• J. Duncan (LLM Student)

FICTION vs. FACT: Real Law in To Kill a Mockingbird


"Mockingbirds don’t do one thing but make music for us to enjoy . . . but sing their hearts out for us. That’s why it’s a sin to kill a mockingbird"*

Warning: When referring to the movie, the blog below refers to the sensitive language used in the movie. This includes racial slurs and allusions to sexual and non-sexual violence.

Classic courtroom dramas engage us all. These movies portray the courtroom as a fascinating place where skilled lawyers never ask meandering questions or stumble over their words. The characters of the lawyers are often highly developed and is usually what drives the movie forward to an often dramatic conclusion. Who can forget the climactic scene in A Few Good Men,1 in which Colonel Jessup, played brilliantly by Jack Nicholson, shouts back to the Military defence lawyer, Lt Kaffe, played by Tom Cruise: “You can’t handle the truth!”?

Unfortunately, though, if the “real world law”2 were superimposed over the fascinating court scenes, the modified movie would be much less compelling and even a bit dull. Thank goodness that creative licence is taken to keep the court room scenes as thrilling as they would otherwise not be. Take for example, the movie To Kill a Mockingbird.3

The film follows the days of Atticus Finch, a lawyer, and his two children, Jem and Scout. The movie is set in Alabama during the depression, when racism was endemic. Not so for Atticus. One evening while he was sitting on the outdoor swing, the judge came and asked him whether he, the judge, could appoint him to represent Tom Robinson, a black man charged with raping a white girl. He agrees without a second thought. When his daughter asks him how he can defend a n-----, he replies, with his chest uplifted, “I was appointed to represent this man and that is what I am going to do.”

Later at school, some children taunt Scout about her father’s client (remembering, of course, this is Alabama during the depression.) Atticus, as a good father and a good lawyer, subsequently has this exchange with Scout:

“There’s been some high talk around town to the effect that I shouldn’t do much about defending this man. It’s a peculiar case – it won’t come to trial until summer session. John Taylor was kind enough to give us a postponement…”

“If you shouldn’t be defendin’ him, then why are you doin’ it?”

“For a number of reasons,” said Atticus. “The main one is if I didn’t, I couldn’t hold my head up in town …. and I couldn’t even tell you or Jem not to do something again.”

On a good day, criminal defence lawyers similarly feel pride in what they do, which is often difficult after being a called a crook or a shark or bottom feeder. Many lawyers, in fact, feel it is an honour to defend the downtrodden – just as Atticus Finch does.

Half of the film (the first hour) elapses before the courtroom part of the film, but that part is, not surprisingly, the most interesting to lawyers. Of course, the screenwriter takes creative licence; for example, all of the witnesses are sitting in the front row, and the girl’s father testifies first, followed by the complainant, whereas in the real world, there would be an order excluding witnesses, which means the witnesses would be asked to leave the courtroom so they can’t hear each other’s testimony before theirs are given. This is, however, a minor deviation from what would be true in a real court situation. As we shall see, there are far more significant differences as the film proceeds.

Throughout the film, one is struck by the sheer elegance of Atticus’s cross- examinations. He draws out evidence gently, but doesn’t connect it with the other parts of the case, leaving that part to argument or for the jurors to make the connection together in the jury room. For example, in an attempt to undermine the father’s contention that his daughter’s physical injuries were caused by the accused, Atticus imperceptibly moves the father to confirm that, yes, his daughter was indeed hit on her right side, and she had fingertip bruises all around her throat, facts that Atticus ultimately uses to suggest the father’s culpability.

It’s at the end of his cross examination where Atticus is at his best. He asks the father whether he can read and write. When the father replies yes, he is handed a pad of paper and is asked to write his name on it, which he does. It first appears that whether he is literate or not is significant in some way, but it isn’t. Rather, it is significant for another reason. With this exercise, Atticus, in a sleight-of-hand way, demonstrates that the father is left-handed. Atticus could have just asked, but the cleverness of his examination would be lost.

Atticus resists the almost irresistible urge to point out that injuries on the right side of someone’s face, just like those on his daughter’s face, are usually caused by a left-handed person. As tempting as that would be, he might get an answer that he doesn’t expect.

The best example of the danger of asking that one question too many is often attributed to Clarence Darrow, an American criminal lawyer. Whether it was Darrow or not, the anecdote goes like this: His client was charged with biting the complainant’s nose off. The defence counsel carefully developed his approach and without emotion had the complainant agree that the witness was far away from the accused and his victim and that the lighting was poor, thereby confirming that the witness’s opportunity to observe was limited. Now, unable to leave the matter alone, just as Atticus would have, the defence lawyer asked, with much aplomb, “So how on earth were you able to see my client bite off the victim’s nose?” The witness replied, “I didn’t see him bite it off, I saw him spit it out.”

But Atticus never makes that mistake. There is so much elegance and subtlety in the way Atticus builds his case, revealing no emotions at all. He gracefully lets the evidence float from the witness. He deliberately leaves the dots unconnected.

When it becomes time for Atticus’s cross examination of the complainant, he asks her whether her father ever hit her. “No,” she replies. “Not even when he has been drunk?” She denies it. Despite the complainant’s negative answers, the impression that her father has done so remains. Atticus then appeals to her sense of propriety, and she agrees that the accused had only been inside her gate once, to chop tinder or fix a door. Later on in her cross-examination, however, he lures her into agreeing with him that, in fact, the accused had been inside the gate many times. The complainant becomes flustered and confused about what she had just agreed to: a southern white woman, of this era, allowing this black man into her home...her credibility now left in pieces.

