Two Yutes Walk into a Courtroom: Everything Defense Attorneys Can Learn From My Cousin Vinny

This week, host Aaron Nelson is joined again by fellow criminal defense attorney Keith Belzer for a new kind of Sanctuary analysis. In this bonus episode, we’re stepping back from serious interviews for a full breakdown of My Cousin Vinny, the 1992 courtroom comedy that somehow became required law school homework. 

What seems like a fun, Friday night watch becomes a surprisingly sharp masterclass on trial skills. From Joe Pesci's relentless cross-examinations to the art of impeaching a witness, there's real courtroom strategy hiding beneath the laughs. Aaron and Keith separate the kernels of truth from the Hollywood of it all, hopefully just in time for your next hearing. 

Thinking on your feet, cutting to the real questions, and mastering courtroom charm: it's all in there, wrapped in a New York accent and an ill-fitting suit. Grab some popcorn and get your law nerd on, you might just learn something new.

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Transcript

SPEAKER_01 0:00

Does the defense's case hold water? The defense is wrong.

SPEAKER_02 0:15

Welcome back to Sanctuary in the Jungle. I'm Aaron Nelson. I'm here today with my good friend and colleague, Keith Belzer. Thanks for joining us again, Keith. Thank you, Erin. Happy to be here. Yeah, we got a little something different today. Uh not the typical interview, but you and I just recently watched my cousin Vinny together. We have, and we've discussed it for at least a couple of decades at this point. Absolutely, right? And so trying to just mix it up a little bit, maybe do something a little bit more uh fun, but we're also going to get into some analytics. So that's what I want to do today is like, let's talk about my cousin Vinny. What do you what do you think about it? Why is it so popular? Uh why is it used in all the teaching methods? Everything along those lines. Sounds good. Let's do it. So yeah, why do we pick cousin Vizy, right? I mean, I think it initially we were like, hey, let's let's talk about a legal movie, and we talked about maybe the verdict, uh, you know, legally blonde. There's of course the scenes from uh a few good men. Yeah, right. Uh but we both landed on my cousin visit.

SPEAKER_03 1:14

Well, I think i it's because it um i i it is such a part of the legal zeitgeist, either for lawyers or non-lawyers. I mean, almost everybody has either seen the movie or seen scenes from the movie. I mean, the famous line, the Utes. I mean, every you say Ute, and everybody knows what you're talking about, right?

SPEAKER_00 1:32

Yeah.

SPEAKER_03 1:32

Um, but also our experience here, and it, you know, when we've gone around the country to different seminars and such, uh this film is used more in teaching and lectures than any other film by far. I mean, you've got scenes of, you know, an expert or a dire not a direct so much, but cross-examination and um even the opening statements, which we'll talk about, but it's just very well known in the industry. And when you talk about it, people have a reference point.

SPEAKER_02 1:56

I know for you and I it's certainly well known, right? But it's uh it's from 1992. Yeah. Uh just a recognition that, you know, uh we're getting a little older, and the the other younger generation maybe doesn't know it. So just give me like what's the setup for the the trial? Because I don't want to talk about the movie in general, just the trial, but just can you give us the setup for the trial?

SPEAKER_03 2:16

Yeah, I mean, the the uh premise is that two younger men uh go into a store uh in the south, a place called the Sack of Suds.

SPEAKER_01 2:25

We should get tune, please, no more tuna.

SPEAKER_03 2:27

And they're there to buy, as it turns out, 22 items comes up during the trial. As they leave, two other people in a similarly looking car come in and rob the sack of suds and shoot somebody who is then um dies. And so the two boys, through a variety of somewhat humorous circumstances, end up being charged with the homicides. And the whole setup is my cousin Vinny is Joe Pesci playing uh Vinny Gambini, a guy who's just passed the bar in New York. He's would be very unorthodox in New York, but it it really is a fish out of water star story. So he comes from New York down to the south to try the case.

SPEAKER_02 3:09

So maybe that's a good place to start. I know you know you practice pr predominantly out of lacrosse, I practice predominantly out of Hudson, but both of us have had the opportunity at some time or another to be the out-of-town lawyer. You know, uh my cousin Vizzy is, as you say, the uh the quintessential, the iconic out-of-town lawyer. What's it like being the out-of-town lawyer?

SPEAKER_03 3:33

Well, nothing quite as severe as uh Vinny is in that movie, but um just the culture shock for him and then the judge and all that. But I mean, you you have to know where you're who your audience is, where you're playing. Um you have a case in Madison, you're gonna have a different approach, I think, than if you do uh, you know, in northern Wisconsin. Uh and part of it is for lawyers when we go into a courtroom where we don't know anybody, there might be some suspicion about, you know, why are you here and uh why not one of our local people? But also just in the communication. I mean, how you communicate to people every region, even in a state, can be slightly different. I think that's something we want to be aware of. I know you've had that experience.

SPEAKER_02 4:16

Yeah, you know, I think uh at least for me, I think coming from a small town and going other places, I still have that advantage of I'm not the big city lawyer, I'm not that. Sometimes I might be perceived as that based upon dress or how many other people are here, but I think I can always start with the I'm just from a small town up up north, and there's that's a different thing than being the guy from New York, right, who shows up in a small town down south, right? That's the ultimate, you know. I think we we had another guest who said South travels well.

SPEAKER_03 4:46

Yeah, right. Yeah, right.

SPEAKER_02 4:48

I mean, that the the New York accent's gonna be a whole different thing.

SPEAKER_03 4:51

That's a different thing. We got somebody who's gonna run for president on the Democratic Party from Kentucky, uh, who's talking up his southern bona fides right now because it's gonna play well in other parts of the country too.

SPEAKER_02 5:02

Yeah, right. And so, how about for you? When you've if you've traveled, I mean, uh, has that been uh something for you that you've noticed a difference for you personally?

SPEAKER_03 5:11

Yeah, you know, I I learned that lesson real quick. My very first trial uh when I became a public defender in lacrosse, we happened to be in Vernon County, which is uh much more rural for people that don't know than the lacrosse county, much more rural. And not a fan of people from Chicago. I made the mistake in my closing argument of talking about something that happened to me uh and my father outside of Wrigley Field in Chicago as an analogy, a little story, right? Just tell a little story. Yeah. The prosecutor got up in rebuttal and said the word Chicago with such sarcasm and disdain in his voice that I never referenced Chicago again in any trial I had in Vernon County.

