Monday, May 6, 2024

I Don’t Know the Truth, But Not Sure We’d Have Done It Better: A Common Law Proceduralist’s Reflections on Anatomy of a Fall by Dr. Gerard Kennedy*

N.B.: This post contains major spoilers for Justine Triet’s Anatomy of a Fall    


The court process has lent itself to cinema from the Golden Age of Hollywood to today. The Life of Emile Zola. 12 Angry Men. Anatomy of a Murder. To Kill a Mockingbird. JFK. Erin Brockovich. The Trial of the Chicago 7. ‘Tis but a sample.


2023 saw another film added to this incomplete list of Best Picture-nominated courtroom dramas: Justine Triet’s Anatomy of a Fall. The film concentrates on Sandra, masterfully played by Sandra Hüller.[1] Sandra’s husband Samuel has fallen to his death from the upper story of their home in the French Alps. His body is discovered by their son Daniel. The nature of the fall and the architecture of the house quickly render an accident an implausible explanation for the death. Was it suicide? Or murder? Sandra finds herself charged with the latter.


Michelle Yeoh, upon introducing Hüller’s Oscar nominated performance at the ceremony last March, concluded with, “And I still don’t know if she did it.” Nor do I. And nor do I know whether French civilian legal process leads to a more satisfactory conclusion that one knows the truth of the matter. This is not a euphemism for “please follow the common law”. Quite the opposite. I just don’t know. Which makes this film particularly fascinating for this common law procedural law scholar.


That we are in a civilian legal process—indeed, the quintessential French civilian legal process—manifests itself early in the film. One of the most jarring things that occurs for any common law proceduralist early in the film is the decision of a judge—not a prosecutor or a police officer—to charge Sandra with murder.[2] This judge had previously been investigating in public in his civies[3] collecting evidence. To any common law proceduralist, this is anathema. It is surely the decision of the parties to proceed with litigation. Even in criminal law, it is the decision of the police, to be confirmed by the prosecution, to do this. A judge is surely to strive to be impartial[4] even when she cannot be purely objective.[5] Can entering into the investigatory fray lead us away from a perception of impartiality?


And lo and behold, not long after, another judge makes the decision to let Sandra out on bail pending trial. Flashes to media commentary indicate that it is rare for someone charged with murder to be granted bail.[6] It is hard to consider this as anything other than a backhanded critique of a fellow judge’s decision. Again, the common law would not countenance given concerns surrounding horizontal stare decisis, which holds that judges are obliged to respect, and usually follow, decisions made by fellow judges on the same court.[7]


Here, the common law’s reliance on the adversarial system raises a shocking contrast: how can a judiciary that is investigating whether Sandra committed murder also adjudicate that fact? Yet the prosecution against her continues without dwelling on this fact. And I can only think: in what discipline other than common law adjudication (and even here, administrative processes often have an investigatory role[8]) is a decision-maker expected to simply let the facts come to her? Certainly not scientific or medical or journalistic systems, where the adjudicator is also the investigator.[9]


While these concerns surrounding impartiality are interesting, however, it is not why this film has been rattling in my brain since I saw it. Rather, it is the trial process that seemed so jarring: in terms of the admissibility of evidence. Common lawyers sometimes derisively say that the civil law approach to evidence is one of “anything goes”.[10] This is a caricature—but Anatomy of a Fall shows it exists for a reason.


From before being charged with murder, Sandra is consulting with her friend, a lawyer who tells her point blank that he does not believe that her husband’s death was an accident. He is able to give advice and cross-examine prosecution witnesses, but never object to the admissibility of their often hearsay evidence. That hearsay is admissible in administrative proceedings in the common law is evidence of the informality of administrative hearings.[11]

The film doesn’t show us what “actually” happened, deliberately leaving us unsettled. Though this imitates real life, this confusion was underscored from the perspective of an anglophone with considerable—though by no means perfect—skills in French. Sandra (a German) and her late French husband met in London and spoke English, each other’s second language, to each other. Despite returning to France to raise their son, Sandra has never truly mastered the French language. She struggles with it, and is indulged by lawyers and judges who seem to barely tolerate her speaking English (a language in which they are also competent), after she is uncomfortable trying to testify in French, which clearly would have been their preference. In North America, it is a near-certainty[12] that these interactions would have occurred with more enforced involvement of an interpreter. Again, in France, this is without question permitted to occur.