At the start of the accused’s examination, Atticus throws a glass to him, asking him to catch it, which he does with his right hand. Atticus asks him whether he could catch it with his left hand. “No,” the accused replies – because of a farming accident, his left arm is not functional. Atticus leaves alone the connection between this evidence and the contention of the complainant and her father that the assailant had left fingertip bruises all around her neck, which would be impossible with only one hand; a lesser lawyer wouldn’t be able to resist drawing the straight line between those two facts. To describe Atticus’s style as subtle would be a gross understatement.

Atticus necessarily brings out two ultimately damaging pieces of evidence. First, he asks the accused how he felt about the complainant, and he replied that he pitied her, without a family and alone in the house. The courtroom reacts with sheer indignation that a black man would ever pity a white woman. Of course, it only gets worse when Atticus asks the accused what happened just before he was accused of rape. He testifies that the complainant asked him to reach up to get a box, which the accused couldn’t see. He then describes how the complainant grabbed him around his legs, asking him to kiss her. The courtroom reacts with shock and incredulity, as does the jury. Both pieces of evidence support Atticus’s narrative, but the town cannot accept it because of their prejudice.

At the conclusion of the trial, belying his calm demeanor during the proceedings, Atticus passionately addresses the jury, including the plea, “For the love of God, do your duty.” After the recess, the jury returns, predictably, with a guilty verdict. Atticus is certain that they would win on appeal, but the appeal never takes place. All that it left is Atticus’s grief.

The trial proceedings in the movie present an elegant demonstration of nearly perfect examinations; the viewer is left spell bound. In the real world, however, this trial would have proceeded in an entirely different way.

First off, regarding Atticus’s appointment, a judge would never have spoken about a case outside of the courtroom and certainly not without the presence of the prosecutor. There are never “off the record” conversations between the judge and counsel. Not properly at least.

The biggest “real world” problem in the movie, however, can be defined by looking at an old English case: Browne v Dunn.4 This rule that emerged from this case compels a cross-examiner to put all of their known facts and theory to the witness before the defence calls its own evidence, allowing the witness to react to the suggestion and explain themselves. The purpose of this rule is to produce a fairer result, but if it had been applied to a movie like To Kill A Mockingbird all the drama and suspense would be lost.

For instance, in that movie the theory of the defence is that the victim attempted to seduce the accused and the father walked in and found out about it. In his rage, the father, perhaps drunk, beat his daughter on the right side of her face, with his dominant left hand. Also, the father leaves a ring of fingertip bruises around the victim’s throat, which we know could not have been left by the accused, who had only one functioning arm. Perhaps to explain the victim’s injuries, and to restore propriety, the victim and her father allege rape.

Also, when Atticus is cross-examining the father, he would not, in a real courtroom, have been able to leave the impression that the father beat his daughter, perhaps after finding out about his daughter’s attempted seduction. He would have had to put the allegations directly to the father in such a way as, “I suggest to you, witness, that drunk or sober, you have beaten your daughter in the past and on this occasion you beat her again and you caused her injuries.” The father would then deny it incredulously, assuring the jury that he did not.

Additionally, Atticus would have had to suggest to the father that the reason he beat his daughter, something the father had already denied, was because he found out about his daughter’s behaviour with the accused. Again, likely his response would be loud and emphatic…and convincing.

If the real law were superimposed on the film, then, Atticus would not be able to insinuate conclusions; he would have to put the conclusion to the witness directly. The courtroom watchers might complain that by accusing the father of wrongdoing, he was on trial, not the accused.

Now Atticus’s cross-examination of the victim would have led to a similar observation by the courtroom watchers: who is on trial anyway? In a real trial, Atticus would have had to suggest to her that in her testimony, she had lied about the number of times the accused was inside her gate and, in fact, was in her home. She would also be confronted with the fact that she lured the accused into her house to reach up to get a box that wasn’t there. Atticus would then have had to suggest to her that she was the one who had tried to seduce the accused and that he never raped her, no doubt astonishing the courtroom that such a suggestion could be made.

Finally, Atticus would have had to accuse her directly of lying about the rape and making up the story to explain the injuries her father had left on her body. One could only imagine what her emotional responses would be in the context of the film: admitting the truth of her dishonesty would be impossible because she then would be forced to admit to attempting to seduce a black man.

Thus, by the time Atticus called the accused to the stand, the jury would have had already heard the story and heard it denied passionately by the prosecution’s witnesses, if Browne v Dunn was in effect. Atticus’s examination would have be bereft of any subtlety and, instead of being elegant, he would appear clumsy and awkward.

Of course there is one last thing that would be different if this was real life: although in the movie we heard Atticus’ final address, since he called the accused, the prosecutor would have addressed the jury last, which meant that the prosecutor could say almost anything he wanted about Atticus and the accused, without Atticus having the right to reply.

So in the real world, the verdict would likely be the same, but the trial would be duller than the movie is, and the elements of Atticus’ conduct during the trial, his elegance and subtlety, would have been swept away. But fortunately for the audience, we don’t have to superimpose real world law on it, and we can enjoy it as the masterpiece it is.

* Chapter 10 in Lee, Harper. (2006). To kill a mockingbird. New York :Harper Perennial Modern Classics,

Endnotes

1 Reiner, Rob et al. A Few Good Men, ed (United States: Columbia Pictures, 1992).

2 By “real world law” I mean that I will only be applying Canadian law.

3 Harper Lee & Horton Foote. To Kill a Mockingbird, ed (United States: Universal International Pictures, 1962).

4 Browne v Dunn (1893) 6 R 67 (HL).

#ToKillaMockingbird #Youcanthandlethetruth #AtticusFinch #ClarenceDarrow

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