SPEAKER_02 5:53

Yeah, right? And so that's again, just you you gotta know your audience. Exactly. That's exactly right. All of your analogies are now uh, or stories are about the brewers. Or I just don't talk about baseball. I'm still a cup fan. You still can't talk about the brewers. Yeah, I don't dislike the brewers. So day one of the trial. Yeah. Uh Vinny uh has been in court before. Um they've had Vordeer, uh, but day one shows up and he walks into the courtroom, and he really looks like a fish out of water there because he's got a different suit on, right? Yeah, he's got a crazy suit on, I got it from a secondhand shop.

SPEAKER_03 6:29

He looks like he's a carnival barker.

SPEAKER_01 6:31

I wore this ridiculous thing for you.

SPEAKER_03 6:36

And then we go right into openings. What do you think about those openings, Aaron?

SPEAKER_02 6:40

Yeah, I mean, the the opening, you know, you hear from the prosecutor, it's actually a very good opening from the standpoint of um he it's short, it's succinct, it's tight, he tells us what it is. He's like, this is a case about three eyewitnesses. He talks about them having to do their um analysis of their credibility. Um he's dynamic, he you know, loves to use his hands in different ways. Uh so his opening, you know, comes across. We know what it is, right? And also it's a movie. Yeah, it's somewhat a setup in many ways for for my c for Vinny's uh cross-examinations later.

SPEAKER_03 7:22

Yeah, they're planting the seeds for for Vinny to come in and then you know knock down the straw man. But on the other hand, I I don't know. I mean, one of the things we look at is what are the kernels of realism that we see in a criminal defense trial as portrayed in this movie. And I I don't know, I think you agree with me. That opening of the prosecutor, that's pretty much he could do everything he did in there in real trial.

SPEAKER_02 7:43

Yeah, absolutely. Like I think when we were watching, you know, he says the evidence will show, the evidence will show he says that a lot, but in some situations, judges require us to do that. Yeah, right. Um, but other than that, you're right. It it it flows, it talks about what the facts are. Um, and then we have a immediate change, right? And then we got Vinny. Then we got Vinny. Uh so Vinny had a tough night, uh, didn't get a lot of sleep, and he shows up in this suit and he gets up and just immediately, you know, everything that guy said, it's bullshit. And uh just sits down. So um there's obviously content and uh delivery.

SPEAKER_03 8:19

What are your thoughts on that? Well, I it's authentic, right? I mean, that's the one thing that comes through is that he just basically says what he thinks. Um and he says it in a way that you're like, well, okay, we he doesn't believe in that. He's not gonna repeat the the prosecution opening. Obviously, it's not a real opening, nor would you ever do that in a real opening, but it does convey a point of view that I think is sort of interesting, right? And it again it's authentic. And that's I think one of the things we're always trying to get to is how can we be our authentic communicators in front of an audience, in this case for him an out-of-state audience, but he's still authentic.

SPEAKER_02 8:55

Yeah. I mean, and you know, from a performance standpoint, we would prefer to get up there and convey that this is bullshit without saying that it's bullshit, right? And give them different facts in order to do that. But it certainly was succinct. It was succinct and got to the point. And then we know there's a there's a objection and it's sustained, and the jury's supposed to ignore that all.

SPEAKER_03 9:17

But what are your thoughts on that? Well, I mean, anybody who does this work, uh whether you're in prosecution or defense, knows that that's a myth. I mean, once you hear something, you can't unhear it, you can't unring the bell, as they say, or you know, if you say don't pay attention to the elephant in the room, you're gonna pay attention to the elephant in the room.

SPEAKER_00 9:35

Yeah.

SPEAKER_03 9:35

So I mean that's just a a point that we all know.

SPEAKER_02 9:39

Exactly. No one would encourage somebody to do that, but at the end of the day, he said that the jury heard it. It's not evidence, but what's clear is the defense attorney doesn't believe in the state's case. Yeah. The defense attorney believes in the innocence of his own clients.

SPEAKER_03 9:55

And that's one thing that comes through. And i i in this case, the setup is because it's his nephew. Sure. Right. And he just knows his nephew wouldn't be involved in something like that. But I think from the defense side, one of the things we're always trying to do is convey that, convey that true belief in our clients, so that they're not just clients, but they're people that we have a connection with, we have a relationship with, so that when we get up and we convey the bullshittery of the prosecution, it's coming through as authentic, as believable, as opposed to just simply, you know, arguing against the case. Yeah.

SPEAKER_02 10:27

And here for a little bit in the trial and the the the opening and the first couple of witnesses, we have three attorneys involved. Yeah. And so tell us why there's three attorneys.

SPEAKER_03 10:37

Well, there's two defendants at first. There's the uh Vinny's nephew and his nephew's friend. The nephew's friend is uh being represented in the movie by a public defender. If I have uh an issue with the movie, it's the portrayal of the public defender. It's played for laughs and and frankly nothing more. Although I'm curious, you know, the public defender um gives an opening that has some content. What did you think of the public defender's opening?

SPEAKER_02 11:01

So the the after Vinny gets done, given his, and uh the judge uh gives the order to the jury to ignore it, um the co-defendant's attorney gets up. Uh, this is the public defender, and he begins his speech, and about four or five words into it, he begins to stutter.

SPEAKER_04 11:18

Ladies and gentlemen of the jury!

SPEAKER_02 11:26

Um right, he can't uh deliver certain of the words, and from there they just continue to spin on that more and more and more, which even now as I say it, I I mean I I laughed when I watched it, but there's a sense of uh sadness that I just don't like about it because how it's portraying this uh attorney to be in some ways pathetic and incapable, right? But if you just look at the content, you know, uh the content of his speech is basically the state's case is completely circumstantial, accurate, that's gonna be helpful for Vinny's eventual defense. Yeah, and the state's case is based upon a coincidence, which is again accurate, that's what the entire defense theme is. And so if you can get past the delivery or the poor delivery, and you just get to his somewhat summation and argumentation on what it is, he's spot on.

