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February 02, 2006


Jason Steed

This doesn't touch directly on your questions about genres, but I'm also intrigued by the issues/questions this raises with regard to the notion of "performance" as it relates to identity in the "real world" (as opposed to, or perhaps as it aligns with, identity in textual narratives). Wasn't Truman Capote himself "Truman Capote"?

I recall a book on Jerry Lewis that I reviewed a few years back -- now I can't remember the title -- but it was all about Lewis's persona, the "Jerry Lewis" identity that Lewis constructed and performed, in and out of and through and despite his films.

That is, don't we all construct narratives of our "Self," and struggle/strive to perform ourselves in ways that conform to and extend that narrative?


is there something about film -- the way its made, its history as a cultural form, how it is received -- that distinguishes it from books in how we expect film to "tell us the truth" about some lived experience?

Well, yes, there's a genre of film wherein we have an expectation of historic accuracy. Documentaries are expected to be accurate portrayals of actual events. We would be rightfully upset to discover after seeing a documentary that some of the scenes were altered or faked without appropriate notice to the viewer.


At the risk of stating the obvious, I think that there is something about film that can be summed up in the phrase memory researchers often use: "memory is not like a videotape." What they don't say is that videotape is not like a videotape either! I am fascinated by the legal cases in which videotapes that appear to be clear evidence of something (like the Rodney King case) end up getting picked apart frame by frame, resulting in multiple interpetations of a medium that many people think of as inherently accurate.

Andrew Jarecki exploited that fact mercilessly, I think, in Capturing the Freidmans. Those home movies made the whole film seem so "real." But it turns out that the movie is quite deceptive. But the deceptions are almost all errors of omission.

As for Capote, which I have not yet seen, it seems to me that the phrase "based on a true story" has come to carry the meaning that the story, as told, is *not* true. "Based on" does all the work. Which leaves the wonderful question--Mr. Frey adside--why even a remote and dubious connection to "a true story" makes an embellished story so much more popular than one portrayed as pure fiction.

Corey Rayburn

I recently saw a performance of The Exonerated and stuck around for the discussion afterwards. I asked the performers and the director about the tension between reflecting the "authentic" stories of "real" exonerated people and the desire to make their particular political point. Specifically, I was concerned that there was an immense selection bias in these stories in that the cream-of-the-crop of the Exonerated were chosen. This bias was further accentuated by the dramatic performances of the actors on stage.

Having worked on a death penalty appeal, published about related death penalty issues, and having read so many death penalty cases, I found the Exonerated on stage to be very dissimilar to all of the cases I had read. The people on stage were eloquent (with only some mild speech impediments), insightful, and otherwise presentable. By making the characters sympathetic to the audience, it made you wonder how the system could have ever failed these exonerated in the first place.

In response to my question, the cast and director fell back on the idea that 90% of the lines were actually spoken by the "real" exonerated. They didn't see any tension between authenticity and dramatic license because they were using the words of "real" people.

While I hold no illusions that I was watching a "real" translation of the story of the Exonerated, I was a little disappointed that the actors did not seem aware of the ways they influenced the construction of the exonerated characters. And then I remembered that actors don't have the same agenda as academics. Their focus is not to give voice to the down-trodden. They just want to spin a good story (and maybe make a political point).

I don't believe there such a thing as a "neutral" or "objective" portrayal of "real" events, but I guess I wish the actors at least had that same awareness. It may not change their performance, but it would make me feel a little better.


Hmmmm. Ninety percent real, huh? Interesting.

That's not what the opening lines of the play asserts. The play begins with the announcer saying: "The six stories you are about to hear are true. Every word was taken directly from a court document, deposition, testimony or letter."

Adam Litpak examined the issue last year in an NYT article that seems to indicate that the Sonia Jacobs case is seriously misrepresented.

It seems to me that labeling someone "exonerated" who actually pleaded guilty to murder is, in and of itself, playing rather fast and loose with the truth.

Dean C. Rowan

RCinProv has neatly explained my own take on this question, which always reminds me of the King video. "[V]ideotape is not like a videotape either" is a perfect summation. Another angle, apropos of Hoffman's remarks: there's no such thing as acting on film. Whatever it is screen "actors" do, it shares nothing with what stage actors do, and the filmed result merely introduces another level of distortion.

Corey Rayburn

The version of the play I saw had an announcer say 90% of the lines were spoken by real people. I don't know if that announcement has changed for different groups doing the play.


