The Silent Defendant: Some thoughts on Law and Film

• DOI: https://doi.org/10.1108/S1059-4337(2013)0000061006
• Date: 29 April 2013
• Pages: 61-79
• Published date: 29 April 2013
• Author: Yofi Tirosh

THE SILENT DEFENDANT: SOME

THOUGHTS ON LAW AND FILM

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Yofi Tirosh

ABSTRACT

The French film I’ve Loved You for So Long (2008) raises intriguing

questions about the tension between silence and speech. It centers on an

accused woman who has chosen to give no explanation in words about the

motive for her criminal act. Her silence worsens her punishment and

renders it harder to rebuild her life after her release from prison. This

essay proposes seeing this silence as a critique of law. It aims to challenge

our understanding regarding the different kinds of silence before the law

and to assess the practical consequences arising from the decision of legal

subjects to remain silent.

INTRODUCTION

Lawyering, and particularly lawyering devoted to social change, strives to

provide its clients with a voice and to translate their stories into the

vernacular of legal argument. The promise that everyone will have his or her

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This essay is based on a lecture presented at the second annual conference on public

lawyering, sponsored by the ‘‘Law Serving Community’’ Program, held at the Tel Aviv

University Faculty of Law.

Studies in Law, Politics, and Society, Volume 61, 61–79

Copyright r2013 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061006

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day in court largely rests on this effort to be heard. While true of civil and

public law, this is even more so in criminal cases: defense lawyers aspire to

convince the court that the account of the accused who denies any

involvement in criminal activity is indeed a credible one. What does it mean,

then, or what should it mean, when the defendant chooses to keep silent?

Those charged with crimes who elect not to speak usually do so in order to

avoid incriminating themselves. They exercise their right to remain silent if

that seems the best way to avoid a conviction. But what is a defense attorney

to do if the accused willfully refuses to be heard, silencing their own voice,

even if that silence works to their disadvantage? Should the attorney to

oppose the client’s decision, to struggle to break that silence in order to

enhance the position of the defense? Beyond the obvious professional and

institutional considerations, there is another level of questions: how are we

to understand this conscious choice on the part of the accused not to be

heard? Indeed, are there situations or circumstances in which such silence is

more appropriate than speech?

I will explore these questions below through a reading of the 2008

French film Il y a longtemps que je t’aime (‘‘I’ve Loved You for So Long’’)

(Marmion & Claudel, 2008). The film’s central character is a woman who

has been convicted of a serious crime while maintaining her silence

regarding the circumstances of the crime and her motivations for carrying it

out. She keeps silent during the course of the police investigation, the trial

that follows, and through the years that she sits in prison. This essay will

propose a possible reading of the film, seeing it as a text that focuses on the

tension between speech and silence. I will suggest a way for apprehending

the heroine’s tenacious reticence and will explain why it was that the legal

system – in all its institutional and personal manifestations – served as the

object of her refusal to speak.

A CINEMATIC TREATMENT OF SPEECH

AND SILENCE

The film tells the story of two sisters struggling to rebuild their relationship

after many years without seeing each other. It begins with a scene at the

airport, where they first reunite. The older Juliette waits for Le

´a to come

and pick her up. During the ride home from the airport the audience learns

that Juliette has recently been released from prison. The authorities have

recommended that she move in with her sister. The crime that sent Juliette

YOFI TIROSH62