SPEAKER_03 12:18

If you have the Vinny, give that opening, that combination of that's bullshit, and here's what the truth is, that's not a bad combination for an opening. Yeah, absolutely. You know, what's what could have been interesting, you mean again, um, 1992 um was a different time, yes as they say, right? Um, so here we're making fun of somebody's disability, but the fear that can happen the first time you get up to do an opening in a trial, that's real as rain, right? Yeah, so they could have portrayed that in a different way that wasn't making light of or making fun of a disability that would be more real to, I don't know, my experience, my first trial. I was pretty darn nervous. I still get nervous when I get up to do an opening. And so you can get up and you're just like you sort of freeze. And so you want to have that sort of Vinny mindset of like, I'm just gonna go in there and say what I want to say, and hopefully I'll have most of the stuff. Um, and as you said, I mean, uh the the public defender's information about you know who the witnesses are was sort of right on. He just couldn't really get it out.

SPEAKER_02 13:24

Yeah. And again, I get it, it's a movie. He is a prop for for for humor. Um, but if you can get past that humor, the content which he delivered, not too bad.

SPEAKER_03 13:35

Well, and I and I just want to say uh uh again, um the portrayal of a public defender in that way is just not accurate. I mean, my experience both in the state of Wisconsin and I've taught public defenders uh in literally all over the United States, is that they're good, they're strong, they're qualified, um, they work hard, um, and they're they're um very diligent.

SPEAKER_02 13:54

So after the the openings, the state calls their first witness, Mr. Tipton. Mr. Tipton, the um the uh grits guy. Yeah, the grits guy. Mr. Tipton, um there's a little bit of direct, and then again, the public defender does a cross-examination of them and doesn't know what the answers are and kind of walks into it. Can you tell us a little bit about that?

SPEAKER_03 14:21

Well, he you know, he does some like cliche things we've seen in movies, and we have all either seen in court or perhaps we've tried in court where we try to do something that might be sort of cute and it just backfires, because we don't we we really don't know. We're not that prepared. So the example I would give in that movie is that he notices that uh Mr. Tipton has a pair of glasses in his pocket, and so he does a big setup about the fact he wasn't that Tipton wasn't wearing glasses when he says he observed the Utes coming out of the sack of suds.

SPEAKER_04 14:52

Trevor Burrus, Jr. We're not wearing your necessary prescription uh glasses.

SPEAKER_03 14:57

And then the whole summation is Mr. Tipton says, well, they're reading glasses. Right. The the guy, the public defender is like, oh, tough witness. Well, not really. I mean, it's just sort of a dumb question, really.

SPEAKER_02 15:08

Yeah, absolutely.

SPEAKER_03 15:09

But it's in contrast because uh, you know, if anything crosses um in in somewhat of a similar way, with very different results. What was your reading?

SPEAKER_02 15:19

Yeah, I mean, I think he just sets it up right away. It's a uh you've talked about it a lot. It's not necessarily a perspective cross, but he his first questions are tell me what your perspective was. And we get right into the theory. You had a better view of them going in than you did when they were going out. Yeah, I mean, that's chapter one. And then from there, he wants to talk about why there may have been a difference between what he saw to begin with and what he saw at the end, and it all gets into that time gap. Time gap, which he says is five minutes.

SPEAKER_03 15:49

Yeah. And how do we find out it's not five minutes?

SPEAKER_02 15:52

Yeah, we find out. So it's initially, um, he says they walk in, uh, he sees them well, and then he sees them run out. And Vinny is saying, Well, it's possible. And he asks this very long question to which Mr. Timpton starts to interrupt in the beginning in the middle of it, and and Vinny's saying, Hold on, let me finish, let me finish. It's one of the worst worded cross-examiner questions I've ever referred. Yeah. But it's funny. And he says, No, that's not possible. And then he says, Well, why not? Because I it was only five minutes, right? And when you and I talk about cross-examination um either on when we're teaching or when we're doing work, right? If we're gonna do work, there are times when you intentionally set somebody up so that you can impeach them. There are other times when you will try to ask questions in a way so that you don't need to impeach them. So to begin with, just to make sure, like what's impeachment?

SPEAKER_03 16:48

Impeachment can be a number of things, but it um it typically is on cross-examination showing a witness is either mistaken or has a motive or has a bias. And there are different ways you can do that, either with prior statements, a point of view, uh, inability to perceive. But basically, it's just showing this witness's testimony is not to be believed because of some other reason. Yeah.

SPEAKER_02 17:14

And so I don't know if this is like reconstruction after the fact, but it if you look at it, you know, and it's a movie, so we can, it's as if he set him up to say, Oh, you say that this isn't possible. That shitty question that he asked that's super long, he's expecting the witness to say, No, that's not possible. And the premise for that is it's not possible because it was five minutes. And that couldn't have happened in five minutes. And of course, the entertaining part of the cross is how he proves that it wasn't actually five minutes.

SPEAKER_03 17:43

But that's a hell of a setup. It is a setup, and interestingly, it the movie sets it up earlier, right? Because of conversation about grits earlier, of which, of course, Vinny's not all that familiar with grits, being from New York, but we have that setup earlier, which is what the preparation in a real trial would be like. I mean, sure, this was a screenplay and it was written for dramatic effect and for the lawyer to shine, but a lot of that preparation is learning where are the setups? Where are the where is the person gonna stay consistent with their character? Because what we find out about this guy is that he's very proud of something. And what is that? He's proud of how he can make grits. Correct.

SPEAKER_02 18:22

No respectable southerner would make instant grits. Right, right. And that's where we get into then this, you know, sarcastic uh cross-examination about you know whether physics doesn't apply to uh boiling water on his, but that's where he all of a sudden concedes. And I think you I've heard you say it before. The witness now has to choose between the case and their identity. Tell me a little bit more about that.

SPEAKER_03 18:46

So I mean, one of the things that I I think that when people are going to testify, and we've seen this in different movies, I think that a few good men displays this well, is that many witnesses will stay true to themselves, even if it might hurt the case that they're testifying about. And with Tipton, it is sort of a prime example, because even if he knows at some moment that the five minutes won't work unless it's instant grits. And therefore he had to have not watched those boys, right? That's the whole premise. He hadn't seen him for longer than that. He will stick to his true hell belief that a real southerner only uh makes grits from scratch, which takes twenty minutes. And that's part of the you know what's being set up in that case, in that cross there, and I think it's true in real court, is that if a person is a real southerner, even if it hurts the case, they're not gonna say I made instant grits, they're gonna say I made real grits from scratch.

