Written by guest blogger Judge McGahey
Colorado 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. 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.
That privilege is at the heart of I Confess (Warner Brothers, 1953), directed by Alfred Hitchcock, and starring Montgomery Clift, 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. 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.
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.
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.
 The same right is guaranteed in Article II, Section 18 of the Colorado Constitution.
 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.”
 Among many other great roles, Clift played the mentally challenged Rudolph Peterson in Judgement at Nuremberg.
 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.
 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.
 Mark Caldwell and I have used Willie’s initial interview with Harry in the hospital in a number of our ethics presentations.
Earlier this year, we told you that we received a generous grant from the International Society of Barristers (ISOB), which provided tuition assistance to enable public service lawyers from across the country to attend a NITA Trial Skills program of their choice.
A portion of that grant funds our annual Craig Spanenberg/John Liber Scholarship. We spoke with Moisés Ceja and Jerry Friedman, two Spanenberg/Liber recipients who, with ISOB support, each attended a NITA program last month. Here’s what they had to say about the experience.
The Building Trials Skills was invaluable. It helps hone skills that you tell yourself you need work on but usually absent is the forum to do so. I never took Trial Advocacy in law school. I felt like this was a semester course condensed into one week with more instructors than you can count, all ready to provide thoughtful feedback. I returned back to work with much more confidence in my trial advocacy skills. I will undoubtedly be applying for future NITA programs. Given that I work for a non-profit with limited means I hope to again be able to receive a scholarship through NITA.
Oregon Law Center
I am a new attorney without a war chest so finding funds to help develop my advocacy skills is always difficult. Brief CLE programs cannot offer the depth that NITA’s programs offer.
My practice is devoted to social justice issues. Currently, most of my cases prosecute civil rights claims against local, state, and federal government, such as two separate cases with clients who were kept in jail for more than 800 days each as pretrial detainees while the arresting police officers knew they were innocent. One of them was kept in solitary confinement for more than 14 months. This latter case is defended by four attorneys with close to 100 years of collective experience, far beyond the three years I’ve been in practice. The NITA program has accelerated my understanding of trial procedure far better than I could have understood spending equal time observing actual cases or fumbling through YouTube. NITA’s hands-on approach including critical feedback by experienced practitioners is simply invaluable.
I owe you a debt of gratitude.
Law Office of Jerold D. Friedman
We send our deepest appreciation to the ISOB for making these opportunities possible.
Our friends at Campbell University School of Law, host site of our Building Trial Skills program each spring in North Carolina, are seeking applicants for a full-time, tenure-track faculty position for its downtown Raleigh campus. Details about the position and application process are below. Please forward this blog post to anyone you know who might be interested.
Assistant Professor of Law
CAMPBELL UNIVERSITY SCHOOL OF LAW invites applications for a full-time, entry-level, tenure-track faculty position to teach in the areas of criminal procedure, trial advocacy, civil procedure, and related subjects.
Candidates should have excellent academic credentials, practice experience in one or more of the relevant subject areas, and the potential to become an outstanding classroom teacher, mentor to students, and a productive scholar.
The law school is located in downtown Raleigh, North Carolina, a location that provides its approximately 420 students with a wealth of opportunities that enrich their educational experience. Raleigh and the Research Triangle are repeatedly cited in national surveys as one of the best areas for starting a new career or business, for excellence in education (from public schools to post-graduate studies), and for enjoyable quality of life.
Consistent with Campbell University’s overall mission (available at http://www.campbell.edu/mission/), the law school is a highly demanding, purposely small, intensely personal community of faculty and students whose aim, guided by transcendent values, is to develop lawyers who possess moral conviction, social compassion and professional competence, and who view the practice of law as a calling to serve others and to create a more just society. To that end, the law school has adopted the following distinctives: (1) we offer an academic program that is highly demanding; (2) we bring together the theoretical and practical to produce thoughtful and talented lawyers; (3) we utilize the talents of a faculty that is profoundly committed to students and teaching; (4) we view the practice of law as a calling to serve others; and (5) we offer a Christian perspective on law and justice. More information about the law school can be found on our website: http://www.law.campbell.edu/.
To be considered, an application must include each of the following:
(1) a cover letter of interest specifically addressing the candidate’s unique qualifications for the position; how the candidate can contribute to the University’s mission; how the candidate can further each of the law school’s five distinctives;
(2) an unofficial law school transcript;
(3) a current curriculum vitae;
(4) a representative example of scholarship and/or a research agenda; and
(5) if available, course evaluations for any prior teaching engagements.
Campbell University is no longer accepting paper applications. Please apply online by visiting our website at http://www.campbell.edu/about/employment and clicking on “Apply for this Position” below the description of the position for which you are applying. If you have any questions, or if you are an individual with a disability and need assistance completing an application for employment, contact the Human Resources Department at 910-893-1256 or email email@example.com.
A review of applications will begin immediately and continue until the position is filled. Campbell University is an Equal Opportunity Employer.
Campbell University maintains a continuing policy of nondiscrimination in employment. It is our policy to provide equal opportunity in all phases of the employment process and in compliance with applicable federal, state, and local laws and regulations. Accordingly, the University is committed to administering all educational and employment activities without discrimination as to race, color, sex, sexual orientation, gender identity, age, ethnicity or national origin, religion, disability, genetic information, protected veteran status and any other characteristic protected by law, except where appropriate and authorized by law. This policy of nondiscrimination shall include, but not be limited to, the following employment decisions and practices: hiring; upgrading; promotions; demotions or transfers; layoffs; recalls; terminations; rates of pay or other forms of compensation; selection for training, including apprenticeship; and recruitment or recruitment advertising. Employees and applicants of Campbell University will not be subjected to any form of harassment or discrimination for exercising rights protected by, or because of their participation in, an investigation or compliance review related to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, the Veterans Employment Opportunities Act of 1998, or any other federal or state nondiscrimination law, rule, or regulation. Campbell University also maintains affirmative action programs to implement our equal employment opportunity policy. Employees or applicants who wish to review appropriate portions of these affirmative action programs may schedule an appointment to do so by contacting the Vice President for Business and Treasurer at the Buies Creek campus, during normal business hours.