So, in an effort to capitalize on what is a fascinating conversation so far, what do you all think about the videotaping of custodial interrogations and confessions? This is one of my new projects, part of which will be published soon (called Filmmaking in the Precinct House). What are defendants "doing" ("acting"?) when they confess on film to interrogators? What identity is a defendant performing, enacting or constituting when confessing on film? Consider the problematic nature of autobiographical films (Fellini's 8 1/2, for example). If a videotape is not like a videotape, as the Rodney King case proves (and as I have argued elsewhere in yet a different law review article on law and film), is a defendant's portrayal on film of himself as a criminal ever identical with the criminality for which he has been accused -- or at least sufficiently identical for the legal system to convict him on the film alone?

I just finished watching the film "Confession of Bernard Goetz," a fascinating documentary with footage of Goetz's confession, the juror's reactions and commentary from lawyers of the men Goetz shot. What struck me was how performed was Goetz's recounting of the shooting to the NH US Attorneys. He was self-consciously telling a story about himself. (Does this self-consciousness counsel against the "truth" of the matter or in favor?) And an interesting outcome (although painful to this viewer) was that the jury both believed him -- he was reasonably frightened such that shooting the four men was self-defense -- and didn't believe him -- they disregarded as embellishment or delusion that he returned to shoot for a second time one of the men saying "You look alright. Here's another." Had the jury believed this last statement, his self-defense claim would have been significantly weakened. But by allowing that the confession was both "honest" and "deluded," they could acquit him.

What does this say about the "truth" of self-representation on film, one of those places in law where film is considered paramount and indisputable form of evidence?


Thanks for that clarification, Corey. I was quoting from the Off-Broadway production. I'm glad to know that someone had the integrity to change that claim. Now I wonder: how far below 90% would it have to be to merit the phrase "based on"? :-)

Dean C. Rowan

As if the conversation isn't already overdetermined--Prof. Rayburn's lament about actors' devotion to an artful story at the expense of respect for the human lives whose sufferings inform the story; Prof. Silbey's curiosity as to Goetz's artifices; the questions of the relationship of mimesis to evidence, and of the official (quite serious) to the performed (rather playful)--I'll add another twist. Truman Capote, of course, was himself an artificer in many ways. Here's a blurb from a web site for teen readers, for example: "Capote's nonfiction novel IN COLD BLOOD (1966; film, 1967) was based on a 6-year study of the murder of a rural Kansas family by two young drifters." "Nonfiction novel" is priceless in this context, as is "based on...." A question, then, emerges as to how we would expect Hoffman to portray accurately a character whose very being was likely itself a series of portrayals, for instance, those as author/reporter of his pseudo-nonfictional work and those as self-fashioned celebrity?


"Nonfiction novel." I have not heard that one before. But there is a whole genre, I learned only a few years ago, called "creative nonfiction." And as Google just told me: there is also www.creativenonfiction.org. I need to know more about how creative nonfiction writers differentiate their craft from, well, the old-fashioned non-creative ones.

(Sidenote: I generally consider the blog medium informal enough that I jumped to using Prof. Rayburn's first name, even though I don't know him. I did not mean any offense. And I also am not hiding behind RCinProv, although my TypePad Profile does not seem to be displaying the details I put there, including my email link: [email protected])


Are viewers upset that Hoffman isn't really Capote, you mean? Or that the story isn't really the real story? They shouldn't be. I concur completely with an earlier commenter: one of the meanings that the phrase "based on" carries is "not."

When I first heard about the now-notorious James Frey and his now-notorious lie, "A Million Little Pieces," I will admit I was nonplussed. So a memoirist lied, and a bunch of people bought his book as a result. Big deal. Anyway, literary hoaxes have a long and noble history. Maybe someone who bought Frey's book as an alternative to the therapy they so desperately required might have legitimate grounds to be pissed off, but...

However, now that I've read the first two pages of the book, I understand the outrage. And it has nothing to do with alternatives to therapy, and everything to do with why I couldn't read past the first two pages.

I think people are righteously pissed off about Frey's book because they were fooled. Not misled; not lied to; not even bamboozled: they were fooled. Made fools of. Because if, on reading just the opening couple of paragraphs of "A Million Little Pieces," you had actually brought yourself to believe that such a transparently fabricated story could possibly have occurred... then you would naturally feel badly used, not to say humiliated, when you belatedly discovered the obvious truth: Frey's book was fiction, and bad fiction at that. (So bad that apparently he couldn't sell it as fiction, which I gather he originally attempted to do.)

I mean, the book opens as its narrator wakes up alone, covered with blood and snot, with a hole in his cheek, in the middle of a commercial airline flight, for God's sake, with no idea how he got there or where he's bound; and the flight attendant doesn't bat an eye when he questions her, or when he nearly passes out trying to exit the plane. The situation is absurd on its face. And it just gets worse... for the two pages I read. I can only imagine what's to come.