The liberal approach to evidence and her struggles on cross-examination result in things beginning to look bad for Sandra.


When it seems like the tide is turning against Sandra, a witness comes out of the woodwork at the 11th hour to testify. The witness is her son, who does not want his mother imprisoned. The testimony is rife with hearsay from the deceased,[13] as well as Daniel’s quasi-psychological opinions on his father’s mental state. The hearsay combined with the opinion evidence raise two potential common law objections to admission.[14] Moreover, Daniel was possibly manipulated by his mother, with the Court having tried to reduce but not eliminate the risk of this. But there is no challenge to the evidence’s admissibility. All the prosecutor, whose case the evidence is adverse in interest to, can ask is that the evidence be given little weight.  I sat watching the film finding this shocking. Why wasn’t there a dispute over the evidence’s admissibility? To be sure, I am not certain that this is how a French trial would actually function, or whether it is a legal fantasy concocted by the writers and/or producers (I have many complaints about depictions of common law trials). But it seemed plausible enough to be alarming.


But while there is reason to doubt the testimony and motivations of this 11th hour witness, I found myself wanting to hear, and possibly believe, his testimony. And despite my “head” noting that it was not necessarily reliable or credible, I felt I had a more complete, if murkier, understanding of what occurred because of the evidence being admitted. Is it not patronizing to the triers of fact to bar consideration of the evidence?


This complemented my being curious and grateful to have seen demonstrative evidence of the prosecution and defence recreating their theories of how the fall occurred. These computer simulations definitionally could not show what “actually” occurred. They also presented a veneer of scientific recreation of an event that they clearly could not literally recreate. Again, however, I was happy to have learned more about theories of the fall, as imperfect as they are.


Meanwhile, witnesses were, in civilian tradition, centred in the courtroom rather than on the side, enabling the trier of fact being able to see them better. Should I believe them more because of that? Intellectually, I know the answer should be “no”.[15] But I was glad to have seen it.


When Sandra is acquitted, one senses that she may have gotten away with murder—but also that there is more than reasonable doubt. What lessons did I learn about court procedure? I primarily draw two. They’re contradictory, but they’re what I take with me.

First, evidence of extremely dubious reliability was allowed to potentially carry the day. Despite having had months to share his story, Daniel emerges to suggest his father died by suicide when things look bad for his mother, whom he has an obvious motivation to protect, and after he has had the chance to manipulate his evidence to be unfalsifiable. He is allowed to give hearsay evidence that should be treated with the utmost of skepticism given these concerns.


But second, I wanted to know more. No matter how imperfect the evidence, I feel I have a more complete picture. I was even glad that I heard Sandra’s testimony without an interpreter (even though an interpreter was there, and the interpretation could be heard through earphones), despite knowing she may not have been precise in her vocabulary. Isn’t it better to know more rather than less when murder is at stake? I know excessive court procedure isn’t beneficial from an access to justice perspective when evidence is peripheral,[16] but when murder is at stake, I find myself wanting everything on the table.


Anatomy of a Fall didn’t just leave me uncertain about whether Sandra killed Samuel, though it did. It didn’t leave just me uncertain about whether a common law or civil law system is better at getting at the “truth” of what happened.[17] Though it succeeded on that front as well. It also left me querying as to whether I preferred having fewer more reliable sources of evidence to have a more complete, if murkier, picture. I won’t forget the film in short order.

*     Assistant Professor, Faculty of Law, University of Alberta. The author thanks Amar Khoday for his editing and encouragement to write this post.

[1]    I’ll refer to the character as “Sandra” and the actress as “Hüller” hereafter to avoid confusion.

[2]   This is not universally the case in civil law systems: see, e.g., Newman F Baker, “The Prosecuting Attorney: Legal Aspects of the Office” (1936) 26 J Am Inst Crim L & Criminology 647 at 647-648; Darryl Brown, “The Judicial Role in Criminal Charging and Plea Bargaining” (2017) 46:1 Hofstra L Rev 63 at 68.

