For my rhetoric classes, one of the writing exercises we do is called a controversia, a hypothetical court case that requires students to prosecute or defend one side or the other. There are plenty of examples from the Classical period in both Seneca and Quintilian, but also Libanius and Hermogenes. These cases are often shocking and surprising to my students, and their hypothetical nature allows the writers to set up the details so as the challenge the argumentation skills of the young rhetoricians.
One modern hypothetical case has proven very interesting and helpful to the students, particularly so in examining the nature of witness testimony and physical evidence.
Twelve Angry Men is a television drama written in 1954 by Reginald Rose, and made famous by the film version of 1957 where Henry Fonda plays the lead. Most of my students are unfamiliar with the film, and because the film examines the evidence of the case in some detail, it offers a great opportunity for the students to argue the case.
I write up the facts of the case in no particular order and give it to the students with instructions to write a prosecution or defense of the nineteen-year-old young man using the classical, six-part essay (introduction, statement of facts, division, confirmation, refutation, conclusion). Here is an example I've done as model to offer them after they've completed their own.
Twelve Reasonable Men
Facts speak for
themselves, so it is said. The fact is, that the knife the defendant bought is
the same kind found in his father’s chest. The fact is, that the defendant
quarreled with his father the day he was killed. The fact is, that the
defendant’s alibi is uncorroborated. The truth, however, is that the facts in
this case do not speak for themselves, but are rather spoken for by the
prosecution and its witnesses; witnesses whose testimony is not to be trusted,
as you will soon see. But more meaningful are the twin factors of the nature of
the charge and the standard of proof that justice demands for bringing
conviction. The defendant is accused of murder in the first degree, and not
just any premeditated murder, but patricide—the murdering of one’s own father.
I need not remind you of how difficult a task it is to take a life, nor
especially the life of a parent, nor especially of a parent upon whom a child
depends. What I must remind you of is that you must be convinced beyond a
reasonable doubt that the defendant is guilty—sure beyond a reasonable doubt
that this nineteen-year-old boy, this Johnny Jr., not only could have killed,
not only wanted to kill, but that he actually did kill his own father. I am
confident that with your faithful consideration and by your powers of
discernment you will find the defendant innocent of this charge of murder. You
are, after all, reasonable men.
The timeline of
events for the father’s murder can be put briefly. Around eight o’clock Johnny
had a quarrel with his father. His father struck him twice, and Johnny, visibly
upset, left the house to blow off some steam. He had promised a friend to pick
up a knife to replace one he’d lost, so he stopped by the pawnshop before it
closed. Johnny was still sulking from the argument, so, deciding on a place
best suited to be left alone, he went to the theater to sit alone in the dark
and pass the time. He didn’t care what was showing, because all he wanted was a
place to be alone and think. By the time the flick was over, Johnny was
confident that his father would be asleep and he could go home and go to bed
without being bothered. Somewhere between buying the knife, going to the
theatre, and coming home, the knife fell through a hole in Johnny’s pocket.
When Johnny arrived to find the police taking out his father’s body, he went
into shock. The next thing he knew he was sitting a in a jail cell and being
accused of killing his own father.
There are two
major issues you must consider in order make the right judgment in this case.
First, although the prosecution has produced several witnesses, none of them
can be consider reliable beyond a reasonable doubt. Second, there is no way to
directly tie the murder weapon to the defendant. Without a credible witness to
place Johnny at the scene of the crime, and without firm proof that the murder
weapon was ever in Johnny’s possession, there is simply no good reason to
conclude that Johnny had anything to do with the murder of his father.
Let’s consider the
several witnesses, in order of importance. First, there are the two neighbors
who heard Johnny’s quarrel with his father, and who saw Johnny leave the
apartment upset around 8 o’clock. While the prosecution wants to use these
witnesses to establish Johnny’s motive, I’d like to show you why the exact
opposite is the case. Johnny’s criminal history is composed of a series of
impulsive actions. Johnny is not a calculating youth, but an impetuous one. He
responds immediately to stimuli: if he is attacked, he fights or flees. The two
witnesses admit, that after Johnny was hit, not once, but twice, by his father,
his reaction was to leave the apartment. Had Johnny truly wanted to respond
with murderous violence to his father, it would have been at the very moment
his father struck him. Instead, we see Johnny living out the same pattern he
had known since his youngest days: a disagreement with dad turns into an
argument, an argument escalates into shouting, the shouting turns into a
beating of the son by the father, and the son goes away to sulk and recover.