SPEAKER_02 19:40

Yeah. In one of my recent articles that I'd written in the Substack, I used a phrase from history. Um, I think it's Heraclitus, a philosopher, but that it really rings true here. It says, Character is destiny. And I think character is destiny excribes exactly what you're talking about. That witness's character is going to predict their destiny, where they're going to be, what they're going to say, how they're going to do anything. And his character is such that he's like, I am a true, respectable southerner. That's my character. And my cousin Vizzy gets to say, Well, the destiny is then it's gotta be 20 minutes. You've got to be wrong on the five minutes, yeah. And your premise is all gone, uh, all bad.

SPEAKER_03 20:20

Yeah, I and I think that there's just that's true of people. I mean, if we start to think about what is the point of view of a witness in a trial as opposed to them just being a witness, I mean, we're all human beings and we all have a point of view. I wanted to say as an aside, um, when you're talking about uh physics not applying to Tipton's cooking, that was, I I feel like was an homage to a very famous Clarence Darrow uh trial. Oh. Um, loosely known as the Scopes Monkey trial. Tell me about that. Where he cross-examined William Jennings Bryan, the presidential candidate, on the witness stand as an authority on the Bible, and talked about how long the first day would be, for instance, when there was no sun, right? And then he's they talked about another part of the Bible where the earth stood still, and uh Clarence Darrow really zeroed in on William Jennings Bryan on that and said, if the earth stood still, don't you think things would have flown off their axes, people would have been floating into space, that you know, the oceans would dry up, all this different thing. And so when I when I heard that and my cousin Vinny this time, I thought, oh, that's almost a direct comparison to the cross that Darrow did against William Jennings Bryan in that famous case.

SPEAKER_02 21:27

Yeah, I mean, and it's a it's a it's a quip, right? When he says physics doesn't apply. Right. But it is very much when we talk about uh the fancy word is verisimilitude. Maybe the common way to say it is that just doesn't ring true. Right, right. Right. And that's what you're saying that uh Darrow when he crossed, he's like, that couldn't have happened because what we all know, whether it's our common knowledge, our common sense, or our understanding of physics, it couldn't have happened that way.

SPEAKER_03 21:54

Couldn't happen that way. The other comment I want to make about, and we're gonna see this with the next witness too. Bushman is the way that Vinny treats those witnesses very sarcastic. Yes. And very judgmental. I think that would be a mistake anywhere. And I just feel like for anybody who watches that movie, don't do that. Yeah. Don't be that way. It's funny in the movie. Don't get me wrong. It's hilarious. I laugh. Everybody laughs. But you know, for a guy from New York to go to the South, and it's not New York to the South, it's like anywhere, any place. Going and treating a witness rudely for a lawyer, I just think is a huge mistake.

SPEAKER_02 22:36

Next we got, well, any but before we get to the next, you know, he finishes, he ties it up, which not always is done, but he ties it up aggressively, but he gets the witness to agree, I may be mistaken. Yes. Right? Which is, again, just a nice little from a story arc within there, but uh the possibility is what he's trying to do. You might be wrong.

SPEAKER_03 22:59

Correct. And in in a in a real trial, you might get to that point. Yeah. But you don't need to. Just pointing out that he could not have clicked those grits in five minutes is as far as you need to get in that cross, right? In a real case.

SPEAKER_00 23:12

Correct.

SPEAKER_03 23:13

Because the witness may never give that to you. That's okay.

SPEAKER_00 23:15

Yeah.

SPEAKER_02 23:16

The jury gets it. And so then uh that's the end of I think day one.

SPEAKER_03 23:20

Yeah.

SPEAKER_02 23:21

Right? Uh we had the opening, we have day one witness, Mr. Tipton. Uh we come back to day two the next day. Trees and Bushes and Dirt. Trees and Bushes and Dirts. Day two, witness one, Mr. Crane. Trees and Bushes and Dirt, as you say. Um we know again from the prep that you talked about, we know that he'd gone and visited this witness in the background and that he'd taken these photos. The value of those photos can't be understated. What are these pictures of? You couldn't do that cross-examination without those photos.

SPEAKER_03 23:53

Would you agree? Absolutely. I you know, one of the things that I believe is that every scene that may come up in a trial, it's important uh to visit the scene. Um a scene has its own memory that you cannot tap into unless you've been there just to get a sense of it, to see what you see. The windows looking like that, the screens looking like that, the number of bushes, the trees. That's not gonna be in a police report. That's gonna happen by putting in, you know, the the the leather work, walking to the place or you gotta go do your own investigation. You gotta go take a look. And then so um, as fun as that cross is, that was perhaps I thought the most real cross that Vinny does in the movie, in the sense that everything he does with um with Crane, on the stand, uh he doesn't really lead the witness, but everything he does uh would be a leading cross. Yeah. I want to skip up, those are bushes, those are trees, there's seven bushes, there's dirt, that's a screen.

SPEAKER_02 24:51

And he's doing it the whole time with these photos, right? So the photos are the aid to be able to do that, and then he does. It's the we talk about it uh one fact per question, and he starts at the beginning uh dirty window, right? Uh messed up screen. Yeah, crud. Cruddy screen, I think it's so it's dirty window, cruddy screen. We've got these things called trees, trees have leaves, in between there's there's bushes, and so he goes one fact per question as he goes through that cross to basically say you couldn't have seen what you said you saw. Yeah, there was stuff in the way. Yeah, and so that is that's uh super tight. I mean as tight as you can get on a mark.

SPEAKER_03 25:30

Something where you're trying to be humorous, right? Yeah, but yeah, I mean if I thought that was a very realistic uh form of a cross-examination. Yeah.

SPEAKER_02 25:39

And in that way he treats him, maybe he's condescending to the witness, but he's not as attacking as he was to Mr. Tipton.

SPEAKER_03 25:46

He's not as attacking, but he is um when he says, shout it out if you know it, one of those things, he's um he's not nice.

SPEAKER_02 25:56

Yeah. In the long run. But again, at the end, he finishes, he ties it up, and he's like, You could be mistaken. Yeah. To which the witness again agrees, oh, okay. So there's a reason to doubt that guy. Yeah. And then we come to uh the third eyewitness, Mrs. Riley. Mrs. Riley, right? Who's uh about as lovable a character as you can get in any movie. Yeah, yeah, she is.