[3]   “Civilian clothes”, the history of which is discussed in, e.g., Ruthann Robson, “Why Don’t We All Just Wear Robes?” (2021) 34:2 J CR & Econ Dev 179.

[4]  This is not the same as necessarily being “passive”: Geoffrey C Hazard & Angelo Dondi, “Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits” (2006) 39 Cornell Int’l LJ 59 at 61.

[5]   As Justices L’Heureux-Dubé and McLachlin noted in R v S(RD), [1997] 3 SCR 484: “While judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality” at para 29.

[6]   The rationales for detention on very serious charges are explained by the Supreme Court in R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328.

[7]   The importance of which is discussed by Kasirer J for a unanimous Supreme Court of Canada in R v Sullivan, 2022 SCC 19, 472 DLR (4th) 521.

[8]   See, e.g., Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301.

[9]   These and other considerations are explored in Janet Walker & Oscar G Chase, Common Law, Civil Law and the Future of Categories (Markham, ON: LexisNexis Canada, 2010).

[10] Occasionally alleged to infuse Canadian administrative law: see Simon Wallace, Benjamin Berger, and Sean Rehaag, “Immigration Detention meets Evidence Law: a discussion paper,” Prepared for Fact-Finding in Immigration Detention Reviews: Evidence Law meets Administrative Law (Osgoode Hall Law School, 2021):

[11]  See, e.g., s 15(1) of Ontario’s Statutory Powers Procedure Act, RSO 1990, c S22.

[12] Indeed, in Canada this is guaranteed pursuant to s 14 of the Canadian Charter of Rights and Freedoms, as discussed in R v Tran, [1994] 2 SCR 951.

[13]  Hearsay is likelier to be admitted if coming from a deceased person in the common law, but this is not guaranteed: see, e.g., David M Paciocco, Palma Paciocco & Lee Steusser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 158.

[14] Opinion evidence not generally being admitted in the common law: Paciocco, Paciocco & Steusser, ibid at Chapter Five.

[15] The ability to test a witness’s reliability by seeing her face was queried by the Supreme Court of Canada in R. v. NS, 2012 SCC 72, [2012] 3 SCR 726.

[16]   See, e.g., Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87.

[17]   This is putting aside procedural protections for the accused.

Monday, August 16, 2021

'To Seek Justice’: The Mauritanian and Prosecutorial Responsibilities

Films and other creative mediums can bring much-needed attention to significant legal issues. In my previous post, I explored how the film, The Mauritanian highlights the importance of the legal right to counsel. Building on this, the film also offers other important insights, including with respect to the roles and responsibilities of prosecutors. In serious cases such as those involving allegations of terrorist activity, there is typically immense pressure on prosecutors to obtain convictions. These pressures trigger vital concerns about the strategies and tactics government lawyers (and interrogators) might employ to secure a conviction. What are some ethical limits and considerations on prosecutorial conduct? Can prosecutors use whatever methods they see fit to prosecute a suspected terrorist? For example, can they withhold information from an accused? Can and should prosecutors seek to admit evidence secured through torture? The Mauritanian illustrates some of these concerns raised by these questions.


To recap, the film depicts Mohamedou Ould Slahi’s harrowing experiences (including torture) as a prisoner who was detained at the United States military detention facility in Guantanamo Bay, and his protracted legal battle to be freed from custody.[1] Slahi (portrayed by Tahar Rahim) spent over a decade in detention and was finally released in 2016. He was first taken into custody in 2001, and then detained in Jordan, Afghanistan and finally, Guantanamo Bay. His eventual release was due in no small effort to the tremendous pro bono work of his legal counsel, Nancy Hollander (played by Jodie Foster) and Teri Duncan (depicted by Shailene Woodley). 


