation system. If protecting foreign sovereignty is the ultimate goal behind these blocking statutes, adding choice of law and forum selection clauses in international contracts could help solve the problem of compliance with blocking statutes.

Samantha E. Scheff and Michael J. Costello II are third-year students at Nova Southeastern University College of Law and research assistants to Professor Michael J. Dale.

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[1] Laurent Martinet & Ozan Akyurek, The Perils of Taking Discovery to France, 20 No. 5 PRAC. LITIGATOR 39 (2009).
[2] Foreign Blocking Statutes and Cross-Border Discovery, ARENT FOX (Mar. 10, 2014), https://www.arentfox.com/newsroom/alerts/foreign-blocking-statutes-and-cross-border-discovery#.WAPupjLMyYV.
[3] Id.
[4] Vivian G. Curran, United States Discovery and Foreign Blocking Statutes, 76 LA. L. REV. 1141, 1141 (2016).
[5] See, e.g., Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 542 (1987); In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[6] 28 U.S.C. § 1781; Curran, supra note 4, at 1143.
[7] Bureau of Consular Affairs, U.S. Dep’t of State, Preperation of Letters Rogatory, https://travel.state.gov/content/travel/en/legal-considerations/judicial/obtaining-evidence/preparation-letters-rogatory.html.
[8] James P. Springer, An Overview of International Evidence and Asset Gathering in Civil and Criminal Tax Cases, GEORGE WASHINGTON JOURNAL OF INTERNATIONAL LAW AND ECONOMICS 313 (1988).
[9] See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa 482 U.S. 522 (1987).
[10] “The United States Supreme Court has firmly established that, so long as personal jurisdiction exists, a U.S. court may order the production of evidence even if doing so will violate a foreign blocking statute.” Société, 482 U.S. at n. 29 (1987).
[11] “When there is any doubt, national interests will tend to be favored over foreign interests.” Id. (quoting Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 951 (1984).
[12] RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442(1)(c).
[13] In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 300 (3d Cir. 2004).
[14] 86 A.3d 531 (Del. Ch. 2014).
[15] Id. at 532–33.
[16] Id. at 533.
[17] Id. at 536, 549.
[18] Id. at 541.
[19] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 543–45 (Del. Ch. 2014).
[20] Id. at 545.
[21] Id. at 543–45.
[22] Id.
[23] Id. at 547–48.
[24] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 549–50 (Del. Ch. 2014).
[25] Id. at 550.
[26] Id. at 551.
[27] Id. at 546.
[28] Id. at 551.
[29] See, e.g., In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014).
[30] Société, 482 U.S. at n. 4 (1987).
[31] See id.; In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[32] Travis Robert-Ritter, Using Second Circuit Precedent to Fundamentally Change Multinational Corporations’ Global Foreign Corrupt Practices Act Internal Investigations, 8 B.Y.U. INT’L L. & MGMT. REV. 89 (2012).
[33] 119 F.3d 143 (2d Cir. 1997).
[34] Id. at 146.
[35] 28 U.S.C. § 1782.
[36] 425 U.S. 391 (1976).
[37] In re Sarrio, 119 F.3d at 146-48.
[38] Id.
[39] Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 169 (2d Cir. 2003).
[40] In re Sarrio, 119 F.3d at 144.
[41] G. Philip Rutledge, Bank Secrecy Laws: An American Perspective, 14 DICK. J. INT’L L. 601 (1996).
[42] Id.
[43] Latham & Watkins LLP, French Anti-Corruption Reform Expected in 2016 (April 11, 2016), http://www.lexology.com/library/detail.aspx?g=0477aaee-fcfd-4ab5-92a4-ab35418c75da.
[44] Ozan Akyurek, United States: French Blocking Statute: A Death Foretold?, MONDAQ (Feb. 12 2014), http://www.mondaq.com/unitedstates/x/292340/Trade+Regulation+Practices/French+Blocking+Statute+A+Death+Foretold.
[45] See irs.gov, Foreign Account Tax Compliance Act, https://www.irs.gov/businesses/corporations/foreign-account-tax-compliance-act-fatca (last updated Sept. 13, 2016).
[46] Id.
[47] Id.
[48] Id.
[49]OECD, Global Tax and Transparency: We Have the Tools, Now We Must Make them Work (2016), https://www.oecd.org/forum/oecdyearbook/global-tax-transparency-we-have-the-tools.htm.
[50] Id.
[51] Id.
[52] Mark A. Cotter, The Hague Evidence Convention: Selfish U.S. Interpretation Aggravates Foreign Signatories and Mandates Changes to Federal Discovery Rules, 6 FLA. J. INT’L L. 233, 247–48 (1991) (explaining that Germany, the United Kingdom, and France view the United States’ reluctance to adhere to the HEC as an infringement of their legal sovereignty).
[53] 28 U.S.C. § 1781; Cotter, supra note 52, at 244.
[54] See, e.g., In re Aircrash Near Roselawn, Indiana, 172 F.R.D. 295 (N.D. Ill. 1997) (court refused to issue a protective order in response to a French blocking statutes not only because it was meant to frustrate discovery, but also because it was rarely enforced).
[55] Curran, supra note 4, at 1147–48 (discussing how an “eminent French lawyer and former cabinet minister” advises that both American and French litigants need to take the French blocking statute seriously and that applying it more seriously is a way to establish that the statute is not the sham that American courts perceive it as).
[56] Cotter, supra note 52, at 245.
[57] See Curran, supra note 4, at 1141–42.