SPEAKER_03 26:18

Tell me about her. Well, Mrs. Riley's an eyewitness.

SPEAKER_01 26:21

Oh, let the record show Mrs. Constance Riley identified the defendant's car.

SPEAKER_03 26:25

And we see her on the stand, and she's got very thick glasses on, prescription glasses, and starts off with some questions about how often she's had them changed over the years. And you know, it's a sight gag for the movie because you see how thick the glasses are. And Vinny does something that uh would be risky in a courtroom. Although I'll tell you, I did this exact same thing um in a courtroom in Sparta, Wisconsin. Wow. And I'll tell you about that in a moment. But um he goes to the back of the courtroom, measures out fifty feet, which is only half the distance that she claims that she could see the boys coming out of the sack of suds, um pulls his fingers up. Uh the judge humorously chimes in to say what the record should show, and so he does it again.

SPEAKER_01 27:09

Now, Mrs. Riley, and only Mrs. Riley.

SPEAKER_03 27:14

Puts up two fingers and Mrs. Riley says four. He walks up to her, shows that he has up two, and says maybe it's time to get a new prescription. She said maybe it is. So again, he does what he did with the other two. He discredits the eyewitness testimony of the third eyewitness um very successfully. The risk there, of course, is that uh I don't think you can know that she can't see those fingers at the back. Yeah. Once you do that, it's sort of a it's a tr tricky sort of thing. It's sort of showy, and if it backfires, it doesn't look good.

SPEAKER_00 27:45

Yeah.

SPEAKER_03 27:45

I've only done it once. It was in a trial in Sparta that I tried with a public defender there. I was a public defender as well. But I mean Patricia O'Neill, and we were cross-examining a guy who was an eyewitness of a burglary at a pharmacy shop in downtown Sparta. And he claimed to have some description of the of a quote of a the person that I didn't think could be accurate given the lighting situation. So I brought it to the back of the courtroom, um, turned off all the lights in the courtroom and had him identify what the color was from the stand. And thankfully, he couldn't. Because wow. Afterwards, my co-counsel was like, well, that was pretty risky. And I said, Yeah, yeah, yeah, it was. Yep, it was. So it worked in that case.

SPEAKER_02 28:29

Yeah. And the colors of the spectrum might be more options than you know how many, you know, right. Yeah, you're holding up a number of fingers, you know, she's got a 20% chance of getting it right if it's just one hand. Exactly. It's a little bit, yeah, a little bit different when you're trying to pick a color out of a rainbow.

SPEAKER_03 28:45

That's the sort of thing that I, you know, if you're gonna take a trance like that, it's got to be one where it's not so clear if it doesn't work, right? Something you can just move past, keep a poker face, and keep on going.

SPEAKER_02 28:56

Yeah. And so you can hit a home run, but your your risk is is not that high because if you swing and miss, there's just you have more opportunity. You don't want to be Casey in the ninth. You still want another batter to come up after you, right? Yeah. And there's of course the during that witness, there's this, as you mentioned, there, there's the time where he asked the question the first time and the judge offers uh the the answer, which is, you know, A, we're just trying to point out some things from the for the judge, but is there a ring of truth in there at all that you've had in your experience? I mean, obviously you've had some wonderful, excellent, brilliant judges, but I imagine you've had some judges that sometimes it feels like maybe they're helping the other side. Is that what you think this was a reflection of?

SPEAKER_03 29:39

In that case, I think that the humor of that moment was just the judge making a record without realizing he was messing up because when Vinny says, and this time only, Mrs. Riley, meaning judge be quiet, the judge looks a little embarrassed. Yeah. But there are times throughout the movie where you do get a sense until the end that the judge is putting his thumb on the scale a little bit. Yeah. That he's helping out the other side. I mean, Vinny makes a very appropriate uh uh objection to an expert witness, which is coming up next in the film that we were talking about. That I boy, I don't see how a judge could make that ruling. There's some other things the judge seems to be playing on a little bit in favor of the prosecution, and then of course, you know, it all switches when Marcette Tomei testifies at the end. But yeah, I've seen that with judges at times, and I know you have too.

SPEAKER_00 30:25

Yeah.

SPEAKER_02 30:26

You know, and again, it this is a a fictional portrayal for entertainment and humor, but part of that oftentimes humor is there's a kernel of truth in it. Absolutely. Right.

SPEAKER_03 30:38

Absolutely. And you know, judges are human beings, yeah, most of them. So when when they're trying a case, if they really believe one of our clients is guilty, I think sometimes without realizing it, that comes through. Yeah. Whether it be in a decision, in a look, in a tone of voice, I I think sometimes it's very hard to be completely objective as human beings in the world. And because they're human beings in the world, I think there are times where that'll come through. More so for some judges than others, but I think it comes through.

SPEAKER_02 31:11

Yeah. I mean, again, the kernel of truth here is that the reality is people get falsely accused of crimes based upon eyewitness identification that is wrong.

SPEAKER_00 31:20

Absolutely. Yeah.

SPEAKER_02 31:21

You know, and so we're we're touching on it, but we're touching on it in a way that almost doesn't clearly because it's a movie, doesn't give it the weight and the seriousness of it is. Because most of the time when it happens, it's not two white kids from New York.

SPEAKER_03 31:35

Right. Right. Right. There's usually cross-culture identification issues, uh, there's weapons fixation. But I mean, we know that with innocence projects around the United States, one of the biggest causes of false convictions uh is eyewitness identification. I mean, there's really no question that that's true.

SPEAKER_02 31:52

Yeah, and this was made in 1992, which is right around the time when Barry Scheck and the Innocence Project was just getting going, wasn't it?

SPEAKER_03 32:01

Yeah, yeah. They've done a lot of work since then. And Wisconsin, of course, um did a lot of work on eyewitness identification. Um it became clouded, uh, if you will, because it was originally called the Avery Commission after Stephen Avery, and most people listening to this podcast will know that that was the client in making a murder with two of our friends, uh Jerry Buting and Dean Strang. Um so later on, I I'm sure they changed the name of the commission, but that commission was originally called the Avery Commission, looking at specifically in Wisconsin, having guidelines to prevent false convictions and eyewitness identification cases.

SPEAKER_02 32:38

Because even now, whatever, 30 plus years from the time of that movie, uh false charges based upon wrongful or wrongful convictions based upon uh identifications that are inaccurate still happens. It still happens. Yeah. So finished day two, uh, all the eyewitnesses are done. Um Vinny's back at his office or back at the motel and he gets a call from the prosecutor.