I vividly remember the feeling of outrage I experienced on the day I suddenly realized - Wait a minute - BEARS CAN'T TALK! and that the author of the Paddington books had been fooling me all along! It was awful: I felt humiliated and foolish. So I can sympathize.

William McGeveran

Very interesting discussion! Capote actually coined the term "nonfiction novel" himself to describe the genre he claimed to be creating (see this Encyclopedia Brittanica article: http://www.britannica.com/eb/article-9056067). As I recall, in the film Capote/Hoffman has a line of dialogue to that effect.

So does this mean the film is a nonfiction drama about the creation of a nonfiction novel?

William McGeveran

Sorry, the parentheses messed up the link in my previous comment. Here it is: http://www.britannica.com/eb/article-9056067

Corey Rayburn

Since I'm not a professor, "Corey" is just fine.

As for Prof. Silbey's new question, I think self-representation is often more problematic than representation of others. This is especially true when the topic to be represented is something intimate or a core value.

When you represent something essential to yourself, you are simultaneously interpreting your very strong emotions while attempting to communicate those jumbled feelings through a lens of societal approval. I would say rarely when a speaker is attempting to represent themselves do we really get a "window into their soul" (at least about what they are representing).

For Goetz, it could be easy to conclude that his masculinity and projection of power drove his self-representation. Having not seen the same tapes, I'm loathe to guess further.

For confessions in general, I think you often learn more about the subject through omission and style than you can through substance (if such a distinction were possible). A confession of murder, for example, can take many forms: guilty, remorseful, proud, indifferent, bitter, etc. The style of the confession is often more telling than what the confessor is saying. And it is often the style of the confession that guides the jury's verdict (by the jury deciding which "role" the criminal is playing) rather than the nitty-gritty of the confession.

Rain Rain

"[Goetz] was self-consciously telling a story about himself.... What does this say about the 'truth' of self-representation on film...?"

I haven't seen the Goetz documentary, but maybe someone can answer me this: how aware was Goetz that his confession was being filmed? In other words, what did the fact of the filming determine about his "performance"? For isn't anyone who tells a story about himself necessarily being self-conscious? (And couldn't you say that the construction of a narrative about the self is the very essence of consciousness?)

It seems to me that when you ask, "What identity is a defendant performing, enacting or constituting when confessing on film?" you are presupposing an awareness of the filmmaking process, but you have not yet ascertained what that awareness is, nor what that awareness means to the subject. You have to look to the confessor's psychological state, otherwise you're doing pure film criticism - which is fine, but it's about the viewer and the filmmaker at that point, and probably doesn't give much insight into the confessor, which seems to be one of your main interests in doing this research.

(Though certainly it is interesting to consider the jury as a film's audience. In LA one is frequently accosted outside movie theatres by people handing out passes to "preview screenings" of upcoming movies; before you can get a pass, though, they want to make sure you don't work in the film industry, because these "previews" are actually test screenings, and the market researchers are afraid filmmakers won't respond as an "ordinary viewer" would, thereby skewing their data. Analogously, should attorneys consider people's filmmaking skills in selecting their juries?)

I wonder: are there cases where a jury has been presented with a defendant who has given two conflicting filmed confessions? And how did they respond? (Maybe the jury's reaction to Goetz's self-contradictory testimony, "disregarding as embellishment" a statement he had made, is along these lines?)

Your research sounds interesting, and I hope you'll continue to blog on it!


In response to Rain Rain's questions, Goetz was very aware of the filming of his confession, mentioning over and over on film that the attorneys present should "watch this tape again" so they are sure to understand what he is saying.

The film is worth tracking down if you're interested in these issues.

Ray Davis

" Had the jury believed this last statement, his self-defense claim would have been significantly weakened."
This is just ignorance on your part. Should the jury have believed Goetz's statement of shooting Cabey twice (not verified by any credible eyewitness), or the medical evidence that Cabey was shot once? Read up on the facts of the case, what we have here is prosecutorial misconduct - liberals don't like to hear that except if its by Republicans. "Performed" ?? I must have missed that... I suggest readers look up the case in Wikipedia (most internet legal references are crap), see the videotape, or read "Subway Gunman".


The comments on this website indicate it should be renamed "Based on Bullshit". Typical left wing crap, nothing worthwhile to offer, the posters haven't even bothered to check up on the facts.

Coach Outlet

Chief Justice Robert's decision for the unanimous Court in in the law school/military recruiting

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I genuinely enjoy reading through the piles of reprints I am sent colleagues over the year (truly, I do!).

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