Citing Movies in Motions and Memos is My Calling Card
Harvey Weinstein, Home Alone and other acts
Movies and TV shows rarely portray law and legal proceedings accurately. They can however provide useful examples of legal concepts. Advocating clients requires the ability to explain often difficult issues clearly and persuasively. It is easy for lawyers to write and argue in arcane legal jargon. It is even harder to for a listener to make sense out of it. The real challenge is distilling all of that into something that people can understand and appreciate. Jurors are real people. Judges and lawyers used to be. I like using movies to explain legal issues. I’ve asked prospective jurors if they’ve seen My Cousin Vinny (and emphasize that I’m referring to the movie, not an actual cousin). I do that to introduce the idea of cross-examination, that most of our evidence will actually be through the State’s witnesses, and also to caution against the Perry Mason trope that the defense will point out the real criminal.
Today’s decision by the New York Court of Appeals, which reversed the sexual assault conviction of movie mogul Harvey Weinstein, is a good example of other acts evidence, which I recently argued in a motion in limine in which I cited Home Alone. As the New York decision notes, “Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”
That is a standard rule of evidence: that you can’t prove A did B because he did C; more specifically that he didn’t commit the crime for which he is charged because he did some other bad things—known as bad acts or uncharged misconduct.
Other acts however can be admitted for other, limited purposes, such as to prove intent, motive, malice, absence of mistake, identity, or a common plan or scheme. I recently had a case that involved evidence of a common scheme. Connecticut case law identifies two kinds of common schemes. There are true common plans, those which are connected in the defendant’s mind, and signature cases, in which crimes are done in such a distinct manner that there could be a reasonable inference that the same person who committed one committed the other.
A clear example of signature cases, I wrote in a footnote of my motion, are the burglaries committed by the Wet Bandits in Home Alone in which they left the water running, flooding the houses. One of the bandits, Marv, refers to it as their calling card. Indeed, the officer who arrests Harry and Marv says, “Nice move...always leaving the water running. Now we know each and every house that you've hit.”
I quoted Maggie’s speech from Angels in the Outfield in an opposition to summary judgment in a religious discrimination case. We survived. I used Ace Rothstein’s “eye in the sky” voiceover from Casino in a motion concerning video evidence. That one is still pending.
Even some judges reference movies. In 2019, for example, (then) Judge Merrick Garland hailed My Cousin Vinny protagonist Vincent Gambini’s cross-examination skills in a labor decision.
I don’t cite movies or other media in all of my briefs and motions. As in any writing, you need to be smart with your sources and references, and also clear and concise.