October 2016 Executive Director’s Letter: I Want To Talk To You About Money

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Lockwood_KarenWhat I have to say is easily expressed, and I know you already understand its big impact on justice. We need more donations.

  • NITA contributes to public service lawyer training.
  • NITA also provides scholarships to lawyers in financial need for them to attend NITA programming.
  • These funds come from donations to our NITA Foundation and some grants.
  • Our board inspires further donations by allocating additional funds from NITA for its public service objectives.
  • All these gifts are inspiring.
  • But inspiration takes its meaning from the act of someone else who has also been inspired. When we see private, individual or family donation levels increase, we know we are reaching you, and that you are inspired.
  • I am not seeing it increase yet.
  • And so I wish to inspire further. If you are inclined but seek inspiration or information, please call me! 303-953-6801.

The need is as great as ever. We regularly must disappoint program applicants who clearly make a difference in practices serving people lacking access to Justice. Or who are in real sustained financial need. When we don’t have funds, we have to say “sorry” to scholarship applicants. Neither our program leaders nor our applicants like that. I don’t either.

Why don’t we have room? Because the allocation across programs of limited scholarship dollars does not spread far enough.

Now, you know me as a passionate, mission-oriented person. I am as true-NITA-blue as anyone. But I must say “no” to adding “just one more” scholarship applicant to “just this” program. I must give chances to applicants to all of our programs.

I also am a business person and a lawyer who staunchly defends NITA’s renown, its brand, it fiscal health, its future, and — more than anything — the NITA Network.

You are the NITA Network. Please join me. Go talk to friends who are not part of the NITA Network and tell them what you and we do! Donate regularly yourself, this year, or every month. Or calendar your commitment for every quarter. (It is easy to direct your donation online at: www.nita.org/Donate.) You have my promise that donations are treasured and directed wisely to further meet the demand.

We at NITA Central and across the NITA Network have so much else right. Help make us powerful enough to stop turning away scholarship applicants.

Thank you. Go NITA-Blue!

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

NITA Movie Review: When Testimony Is Forbidden

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Written by guest blogger Judge McGahey

i_confess_posterColorado Rule of Evidence 501 tells us that everyone can be called as a witness – except when they can’t be called, either by Constitution, statute, rules set out by the Colorado Supreme Court “or by the principles of the common law as they may be interpreted by the courts of the State of Colorado in light of reason and experience….” That’s pretty broad, isn’t it? We’re all familiar with the United States Constitution’s Fifth Amendment privilege against self- incrimination[1]. But there are other evidentiary privileges that impact trials and hearings every day. The one that made me think of this month’s movie is what was originally known as the priest-penitent privilege, whereby anything told to a priest as part of a religious confession cannot be testified to without the permission of the penitent[2].

That privilege is at the heart of I Confess (Warner Brothers, 1953), directed by Alfred Hitchcock, and starring Montgomery Clift[3], Karl Malden and Anne Baxter. The film is based on a 1902 French play that Hitchcock saw as a much younger man. Hitchcock was raised as a Roman Catholic but had long lapsed from the faith by the time he made I Confess[4]. It is very clear that in spite of his lapsed status, Hitchcock’s upbringing informed much of I Confess. The film was filmed in Quebec City, but that Canadian setting has little to do with the actual action of this movie, although it does provide some wonderfully evocative atmosphere and mood to the film[5].

Clift pays Father Logan, a Roman Catholic priest. Father Logan employs a German gardener, Keller, and his wife. Keller (O.E. Hasse) also works for a crooked lawyer named Villette. Villette is murdered and two girls see someone wearing a priest’s cassock leaving Villette’s house. In the confessional, Keller confesses to Father Logan that he, Keller, committed the murder, knowing that the priest cannot reveal that information. Inspector Larue (Malden) calls Father Logan in for questioning because of what the two girls saw and discovers a connection between Villette and Father Logan through the priest’s long-ago pre-seminary girlfriend (Baxter.) Father Logan adamantly refuses to discuss anything with Larue, who has the priest arrested and charged with murder. Father Logan, staunchly remaining silent, goes to trial in front of a jury. Because this is Hollywood, you can probably figure out how the trial ends, although Father Logan has one more priestly interaction with Keller in the film’s closing moments[6].

I Confess does not rank with Hitchcock’s greatest films; it doesn’t come close to Vertigo, Rear Window, or North by Northwest. But the interplay between religious dogma, evidentiary privilege, and the law’s stated quest for truth make it a fascinating movie to watch.

And we know that evidentiary privileges can have substantial impact on real-life cases. Recall the case from several years ago where two public defenders in Chicago, believing themselves bound by the attorney-client privilege, didn’t disclose that they knew who the actual killer was when another man was accused and convicted of murder. That wrongly convicted man served twenty-eight years in prison.

Make you think? I hope so.

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[1] The same right is guaranteed in Article II, Section 18 of the Colorado Constitution.
[2] This privilege is codified in C.R.S. 1973, section 13-90-107(1)(c) and is broader than the “traditional” idea of Roman Catholic confession. That section reads: “(c) A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.
[3] Among many other great roles, Clift played the mentally challenged Rudolph Peterson in Judgement at Nuremberg.
[4] There is some evidence that Hitchcock had mass celebrated at his home, made a confession and received last rites near the time of his death in 1980. A funeral mass was celebrated after his death.
[5] Fr. Trent Fraser, my pastor at St. Michael and All Angels Episcopal Church, is a big fan if I Confess, not just because of the theological aspects of the film, but also because he’s Canadian.
[6] Mark Caldwell and I have used Willie’s initial interview with Harry in the hospital in a number of our ethics presentations.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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