SPEAKER_01 33:06

Uh you did good out there today, Yankee. I like the competition.

SPEAKER_03 33:10

What do you think of that phone call? It was humorous in the moment, but also uh a little frightening. Yeah. Uh I I will say that in my uh experience, most of the prosecutors I've dealt with have been very uh justice oriented. That it was not about competition. I'm not gonna say all of them, but most of them that I've dealt with. I've had heard horror stories from other lawyers I've worked with around the United States where it's not about justices. It is about competition, it is about getting convictions at all costs. Sure. Whether that's hiding discovery, Brady violations, whether it's um bringing a case even if you don't know if you can prove it, if even if you don't think you can prove it beyond a reasonable doubt because of the politics involved. Again, that's not been my experience, but I know it is a true experience. And as you said, uh the humor can have a kernel of truth to it, and I think that humor had more than a kernel of truth to it for many of our colleagues around the United States, and and even around Wisconsin. It just hasn't been my experience in Wisconsin.

SPEAKER_02 34:12

Sure. That sometimes that it gets to be more than about the case, it gets to be about the two lawyers.

SPEAKER_03 34:17

About the two lawyers or just winning. I mean, even if it's not personal. I don't know. There might be lawyers I have, friends, who it becomes personal with them and prosecutors. I won't name any names, but that can happen from time to time. Um but even if it's not personal between two lawyers, it's just this win at all costs. We've got a different role. I mean, anybody who's listening to this on the criminal defense side, our role is to zealously advocate for our clients within ethical boundaries. Absolutely. It's that's pretty much it. Zealous, ethical. Prosecution has a whole different role. It's not to win, it's to protect justice, to try to prov present a form of justice, and that m means following different rules. It means being fair, it means being ethical on in all matters, and it means winning for the sake of winning isn't not part of that equation. Because sometimes there's a principles that are greater than winning. Yes, yes. From their point of view, the the the principles should always be greater than winning.

SPEAKER_00 35:16

Yeah.

SPEAKER_02 35:17

Right. And so the phone call was about a surprise that was gonna happen the next day. So day three, uh, we show up and the state's got an expert witness. And um immediately uh Vinny uh says, Judge, can I approach? And he comes up to the bench and he uh notes his objection. Yeah, right. You'd you'd uh foreshadowed that before in a previous comment, but tell us about that objection and the judge's ruling.

SPEAKER_03 35:44

Well, Vinny makes for the first time and actually a really good legal argument, right? Because up to this time, Vinny's you know still a little rough around the edges. He's winging it. He's winging it. He's winging it. And he makes a very valid legal argument. The judge basically says that's a really valid legal argument. Overruled. That is a lucid, intelligent, well thought out objection.

SPEAKER_01 36:06

Thank you, Your Honor.

SPEAKER_03 36:07

Overruled. Which uh it seems unbelievable to me, but quite honestly, you've done a lot more litigation in recent years on experts and Daubert issues and things like that. This was in '92 for our state, pre-daubert, right? But what was your thinking about that ruling when the judge says, no, I'm not gonna I'm not gonna delay, I'm not gonna give you more time, you're just gonna keep going, even though there's a surprise expert.

SPEAKER_02 36:33

Yeah, I mean, obviously I disagree with it, right? I mean, but the if we take it out of that factual setting with that expert, right? Just the fact that there's been times, I imagine, in your career where you might have said or heard from a judge that's a lucid, uh, intelligent, well-thought-out objection denied.

SPEAKER_03 36:54

Yeah.

SPEAKER_02 36:54

Right? And and while I obviously disagree with it in that scenario, that's just the improper legal ruling. You don't get to do that, right? And like you said, it's maybe pre-daubert and some other things. But again, across the state, different judges, there have been times that myself or colleagues that we've talked about have felt as if you weren't even hurt. Yeah. Right? That the words were echoed back to say that it was this and it was lucid, it was well thought out, it was intelligent. But yet, if it's denied, uh, how can you do that in a denial? And so that's to me what rung true. And maybe it's just my own personal feeling sometimes of like you thought you did a really good job, and somebody else is just like, nope.

SPEAKER_03 37:36

Well, and and it at times, uh without any explanation. Yeah. Just no. Overruled. Yeah. It's like, well, why why? Yeah, right.

SPEAKER_02 37:45

Yeah. Um, yeah. Part of that might just be too. I think what's for those of the who might not be lawyers, right? That the law isn't just simply an application of these commands to these facts, and it just gets to be routine and you just do it. There's just so much decision making, there's so much discretion that um the judges have, and it doesn't necessarily mean that it's wrong, but it's not necessarily predictable. And that's what it really comes down to is sometimes you're just like, I don't know what the judge is gonna rule. I don't know whether this is right or wrong. It just might be against me.

SPEAKER_03 38:20

Yeah, I absolutely agree. And that makes it hard at times to give accurate predictions about what evidence is gonna come in when you're talking to a client ahead of time.

SPEAKER_02 38:29

So we get this expert, the state gets to call him and he comes in and talks about the tires and uh how popular are you know, uh, that these tires match the the pictures and everything like that. And Vinny does what he can to try to prepare some sort of cross, right? And he gets out some good points about basically, well, those are the most popular tires, right? Those are the most popular size to just kind of dwindle it down. Um, but he doesn't really come up with a lot. What I found that really rang true for me was Vinny's comment when at some point during it he says, I feel like I'm just missing something. Yeah. Have you ever been in a trial like that? You get some evidence and you're looking at it, it's all right there, and you don't know what it is, but you're just like, I know it's there, but I'm missing something.

SPEAKER_03 39:16

Yeah, yeah. Actually, um, you and I were just talking about this earlier. I was trying a this case, uh, Evan Zimmerman, which I we talked about on the podcast previously. And I'm crossing two different experts, all both on the same day. One is uh a pathologist who opines that the cause of death was a foam cord strangulation. And I'm crossing a different crime analyst, crime lab analyst, who's providing uh evidence, among other things, that there were cloth fibers, trace evidence, trace evidence in the victim's wounds on her neck, which would could not have come from a food cord. I'm in the middle of cross-examining the pathologist when I suddenly realized which was shocking to me in the moment, right? Why did it take you so long to realize it? Why did it take me so long to figure this out? That he didn't know anything about the cloth, about the fibers to trace evidence in her wound. And so there it happened to be a documentary, so there's this moment where the camera's looking at me, and I have this dumbfounded look on my face, like, oh that's what was missing, and I just found it. And much like Vinny when he's looking at the pictures, and all of a sudden he's like, oh, I get it.

