Fortunately, There Were Witnesses

Something bad happened. Fortunately, there were witnesses. Unfortunately, the witness testimony is not just inconsistent, but irreconcilably contradictory. Sounds like every case that makes it to trial, right? But readers of this column will also recognize this as the situation explored by Akira Kurosawa's 1950 cinematic masterpiece, "Rashomon," winner of the Venice Film Festival's 1951 Golden Lion. Many of Kurosawa's films address legal issues, but "Rashomon" leads the charge with its focus on bias, credibility, impeachment, and the relativity of factual truth. See Medine, "Law and Kurosawa's Rashomon," 20 Lit. Film Q. 55 (1992).

The film's plot is simple: A husband and wife enter the woods, where they encounter an infamous bandit (played by the amazing Toshiro Mifune - see the biopic "Mifune: The Last Samurai" (2015)), who incapacitates the husband and engages in intercourse with the husband's wife before his eyes. The husband then ends up stabbed to death.

So what happened?

At a police investigation, the captured bandit explains that he tied up the husband through cleverness, overcame the wife's reluctance through his skills of seduction, and then set the husband free so they could honorably duel. After a fierce and skillful battle, the bandit slew the husband with a dagger. The gist of this tale is that the bandit is one heckuva tough guy, deserving of his fearsome reputation, who proudly admits to killing the husband.

The wife testifies that the bandit raped her and then left. She untied her husband, but he is extremely upset with her for not resisting her rape more strenuously. Both are in a highly emotional state, during which she faints while holding a dagger. Upon reviving, she finds her husband dead with the dagger in his chest. The gist of this version is that the bandit did not kill the husband, rather the wife did.

Next, the deceased provides testimony through a medium. (The subpoena power was apparently rather expansive in medieval Kyoto.) He testifies that after the rape, the bandit asked the wife to run off with him - and she agreed! Moreover, she then asked the bandit to kill her husband. The bandit is stunned by her cruel request and instead asks the husband whether he should instead kill the wife. Shocked by this turn of events, the wife flees. The bandit gives up chasing her and unties the husband. The husband, despondent and disgraced, kills himself.

Finally, there is the testimony from a passing woodcutter (portrayed by the wonderful Takashi Shimura) who claims he saw what happened. He says that the bandit begged the wife to run off with him, but instead she managed to free her husband. The men are paralyzed, staring at each other, wondering whether either one really wants her, and doubting whether she's worth fighting for. Through her scolding, she chides them into combat, but the battle is a sad exercise in fear and trepidation, with neither man exhibiting any skill. By sheer luck, the bandit manages to kill the husband.

The film's genius is how each version contains elements of truth, yet they cannot be squared. There simply is no way to fit these pieces together to get to a single version of events. (And if only four versions isn't confusing enough, the short story on which "Rashomon" is based, Akutagawa's "In a Grove," has seven competing versions.) Some filmgoers find this annoyingly frustrating, others bask gleefully in the ambiguity. Lawyers yawn. After all, puzzles created by inconsistent stories and questionable factual accuracy are a litigator's daily toil. And yet it's nice to have a name for this situation: Hence "Rashomon" cases.

Over the years, many federal courts followed suit. E.g., Greco v. Livingston Cty., 774 F.3d 1061, 1062 (6th Cir. 2014) ("Rashômon and Rule 56 of the Federal Rules of Civil Procedure rarely take the stage together. But the conflicting accounts of this dog biting show that Akira Kurosawa and the authors of Civil Rule 56 shared an insight: that different people sometimes see the same event differently, whether due to different vantage points or self-interest."); U.S. v. Flores-Rivera, 787 F.3d 1, 9 (1st Cir. 2015); Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co., 2015 WL 9315539 (W.D.Wash.); Flemming v. Warden, 2012 WL 3693859 (E.D.Cal.) ("Because of the Rashomon-like testimony of the various eyewitnesses ... we summarize each individually, rather than attempting to compile a unified account."); U.S. v. Memoli, 333 F.Supp.2d 233, 234 (S.D.N.Y. 2004) (Rakoff, J.) ("In Rashomon-like fashion, no two witnesses gave the same account of what occurred, and several of the witnesses gave testimony that was either internally inconsistent or so implausible as to defy credulity.").

While "Rashomon" is cited nationwide, it is most appreciated in California, home to Hollywood and a hotbed of film buffs. Golden State judges - those hip, art house habitués - eagerly don their horn-rimmed glasses, berets and black turtleneck sweaters to invoke "Rashomon." For example: People v. Correia, 43 Cal. Rptr. 2d 302, 303 (1995) (Kremer, J.) (depublished) ("This case involves a brawl at [a] wedding reception .... Each witness, as in the story Rashomon, told a different version of what occurred."); In re Arredondo, 2007 WL 738777 (Rubin, J.) ("our review of the neighbors' testimony and the family's declarations does not find any differences beyond what one might expect whenever several people view one event." (See Rashomon (1950), Akira Kurosawa.)"); Garcia v. Jerry Garcia Estate, LLC, 2010 WL 2724752 (the parties' positions are "akin to the story in the 1950 movie Rashomon where four people seeing the same incident see it very differently"); Huscher v. Wells Fargo Bank, 121 Cal. App. 4th 956, 967 (2004) (Rubin, J.) ("By hand-selecting the interpretation of Irvine [a certain precedent] that best suits their respective needs, they offer up, Rashomon-like, their competing perspectives."); People v. Avelar, 2011 WL 553760 (Sills, J.) ("We will therefore take a page from Kurosawa's book, and provide three accounts of that event, Rashomon-style."). California's Supreme Court has yet to cite "Rashomon," but New York's high court has. Blossom View Nursing Home v. Novello, 4 N.Y.3d 268, 273 (2005) (noting "the wisdom of Rashomon: perspective distorts reality and makes the absolute truth unknowable").

"Rashomon" also appears in numerous law review articles. E.g., Kamir, "Judgment by Film: Socio-Legal Functions of Rashomon," 12 Yale J.L. & Human. 101, 103 (2000) ("objective truth is unattainable and perhaps nonexistent, and that the legal process is a place where subjective narratives can only be evaluated against each other"); Althouse, "Invoking Rashomon," 2000 Wis.L.Rev. 503; Taslitz, "Patriarchal Stories I: Cultural Rape Narratives in the Courtroom," 5 S.Cal.Rev.L. & Women's Stud. 387, 411 (1996) ("Rashomon, is still the best illustration of the importance of perspective in rape."); Gerken, "Rashomon and the Roberts Court," 68 Ohio St. L.J. 1213 (2007); Jewel, "The Bramble Bush of Forking Paths: Digital Narrative, Procedural Rhetoric and the Law," 14 Yale J. L. & Tech. 66, 96 (2011) ("in much the same way that Rashomon presents competing pictures of reality depending on who is telling the story, lawyers should look at facts from multiple perspectives. The lesson from Rashomon is that facts can be indeterminate; one person's perception of a fact could be another person's untruth."). "Rashomon" is also a valuable teaching tool. See Sokolow, "From Kurosawa to (Duncan) Kennedy: The Lessons of Rashomon for Current Legal Education," 1991 Wis.L.Rev. 969 (because "Law schools are typically good at teaching students about theory and bad at teaching them about facts," one law professor screens Rashomon).

In an era of "fake news," "truthiness" and "post-truth," examining how best to discern reality from subjective perception is more critical than ever. Many movies use multiple perspectives to explore the problem of uncovering the truth through divergent accounts. But "Rashomon" remains the quintessential classic. Reference it as appropriate. Just be sure to write off from billing the time spent by that young associate searching for a citation to that "Rashomon" case you mentioned.