The Bush administration (2001-2009) alleged that Slahi recruited some of the individuals who were responsible for the violent attacks of September 11, 2001, and the thousands murdered, injured and traumatized due to these attacks. The government assigned the task of prosecuting Slahi to Lieutenant Colonel V. Stuart Couch (portrayed by Benedict Cumberbatch). The film delved into Couch’s journey from someone seeking the death penalty for Slahi, to his doubting the way in which evidence was secured (through torture), whether a conviction could be obtained, and importantly whether it should be. As depicted in the film, Couch’s commitment to prosecute Slahi and see him executed was in no small part due to Couch’s personal relationship with one of the commercial airline pilots who was murdered when Al-Qaida members hijacked and took control of United Airlines flight 175, and then flew the plane into the south tower of the World Trade Center.[2]


That a prosecutor may experience doubts about a case or an accused’s guilt, shouldn’t be problematic even though this may fly in the face of what people see in popular culture. For example, in adversarial legal systems, one imagines two or more parties vigorously litigating a matter – a type of civil(ized) combat. However, there are actual limits as to what lawyers can do while representing their clients in pursuit of a legal victory. Lawyers are bound by codes of professional responsibility and may be disciplined for breaching ethical rules.


It is noteworthy that prosecutors have heightened responsibilities that their counterparts on the defence side do not share. This isn’t surprising. Criminal prosecutions are different from civil cases. Prosecutors are not just supposed to seek a conviction and a harsh sentence as their prizes. As one justice of the Supreme Court of Canada explained many years ago: 
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. […] The role of prosecutor excludes any notion of winning or losing; [their] function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.[3]

This principle has been articulated in other jurisdictions. For example, section 3.8 of the Illinois Rules of Professional Conduct of 2010 states that, “The duty of a public prosecutor is to seek justice, not merely to convict. The American Bar Association’s Model Rules, which have been adopted across various states, does not refer to this specific duty,[4] but the ABA’s Criminal Justice Standards (2017) at standard 3-1.2(b) provides:

The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. […] The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. [emphasis added]

Such rules/standards highlight that prosecutors have unique responsibilities. Nevertheless, following these tenets may not be a priority for every prosecutor, and even when they are, there may be immense pressure to cut corners in ways that undermine such duties. The Mauritanian depicts Lieutenant Colonel Couch’s challenges in abiding by these norms in the face of opposition by his superior and other government actors.

In the film, Couch is urged to proceed with Slahi’s prosecution with some haste and notwithstanding the limited information and evidence that he and his team are given. The problem is that the evidence is inconsistent and lacking in detail, such that corroboration by prosecutors is not possible. For instance, while Couch’s prosecution team were given summaries regarding the interrogations with Slahi, information regarding the identities of the many interrogators, the techniques used, and when the statements were made, were not disclosed to them. Couch is advised by his friend, Neil Buckland (played by Zachary Levi), who is also an intelligence officer, that the details Couch is seeking can be found in memorandums for the record (MFRs). These are created for the intelligence community and not for legal prosecutions. At various stages in the film, Couch seeks access to the MFRs and is consistently rebuffed. Indeed, he is told that everyone already knows what the 9/11 terrorists did. For Couch, making a successful case against Slahi required his team to corroborate all the evidence they held and planned to use, given that they were pursuing the death penalty. In a meeting with his subordinates, Couch instructs them “to be exacting, thorough. We are seeking the death penalty. But if we miss something, this guy goes home.” 

Due to Couch’s efforts to be exacting and his persistence in acquiring the MFRs, he finds his own government’s unwillingness to share information with him to be frustrating and confounding. In one scene at a holiday party, Couch and Buckland have a tense exchange. Couch advises that without the MFRs, his case is a bust. Buckland responds, “You're overthinking this, sport. Either wear the jersey or get off the field.” Couch reminds Buckland that it’s not just about team loyalty, but the lack of proper evidence has serious consequences. In response Buckland speaks of getting justice for “Bruce”, Couch’s pilot friend who perished on 9/11.


Couch: My charge is to get Slahi the needle. No one else is going to walk him there. Not you, not POTUS, that’s on me. And if I’m wrong, when it comes to my reckoning, I’m the one who'll have to answer for it. 

Buckland: And who’s going to answer for Bruce? 


Couch: [incredulous] You’re going to bring his name into this?  