SPEAKER_02 40:32

Because he takes a lunch break, yeah, right, and uh his girlfriend fiancé shows up and she's trying to be helpful, and he shows her these photos and he treats her very much like he treats some of the witnesses. He's kind of mean to her, very sarcastic to her. But uh by the time she leaves, he realizes that's what's missing. The answer's right there.

SPEAKER_03 40:52

Yeah, right, exactly.

SPEAKER_02 40:53

Uh how about you?

SPEAKER_03 40:54

Do you have anything like that that comes to mind?

SPEAKER_02 40:57

Just that uh what I'm surprised every time that I prepare for trial. It happens every time, and I don't know if you can prepare ahead of time, but it feels like the either the day before, certainly the week before, you come to some understanding that you didn't before. You could have had the case for a year, you could have had the case for two years, you could be 500 hours into it, but there's just something about that in the moment of the trial prep or even at the trial, where every case, I'm like, I come to some new understanding of the facts, which I always look back at and be like, what's wrong with you? How did I miss that all the time? How did I miss that for 500 hours or for however long it was, right? But there's just something about that process of of intensity and preparation that I think that just brings somebody to the point where now they can understand it at a different level.

SPEAKER_03 41:45

Yeah, that that that makes sense to me. Because it's like you're staring at the same puzzle forever, and then all of a sudden you just see it in a slightly different light when you're in the middle of it, in the middle of it the week before, the middle of it during. Yeah, right. I agree.

SPEAKER_02 42:03

You know, and it might even be some of what um I mean, what the power of story, right? I mean, I think sometimes I'm very you know this about me, I'm very much a verbal processor. And I think my telling my story in some ways reminds me of other things. And even just the process of preparing and doing the trial is I'm now experiencing the story in a way that might give me a deeper understanding of the story that I'm that I'm telling.

SPEAKER_03 42:31

It's a more intimate connection to the material, right? Yeah, you really immerse yourself inside the story. Um, you see it from all points of view in a way that um the preparing for the trial until you're right down to it is just slightly different.

SPEAKER_02 42:45

Yeah, exactly. And so he eventually gets to call his fiance. He, you know, reluctantly she gets up on the stand and he sets her up. Uh he sets up the prosecution to be like, you want to vourdeer her to see whether or not she's an expert. What's that all about? Just the legal concept of like seeing whether she's an expert, and they use the term vour deer.

SPEAKER_03 43:08

So that's gonna be different from state to state. Um typically we think of voider as jury selection, but in some states you can vourdeer an expert, um, even in front of a jury, about what they're gonna testify to. In most jurisdictions nowadays, I think this is either gonna be handled pretrial through a Daubert hearing, because typically both of those experts should have been a Daubert hearing, I think. In Daubert hearing Daubert is a case that is a gatekeeper for experts to make sure that the expertise is based on some sort of scientific uh method or procedure, or you know, um that it's not just made up stuff, yeah. Essentially, that's a real easy way to describe it. Um so the places that still would have that vordue, usually that would be outside the presence of a jury, and it's just generally gonna be a voidier somebody on their expertise, their qualifications, not generally on their Opinion, the opinion would happen in front of the jury, but it's to see if they're qualified. And in this movie, that's what he does. He cross-examines her at his own peril, as it turns out, yeah. About her expertise as an auto mechanic, and she schools him.

SPEAKER_02 44:12

Yeah, right?

SPEAKER_03 44:13

She's basically like, You're trying to trick me.

SPEAKER_01 44:15

It's a bullshit question. It's impossible to answer.

SPEAKER_02 44:18

This is a trick question, and it's not fair. And she not only points out the trick question, but she says if it was a fair question, here would be the real answer.

SPEAKER_01 44:26

The correct ignition timing would be four degrees before Top Dead Center.

SPEAKER_02 44:30

Right, right. And then he concedes, and and from there, she basically points out how it is that this couldn't have happened. It couldn't have been their car because of uh the suspension on the car. Is that right?

SPEAKER_03 44:43

Yeah, yeah. I mean it's you know, I we were talking when we first started our conversation, we were talking about all the times we've seen this movie used in teaching, yeah lectures. That's the only scene that I've ever used, um, my cousin Vinny for in in teaching was I gave a talk about presenting experts at a conference for the National Association Criminal Defense Lawyers. And it wasn't about so much how to get in her expertise, because I think you'd need to do more of that in real case. It was about how to make an expert interesting and uh relatable. Because I think we can get caught up in our experts being so smart that the jury is not paying attention, they're nodding off, they don't get it. And she was just and obviously it's Marissa Tomei who won the I Academy Awards, so she's fantastic, one of my favorite parts ever. But just to make it come alive and tie it to the facts of the case is for me the best teaching moment in that movie.

SPEAKER_02 45:37

Yeah, it's fantastic. And what I what I also like just from a cinematic perspective, you see the camera look at the prosecutor, and the prosecutor is turned back consulting with his expert. Yeah, right. If I'm in trial and I have my expert on the stand and I see that happening, I'm I'm excited. Yeah, I'm elated, you know, especially because here they made a point of showing the state's expert nodding, agreeing in a way that I think the jury would be able to see. Because what happens in the courtroom, everybody sees everything. Everybody sees everything, yeah, yeah. Yeah, what's going on, right? They all get to see that. And so she delivers this, right? And then of course, after that, Vinny um sees that. And so what does he do? Who does he call next? Or he recalls their expert. He recalls their expert, right? And in a way that, again, he gets out the cute stuff, but he gets their expert to then agree basically. She's right. She's right. Yeah, this isn't possible, right?

SPEAKER_03 46:38

I've never had that happen where an expert for the other side agreed completely with my premise. I've had them, and as I've seen you do as well, uh, agree with some of our stuff in a way that can hurt the other side's case, in a way that I wasn't necessarily expecting, but that was a little bit far.

