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.