Dozens of times has this patterned occurred, with nothing particularly special
about this time to “tip Johnny over the edge” as the prosecution argues. No,
these witnesses show that Johnny was not going to retaliate. Not only this, but
they corroborate Johnny’s story that he left the apartment—he was not seen on
the premises again, until he was arrested.
But, you may ask,
what about the man downstairs, who supposedly saw Johnny running from the scene
of the crime immediately after his father’s body hit the floor? Let’s think
about this man’s testimony more carefully, shall we. This kind old man was
lying in bed, two rooms and fifty-five feet away from the door from which he
testifies he saw the defendant. Fifty-five feet in fifteen seconds, gentlemen: that
is the time this old man gives for getting out of his bed, grabbing his two
canes, and making his way across two rooms to see—beyond a reasonable
doubt—Johnny running down the stairs. The distance from where Johnny’s father
fell to the door and past the old man’s door is about the same distance as the
old man’s fifty-five feet. Are we to believe that a nineteen-year-old boy,
fleeing from a murderous crime, would pace himself equal to an elderly man with
two canes rising from bed in the middle of the night to investigate shouts and
noises from upstairs?
Ah, you say, but
even if he only saw the back of the killer, he heard his voice and could put
that voice with that fleeing body with confidence. Could he now? In bed, asleep
or nearly so, he hears someone shout, “I’m gonna kill you!” Through a ceiling
and across a room (as the father’s body was not found directly above the old
man’s bedroom) this old man is supposed to have distinguished Johnny’s voice?
Doubtful. Even if Johnny had been in the room with his father, could the man
rightly be believed to have distinguished whether the voice was not the
father’s!? I’m sure some of you have had the experience of calling a friend on
the phone and think you’re talking to him, only to realize that it is his son, or
his father, or his brother. If a telephone conversation can be mistaken, could
not a shout through a ceiling whilst sleeping be mistaken for someone it is
not? It could have been the father crying out against his assailant, for all we
know. But that’s not the real kicker. We have the woman across the street who
testifies that there was an elevated train passing by in the very moment when
the father is being stabbed! Could this old man have truly heard clearly the
voice through the ceiling and over
the roar of the elevated train? Surely there is good reason to doubt this
possibility, gentlemen.
But wait, you say,
what about the woman across the street. She saw
the defendant strike his father with the knife, and she’s known the family for
years and years. But wait a moment. Let’s not be so hasty. This woman, like the
old man, was lying in her bed, and while she was not asleep, is it very common
for someone who is wishing to sleep to wear her bifocal glasses to bed with
her? Would she not leave them on the nightstand? If she was not wearing them,
it would be impossible for her to distinguish clearly who was in the apartment.
Having known the father and son for years, she would naturally assume that two
figures, one perhaps somewhat taller than the other, were father and son. But
supposing the assailant was not the son, though shorter than the father? Could
she be trusted to tell the difference in the dead of night without her glasses,
not expecting to need to identify anyone later? But let us suppose she had her glasses
on. Even someone with perfect eyesight would have trouble distinguishing the
identity of someone across the street, in the night, through the windows of the
passing elevated train, even if you were concentrating on trying to find
something, rather than simply happening to look and see activity somewhere off
in the distance beyond. Gentlemen, what we have here are two very kind people,
who are no doubt very sympathetic to the victim, and who want to see justice
served and feel that their neighborhood is safe once more. But all the good
intentions in the world can’t make error into truth, nor clear away a great fog
of doubt by wishful pleading. You are reasonable men, and reasonable men must
reasonably doubt the accuracy of these witnesses’ testimonies.