Buckland: No, no, no, you don’t know what we know. United flight 175, based on evidence gathered from the wreckage, the first thing those terrorists did - was slash up a flight attendant to elicit the co-pilot, Bruce, to open the cockpit door and come to her rescue. And then they slit his throat with a box cutter and let him bleed to death on the flight deck as the plane hit the tower. Now someone has to answer, for that. 


Couch: Someone... not just anyone. Happy fucking holiday.

Crucially, this exchange conveys the responsibility of a prosecutor to see that justice is done and not to secure a conviction of just anyone. This means, obviously, that only a person who has actually committed the relevant unlawful act or omission (actus reus) should be prosecuted and convicted. Vengeance is not an appropriate reason to pursue a conviction, and more severely, the death penalty.


Following the encounter at the party, Buckland arranges to allow Couch to review the MFRs concerning Slahi’s confessions in a sealed room. Couch learns that not only was Slahi physically tortured, but he was told that his mother would be brought to Guantanamo Bay and be subjected to rape by other prisoners if he didn’t confess. Furthermore, the techniques were authorized by then-Secretary of Defense Donald Rumsfeld. Recognizing the inadmissibility of the evidence and how unreliable the confessions were, Couch decides that pursuing Slahi’s prosecution was untenable, as a lawyer and as a Christian. He confronts his superior, Colonel Bill Seidel. The following is their exchange:


Couch: What’s been done here is reprehensible! 

Seidel: I don’t want to hear another word about detainee treatment. Your job is to bring charges. Let the judge decide what’s admissible. 


Couch: Sir, I refuse to prosecute this case. As a Christian, as a lawyer...[6]


Seidel: [shouts] What makes you think you're better than the rest of us? 

Couch: I don’t think I'm better than anybody else, that is the point! Now we all took an oath, to support and defend the constitution. At the very least, we are miles away from that.


Seidel: [approaches Couch and gets up into his face] You’re a traitor.  


Couch: [astonished] What?


As this exchange suggests, a prosecutor’s responsibility isn’t simply to bring a case forward regardless of how the evidence was procured and its lack of reliability. While it is a court’s responsibility to assess the admissibility of the evidence, prosecutors also exercise judgment about whether unconstitutionally obtained evidence should even be offered, and furthermore whether the case should be pursued solely based on such evidence. Undoubtedly, there are many times when it is a close call as to whether the methods employed to secure a confession or other evidence violate constitutional norms or common law rules. However, there are moments when the methods employed are blatantly illegal. In such cases, does a prosecutor proceed all the same, and bow to pressure from superiors? In addition to the answer being “no”, the Mauritanian illustrates that Couch’s refusal to do so amounts to an act of resistance, for which he is labelled a “traitor” by his superior officer.  


In my previous post on the right to counsel, I addressed how The Mauritanian emphasized the importance of defence counsel in upholding the rule of law. The film also leaves with its audience, the principle that prosecutors similarly possess this solemn function, despite institutional and political pressures to do otherwise.


1. Slahi’s story was set out in his book, Guantanamo Diary in 2015. The book was heavily redacted by the United States government. That same year, The Guardian produced a documentary based on Guantanamo Diary and featured interviews with his lawyer, Nancy Hollander and others. See “Guantánamo Diary: torture and detention without charge”, online:
2. For considerations of space, I’ll leave aside the oddity of a government lawyer prosecuting someone allegedly involved in the murder of the lawyer’s own friend and how that might compromise their judgment.  
3. Boucher v The Queen, [1955] SCR 16 at 24, Rand J concurring [emphasis added]. While the Model Code of Professional Conduct, produced by the Federation of Law Societies of Canada, does not specifically include this principle in its provision on duties of prosecutors (section 5.1-3), it is incorporated in the commentary: “When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits.”
4. Though rule 3.8 of the Model Rules does stipulate that, “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause ….”
5.  President of the United States.  
6. The film highlights Couch’s identity as a self-identified Christian and how this informs his decision-making. It’s worth noting that however laudable Couch’s conduct may have been with respect to Slahi’s prosecution as depicted in the film, such ethics were not always at the forefront when Couch acted in other roles. See Noah Lanard, “Judge Promoted by Trump Administration Threatened a 2-Year-Old With an Attack Dog” Mother Jones (10 September 2019), online: