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November|December 2004

Elsewhere

Judges as film critics, the power of saying you're sorry, and other ideas from the nation's law reviews.

THE BIRDS

Marvin Carpenter was a goldfish farmer who bred almost 2 million goldfish per month. His 450 acres of ponds attracted the attention of migratory birds like egrets and herons. To protect his product, Carpenter, whose membership in the Audubon Society apparently had lapsed, took a rather drastic step. He hired hitmen—"birdmen," the Ninth Circuit would later call them—to shoot the birds on sight. Federal marshals estimated that the birdmen, in violation of the Migratory Bird Treaty Act, killed thousands of birds over a five-year span.

While investigating Carpenter's wading bird holocaust, federal marshals created a 90-minute film, capturing on tape the "bird pits" in which their bodies were disposed of, as well as an incinerator Carpenter built to destroy other bird remnants. As Jessica M. Silbey reports in a new article, the film was gruesome: "It showed dead bird carcasses, decomposed bird remains, bird feathers, and charred bird parts." A federal trial court admitted the film as evidence and when Carpenter appealed his subsequent conviction on the grounds that the film's prejudicial effects outweighed its probative value, the Ninth Circuit rejected that claim and affirmed the lower court's decision.

In her article, entitled "Judges as Film Critics: New Approaches to Filmic Evidence," Silbey cites the Carpenter case as proof of the judicial system's inability to evaluate such evidence. The appellate court in Carpenter reasoned that the film merely corroborated other evidence already admitted at trial—testimony by federal marshals and still photography of the avian massacres. But Silbey scolds the court for its assumption that "the film requires no testing for its trustworthiness or its point of view." She would have had the court explore the film for prejudice: Did it have an implicit or explicit narration? From whose perspective was its story told? How was it edited?

Silbey believes that even films she calls evidence vérité—including those as seemingly objective as surveillance camera footage—need to be evaluated as would a witness. "Just as no witness is infallible," she writes, "no film is singular in its meaning or significance." Silbey's article is heavy with film theory supporting her position that the Carpenter film's formal qualities, which were ignored by the court, might have impugned its objectivity. She makes a compelling case that courts are often too trusting of the medium. It may be a while, however, before Cahiers du Cinema joins the Supreme Court Review on judicial coffee tables. University of Michigan Journal of Law Reform, Volume 37, Number 2

TO ERR IS HUMAN (AND THAT'S OK)

Carl Gugasian, the "Friday Night Bank Robber," is widely considered to be the most successful bank robber in American history. In 50 robberies, which took place over the course of 30 years until his arrest in 2002, Gugasian stole some $2 million. When he was finally caught, it was not at the scene of a crime but at the Philadelphia public library, where he was found photocopying topographical maps of areas where he was planning heists. It wasn't a heroic guard, marked bills, or a dye pack that tripped him up in the end. It was the meticulous paper trail—the maps, diagrams, and notes on surveillance—he had to create in order to pull off his jobs.

Legal scholars often bemoan the limitations of human cognition as impediments to a well-functioning legal system. Juries misunderstand their instructions, eyewitnesses have fuzzy recall, motorists miscalculate the accident risks of speedy maneuvers. But human fallibility has its advantages too. In "Evidence, Procedure, and the Upside of Cognitive Error," University of Pennsylvania law professor Chris Williams Sanchirico argues that our mental imperfections aren't always a bane for the legal system; sometimes they're a boon. Because it's harder to keep a fictitious story straight than it is to describe remembered events, cross-examination makes it difficult for witnesses to dissemble for very long without betraying their lies. Because not even the likes of Gugasian have the memory of an elephant, complex crimes usually require the keeping of notes and records. Once discovered, such documents can become devastating evidence.

Sanchirico chastises the scholars who have found that human error undermines the evidentiary process, and he revels in his discovery that our imperfection isn't all bad news. That's slim consolation, however, for the 50-odd banks the Friday Night Bank Robber knocked over before he was finally collared. Stanford Law Review, Volume 57, Number 2

"SORRY!" ISN'T JUST A BOARD GAME

As kindergarteners know, apologizing is an important first step in righting a wrong. So why is it that lawyers dissuade their clients from apologizing for their misdeeds when a lawsuit is on the line? Conventional wisdom among tort lawyers has been that apologizing means admitting fault, and that that can hurt a client's case. They tend to advise defendants to keep their contrition to themselves.

But a new paper in the Michigan Law Review suggests that those risk-averse lawyers may have it wrong. In "Apologies and Legal Settlement," University of Missouri-Columbia professor Jennifer K. Robbennolt crunched the numbers to see how apologies affected civil outcomes, and found that an apology isn't necessarily a bad strategic move—it's often a shrewd one. Robbennolt discovered that a good, heartfelt apology can sweeten a settlement offer. In one study she examined, the percentage of plaintiffs who settled jumped from 52 to 73 percent when the only change was an apology.

Not just any apology will do, however. The study also shows that a "partial apology," in which the defendant expresses sympathy but does not accept responsibility, results in a lower percentage of settlements than no apology at all. In the courtroom, as on the playground, you have to say you're sorry like you mean it. Michigan Law Review, Volume 102, Number 3

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