Reading back through my monthly letters to you this year, I note how actively they engage you and our world around us. They represent NITA’s leadership across the country.
Today I turn the lens around to talk a bit about the home front.
More than 1600 lawyers have already enrolled in our 2016 public regional programs – we organize these programs early and encourage enrollments far in advance to maximize your preparation. Get your spot here.
New program topics now appear steadily every year. Our new approach to creating exciting programs is underway. From our NITA Network of faculty, we select volunteers to work together with me in creating new programs. These trial advocacy teaching stars contribute their creativity, sweat equity, and NITA-expertise to produce new programs that will speak to your evolving needs. Again, stay tuned!
A year ago, we increased the strength of our outreach by appointing experienced NITA staffers as our three Client Relationship Managers. Wherever you live and work, you are in a region that has the special attention of one of these folks. Their purpose is to learn the particular approach of every firm, solo practitioner, agency, law school, and other law practice group in their region. Please reach out to them. You will find them by calling us – or email Wendy McCormack, Associate E.D. for Operations.
How about on-line learning? Many of our programs include on-line videos selected just for your program, and featuring our NITA faculty teaching core principles. You have them as you prepare to stand up and perform throughout the program itself.
How about “studio71”? Our webcasts are both in demand and on-demand! So far in 2016, we have registered 3200 learners to join the live webcasts. Indeed, this audience continues to grow so quickly that we are adding capacity to allow us to take even more than 250 live webcast attendees. What’s more you can view 68 past webinars on demand, on-line here. (But you get to ask questions when you are live!)
In each of these and many other ways, we have expanded and deepened NITA’s prowess over the last four years. While maintaining our busy program and publication schedules, we have worked behind the scenes to groom the talent and leadership, the creativity and innovation, the technology types and capacity, and above all the depth of our awareness of what you need. All of this – and the loyalty of our NITA Network of faculty – make us the place to be in trial advocacy. Our non-profit mission thrives. It does so thanks to a great concept 45 years ago, a very loyal excited Network, and a lot of diligent focus and growth. Thank you to every one of you – you know who you are
Best wishes for a stupendous 2016!
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
Written by guest blogger Judge McGahey
Jack Lemmon and Walter Matthau made ten movies together, most memorably The Odd Couple in 1968. Both of them were Oscar Winners and they were also good friends in real life. But their on-screen partnership began with the movie I picked for this month’s review: The Fortune Cookie (United Artists, 1966), a movie produced and directed (and co-written) by the brilliant Billy Wilder, whom I’ve written about before. The Fortune Cookie is most emphatically not a drama, but is instead a black comedy, featuring one of the sleaziest movie lawyers ever. Matthau plays that lawyer, “Whiplash Willie” Gingrich, the epitome of the ambulance-chasing plaintiff’s personal injury lawyer – and he played him well enough to win an Oscar for Best Supporting Actor.
Lemmon stars as Harry Hinkle, a sideline cameraman for CBS who get run over and knocked out by a player for the Cleveland Browns while working on a game broadcast. Harry wakes up in the hospital and finds out that his brother-in-law, Whiplash Willie, has already filed suit against the league and the player for Harry’s injuries. Harry protests, saying that he’s not hurt and that he wants to leave the hospital. Willie argues with him, urging him to pretend to be injured to rake in a big settlement. Harry is opposed, until it’s suggested that perhaps a monetary windfall would help Harry reunite with his estranged wife, Sandy. Harry agrees – and the manipulations and chicanery begin. These include Harry being injected with Novocain by a dentist on parole, the use of old x-rays of a childhood injury as evidence of Harry’s recent problems, the hiring of private detectives and examining doctors. Sandy does return to Harry, but Harry becomes more and more disturbed by what’s happening, in part because the football player, Boom-Boom Jackson, is wracked by guilt for what he thinks he did to Harry, putting the player’s career in jeopardy. It also becomes clear that Sandy is only interested in reuniting with Harry because of the money that Harry will receive when Willie settles with the insurance company and its lawyers. The movie ends with positive and just results, although not before Willie comes up with one last money-making scheme.
The Fortune Cookie does not show lawyers at their best. Willie Gingrich is an ethical nightmare, to put it mildly. His cynicism, greed and willingness to manipulate the justice system, are, unfortunately, what far too many people think lawyers are like. (The title of this review is how Harry describes Willie.) And the lawyers representing the insurance company are hardly portrayed in a better light. But with all of that, this movie is gut-bustlingly funny in places and, since it’s directed by Wilder and acted by Lemmon and Matthau, artistically first-class as well.
But for all its negative portrayal of lawyers, I still wholeheartedly recommend The Fortune Cookie to you, if for no other reason than to remind you how many good, professional, ethical lawyers we interact with every day, how lucky we are to work with them – and how dedicated we should continue to be to improving the quality of trial advocacy.
 Yes, I know that in real life Hinkle’s first remedy likely would be Worker’s Compensation, with a lawsuit perhaps coming after that. It may surprise you to learn that Hollywood doesn’t always follow real life legal procedure.
 Mark Caldwell and I have used Willie’s initial interview with Harry in the hospital in a number of our ethics presentations.