SPEAKER_02 46:54

But you know, it's uh funny that you say I've never seen that happen. What happens next is something that you did have happen and that I've never heard of anybody else in my career ever have happening, and that is he calls the sheriff to the stand, and the sheriff delivers new evidence about who really did it. And then how does the prosecutor react?

SPEAKER_03 47:18

The prosecutor dismisses the case, right? Yeah. Does a safe sign like he's an umpire, and he dismisses the case. I mean, you it's it's the I can't remember the actor's name. He's a good character actor, plays prosecutor, but you see all these facial expressions where he's like, darn, I don't have the case anymore because he's still competitive. I can't win the case. I might as well get in front of this and dismiss it. And so then he dismisses it in you know the courtroom cheers and you know all that stuff. That we don't usually see that in in trial where the prosecution dismisses a homicide case in the middle of a trial. That's right. In the middle of a trial. No, I mean you had that happen. I did have that happen, yeah. And it's that same case we were talking about, Zimmerman, where it was supposed to go for two weeks, and after the fourth day, the prosecutor in that case, after this day of experts, um that I told you about, came to me and Keith Finley, the other lawyer, and just said he would needed to talk to the the family of the the woman who had been killed ahead of time, but he was dismissing the case.

SPEAKER_02 48:17

Wow.

SPEAKER_03 48:17

Um and Wisconsin considered that an exoneration. And the next day we had a uh like a press conference, and Evan was given a t shirt from Wisconsin Innocence Project saying exonerated and talked to jurors and yeah, it was um like you said, it doesn't happen all that often.

SPEAKER_02 48:36

I think you're that's an understatement. It doesn't happen ever. I mean, that's a unicorn. Yeah, that is an absolute unicorn, and we're uh I think scheduled to to chat with the family, uh not Evan, but his son and his grandson about that case sometime in the future. So I'm looking forward to that. So stay tuned. But that's you know, there's kernels of truth throughout this this case that we talked about, but that is clearly other than the unicorn case that you have, that's a movie type ending. That doesn't happen. Yeah, that that doesn't happen.

SPEAKER_03 49:05

Cases don't get dismissed in the middle of a case.

SPEAKER_02 49:08

Yeah, right. I mean, and so again, circling back to we have a eyewitness identification, we have a battle of experts, we have some new information, and 999 times out of a thousand, maybe more, that case is being given to the jury and say, Yeah, let the jury decide. Correct. So the fact that you had this situation where a prosecutor acted as a gatekeeper and made that decision on her own, tell me it seems obvious there, but just that concept, the importance of the prosecutor occasionally acting as a gatekeeper and saying no, does that get back to what you were saying about their higher calling?

SPEAKER_03 49:46

It absolutely is a higher calling. I mean, in that case, uh, that prosecutor could have made a decision, you know what, rather than being the one to dismiss this case. And that was a retrial, right? That was an innocence project case. So I mean, keep in mind that means that this the guy we were representing, Evan, had already been convicted. Twelve people had found him guilty. He got a life sentence without the possibility of parole. Um, Keith Finlay and I believed in our heart of hearts in his absolute innocence, but nonetheless, 12 other jurors didn't agree with that. Correct. So it would have been easy for the prosecutor to say, you know what, one jury already convicted him. I'm gonna let this jury decide, uh, and we'll go through that full two weeks.

SPEAKER_02 50:25

Yeah.

SPEAKER_03 50:26

But this prosecutor, uh almost at the end of their case, at the end of the prosecution case, came to us and said, I don't believe we can prove this case, so we're gonna dismiss it.

SPEAKER_00 50:35

Yeah.

SPEAKER_02 50:35

So I know uh, you know, as criminal defense attorneys, sometimes we'll complain, I can't believe they're doing this, and I can't believe they're they're they're charging this case, I can't believe they're uh going forward with the trial, they can't believe uh they're gonna do all this. So he may have came to it late, but he acted as a keeper. He got there, he got into the end zone eventually and did that, which is exactly what happened here. Uh, and Vinny's cousin gets to go home to New York. Cousins going back to New York with his friend, yeah. Yeah. So uh well that that's a that's a wrap on the on the courtroom scenes. Any last thoughts on uh my cousins and Vinny and how it relates to the world that we work in on a day-to-day basis?

SPEAKER_03 51:14

No, I think it's just it's a fun movie, and and I I like the fact that there, as you pointed out, there are some kernels of truth in all of the shenanigans that are that are going on. Yeah. I will say this has nothing to do with what we're talking about, but I think Fred Gwynn, as the as the judge in there, is fantastic. He reminds me of a judge that used to be on the cross by the name of Michael Mulroy, who had a very deep voice and a somewhat intimidating presence for many people. Um so I really thought Fred Gwynn was uh wonderful, and that was a more than a kernel of memory for Judge Mulroy.

SPEAKER_02 51:49

Yeah. And to just tie it in, right, to the sanctuary in the jungle. I mean, in many ways, uh we we were critical of the judge in this case in a couple of times, but he made some rulings that help to create a sanctuary. The prosecutor again helps to create a sanctuary by making that decision. Right. The sheriff ends up being the hero who goes out and gets the answers.

SPEAKER_03 52:10

The sheriff is I that's that was fantastic. The fact that they have the sheriff at the request of the defense attorney check on something that literally exonerates the two boys.

SPEAKER_02 52:20

Yeah, and uh maybe we'll cut this, but you know, I'd actually watched my cousin Vinny this summer in the in the in the fall I had a trial, and I for the first time in my career, I referenced my cousin Vinny uh in my closing argument because there was an officer that was involved uh here in St. Craig County that I thought was the hero. Right. Uh, and he did go and do some things. Um, but as I told the jury, I was like, this isn't my cousin Vinny, right? The prosecutor in this case has not decided to dismiss it, despite the sheriff coming forward with evidence that might be worthy of dismissal. Right. We're not in the movies anymore here in real life. You, the jury, needs to come back and deliver the justice that uh my client deserves. And thankfully, they did that. They did. Uh, but I don't know that I'll ever reference my cousin Vinny again, but the fact that I did it was definitely getting onto that whole the sheriff as the hero. Yeah, right. Yeah. So well, thanks again for joining me, Keith. This was wonderful. We'll have to uh maybe take input from uh listeners or our producer on what the what the next movie or the next legal movie we want to talk about.

SPEAKER_03 53:28

We're gonna break down that. Uh that was fun. Thank you. Thanks, sir.