Twelve Angry Men (1959) opens in a courtroom where a judge, looking distinctly disinterested, is summing up a capital murder case concerning a boy of mixed race who has been accused of murdering his father. The jury retires. Eleven jurors want a quick conviction. The sole dissenter, an architect played by Henry Fonda in another of his emblematic portrayals of the liberal American conscience, dissents… not because he is convinced of the boy’s innocence as such, but in order that the other members of the jury discuss the case in more detail and they do the case justice.
Without revealing the denouement, the film concerns the many different voices and opinions that constitute jury room discussion. Almost entirely set in the claustrophobic atmosphere of the crowded jury room, the film exemplifies the mindsets that might easily be replicated today in the mundanity of any jury room and on any charge (save its unrepresentative demographics).
Some of the jurors are archetypes of racism and prejudice, others thoroughly disinterested in the task at hand, and one will vote whichever way gets him to a baseball game. We also see jurors who calmly dissect the evidence. Above all, we see a thorough, if at times stilted, analysis of items of evidence.
Twelve Angry Men is a high watermark of American liberal realist cinema and some might find the tone preachy and overly sanctimonious. To some extent it is shop worn, yet it seems to me of universal significance for students as a heuristic tool and reference point for a closing speech; that jurors must filter and assess individual items of evidence in isolation on their strengths and weaknesses, and then consider the evidence holistically to examine whether it is probative of guilt.
Aspects of identification evidence are discussed such as the fleeting glance, obstructed views, the effect darkness has on evidence and the danger of convicting even if the person identified is known to the witness. A compliment to R v Turnbull (1977)!
The film deals in detail with how the jurors are inculcated with prejudices and cognitive and confirmatory bias, as we all are. The legendary US jurist Jerome Frank argues in this context: ‘trial judges or juries are also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the parties to the suit, or the lawyers… Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious biases of trial judges or jurors.’ The film also highlights how witnesses can make factual mistakes in reporting and recollecting what they see.
Although the lawyers are not shown (we are told the lawyer for the defence gave ineffective representation), the barrack room lawyer-juror played by Fonda is, in effect, the representative of the accused. A Dworkinian shining knight, Fonda’s juror tries to arrive at the best answer by treating the boy with equal concern and respect and in a morally principled manner. Let us talk about it, he argues, initially outvoted 11 to 1.
Another view, expressed by academic Michael Naughton (founder-director of Empowering the Innocent, Innocence Network UK and University of Bristol Innocence Project) is that the film is dangerous propaganda that a jury can protect against wrongful convictions. His point is that juries, save in extremely exceptional cases, merely abide by the direction of the judge and legitimate criminal convictions, whether defendants are guilty or innocent. In comparison, alleged innocent victims of wrongful convictions are relatively commonplace. The way that the criminal appeals system and the Criminal Cases Review Commission work renders complaints against the jury system almost invisible, he argues. So his scepticism of the film is primarily reserved for the prejudices of juries.
I do not disagree but consider the alternatives. Geoffrey Robertson QC and others have argued recently for a jury waiver at the election of the defendant, presently a right throughout Canada, some US states and most states in Australia, that those prosecuted should not have jury trial imposed upon them by the state. The National Association of Criminal Defense Lawyers in the US is campaigning for jury waiver in times of COVID-19 in all states.
Shaped by an Irish background and having appeared as a barrister in its Special Criminal Court, similar to the Diplock Courts in the North, I am sceptical about non-jury courts. They can be draconian outposts; conviction courts. With the same initial impetus, they have become embedded, judges hardened and the jurisdiction widened.
There is a larger conversation, too, which is the choice between common law adversarial and continental-style inquisitorial systems. The systematic collation of evidence by a judge aided by a prosecutor building and assessing a file over time is often more effective in getting to the truth, but only if the judge is independent and not subject to influence.
The film has other points of relevance to our day and age, though in Britain the jury system has been undermined by so-called criminal justice reforms which have militated against the safeguards of innocence eg bad-character admissions extended to encompass not just previous convictions but amorphous and loosely defined prior conduct; the beginning of a slippery slope to pre-crime criminality?
Thought crimes once the stuff of science fiction are now increasingly in evidence. In India, thinking an anti-governmental thought is a criminal offence in certain provinces. In Ireland, a suggestion was made that vigorous and hurtful criticism of a politician should be criminalised. This is the criminalisation of mens rea without an actus reus; the criminalisation of intent.
Some have suggested that defendants in sex cases should have to prove their innocence. Such reversals of proof-burdens have not been implemented but I suspect play on juries’ minds. Politically trumped-up charges are now common across the globe. The prosecution for treason of those in Catalonia who legitimately held a successful referendum. Show trials in Russia. More historically, in the US during the Second World War many disgraceful things happened against mixed-race Americans, particularly those of Japanese origin who were detained in concentration camps (in effect nefariously endorsed by the US Supreme Court in the infamous 1944 Korematsu case).
Today, the demonisation of dissidence those of racial, ethnic or political views that the powerful disagree is now on the cards. More to the point, given the way things are going even in the UK and in light of the recent counter terrorism legislation, pre-trial detention or simply internment may replace jury trials. Recently, Home Secretary Priti Patel has suggested that those who represent asylum seekers or ab extenso those accused of a crime are complicit in criminality by representation. This is a bridge too far in the degradation of discourse.
Twelve Angry Men, then, is ultimately a film about democracy and basic human decency, confronting the gorgon’s head of confirmatory bias and that human beings, however imperfect, decide the fate of other human beings equally imperfect. It also has a real passion for the majesty and importance of the law and its doctrines. Let us be careful and watchful. Let us watch the watchmen.
Published on 26 October 2020.