But there is one
more witness with whom we must deal, and he is tied up with the second issue
you must consider carefully; the identity of the murder weapon. There is no
disputing the fact that the shopkeeper sold Johnny a knife. There is no
disputing that the knife the shopkeeper sold was of the same kind as the one
found in the victim’s body. There is no cause to bring shame upon this honest
shopkeeper for his honest testimony. But what does his testimony amount to, in
the end? This honest shopkeeper has admitted that he does not recall seeing any
gloves on Johnny’s hands when he bought the knife. Johnny must have held the
knife to put it into his pocket. His fingerprints would have been on the knife
somewhere. Yet the murder weapon had no fingerprints on it. “But he could have
wiped them off!” you say. Perhaps, but the time it would take to wipe the knife
and make it down the stairs in the time testified to by the old man does not
match well with what the prosecution would have you believe. Either the assailant
didn’t have time to wipe the knife, or the old man isn’t to be trusted.
Besides, if the killer had forethought enough to wipe the knife, why wouldn’t
he have simply taken it with him!? It is more plausible to believe that the
actual killer wore gloves. The witnesses who saw Johnny leave the apartment at
8 o’clock didn’t mention gloves on Johnny. The shopkeeper said nothing about
Johnny wearing gloves. No gloves were found on Johnny when the police took him
into custody. No gloves were discovered in the apartment. Without gloves and
without fingerprints, there is no good reason to doubt Johnny’s testimony that
he lost the knife he bought between the time he bought it and the time he came
home. The clothes he wore that day have a hole in them large enough for the
knife to have fallen through. There is reasonable doubt—in fact, it would be
unreasonable not to doubt—that Johnny ever possessed the knife that was used to
kill his father. As a poor boy he couldn’t afford the sort of knife that is
rare, but only those that are a dime a dozen and can be purchased from any
local pawn shop for miles around. We must not let any prejudice against Johnny
cover the enormous holes in the prosecution’s case.
Before closing,
let me address one argument that the prosecution has raised against my client’s
testimony, which I’ve not yet covered. The prosecution seems terribly bothered
that no witnesses could place Johnny at the movie theatre and that Johnny
couldn’t remember the movie he watched. But let’s put ourselves in that movie
theatre for a moment. How often do you go to a movie theatre to memorize the
people who happen to also be there? Yeah, you might recall someone who looked
out of place, but a normal looking kid like Johnny? Would he leave any
impression on your mind? Would you be able to pick him out of the rest of the
teenage boys that happened to be at the same flick in the darkness of a theatre
in the dark of night? And why should Johnny be expected to recall the movie he
saw? He didn’t go to the movie because he had been anticipating going out all
week. He’d just got beaten (again) by his abusive father and needed to find
some release. I don’t know about you, but I’ve had my pop hit me a time or two
and you can bet I wasn’t thinking about what else was going on around me. I was
fuming and sulking and wondering why I deserved to be knocked around. I
couldn’t tell you what day it was I got hit, much less what I did or who I saw.
All I knew was raw emotion, and my dad wasn’t the kind of guy to take it out on
me day after day like Johnny’s dad. My weeks weren’t endlessly strung together
with multiple shouting matches punctuated by punches to the face.
Gentlemen, the
bottom line is that this boy, this poverty-stricken, broken-down, and too-often
abused boy, has been dragged into this courtroom with nothing left to him but
his innocence. He lost his mother and his good name when he was just a little
kid. He may not have loved his dad very much, but all they had was each other,
and now Johnny doesn’t even have that to his credit. All Johnny has is his
innocence. Only you can ensure that Johnny keeps that. Only you can ensure that
Johnny has a chance to live out what life he has with some scrap of dignity
left, some lingering hope that there is a God in Heaven who isn’t just out to
crush him like his own dad did day after day. No one is here today asking you
to call Johnny a saint, to think him an upstanding citizen, to call him your
friend. You aren’t being asked to judge whether or not you’d like your daughter
to hang with Johnny, or whether you’d like him to show up at your church
social. No one is asking you to believe that should you let Johnny walk out of
here that he won’t someday wind up in trouble again. You aren’t here to judge
Johnny’s past crimes or his future ones. All you need to decide is whether you
are willing to take a man’s innocence away on testimony and supposition that
would cause you outrage if someone brought it against you. All you need to
decide is whether or not you can be twelve reasonable men.