Wednesday, October 21, 2015

Writing Exercise: Controversia Example

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.

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