SUPPLEMENTAL MATERIALS FOR THE OX BOW INCIDENT
Go to the Learning Guide for this film.
This film conveys powerful lessons in justice, conformity, masculine role identity, guilt and the results of mob rule.
A SHORT ESSAY ON DUE PROCESS OF LAW IN THE TRIAL OF CRIMINAL CASES
"Due process of law" protects people from the arbitrary use of government power to take away life, liberty, or property. It ensures that government action conforms to principles of fundamental fairness in all the different situations in which government affects the lives of people. Its goal is to ensure that government upholds principles of liberty and justice which inhere in the very idea of a free government and are the inalienable right of citizens.
In the United States, in criminal cases, the concepts of fundamental fairness are not limited to the specific requirements of the Constitution and the Bill of Rights but also include "those canons of decency and fairness which express the notions of justice of English-speaking peoples". They extend from petty criminals even to "those charged with the most heinous offenses," Due process partakes "of the very essence of a scheme of ordered liberty,"
In criminal cases, due process includes the following protections that the posse did not afford to the three men that were hung:
- The accused is presumed innocent until proven guilty;
- The accused has the right to be informed of the charges against him and must be given time to prepare a defense;
- The accused has the right to an attorney, and if he cannot afford an attorney, one will be appointed to represent him; Gideon v. Wainwright (1963) 372 U.S. 335.
- The trial must be presided over by an impartial judge;
- The judgment must be rendered by an impartial jury;
- The prosecution must prove guilt beyond a reasonable doubt;
- The decision of the jury must be unanimous, i.e., every juror must be convinced of the accused's guilt beyond a reasonable doubt; one dissenting juror will "hang" the jury and prevent conviction;
- The accused has the right to remain silent, also called the privilege against self-incrimination;
- The accused has the right to bring witnesses favorable to his cause;
- The accused has the right to a public trial;
- No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury; Fifth Amendment.
There are many other protections for a person accused of a crime which are not implicated in the lynching shown in the film but which are essential for due process. A few of these are: the prohibition against double jeopardy; the right to a speedy trial; the right of the accused to be confronted with the witnesses against him or her; freedom from cruel and unusual punishment; protection from ex post facto laws; and the right to appear before the jury dressed in street clothing, not in prison uniform.
The rule of law, which in the Western Democracies is strongly linked to the concept of freedom is not, however, democratic. In fact, due process is always anti-democratic because it always puts limits on the power of the mob or of the elected officials, the representatives of the majority, and it protects the individual.
Additional Discussion Questions:
Continued from the Learning Guide...
ENGLISH LANGUAGE ARTS DISCUSSION QUESTIONS
1. See Discussion Questions for Use With any Film that is a Work of Fiction.
2. The film's protagonists come into a town that is steeped in the masculine ethos of the time. What action, dialogue or visuals make this an important part of the film's presentation? Suggested Response: The men come into town in pairs, promulgating the myth of male camaraderie; there is no feminine imagery in the town other than the painting over the bar which is sexual in nature; the posse welcomes a woman called Ma, who is as hard and masculine as any man; the men are told that the only thing there is to do in the town is eat, drink, sleep, play poker or fight; Gil, who is cranky and ill-tempered, orders whiskey and is soon in a fight; Art says of Gil: "Whenever he gets low in spirits or confused in his mind, he doesn't feel right until he has had a fight." Later, when the stage coach comes along, jealousy is expressed between the new husband of Rose Mapen and Gil, who had come to town in hopes of seeing her again.
3. When Art and Gil first come into the saloon and order drinks, Gil looks longingly at a painting behind the bar. The comment is made that the woman in the painting is within reach of the shadowy man shown standing behind her, but there is nothing he can do about it. In what sense is this painting a symbol for the action and theme in the film? Suggested Response: The symbol works on two levels: Gil is like the man in the painting in that he knows what he wants, but he cannot reach the men to turn them away from the lynching. The woman in the painting can be seen as a symbol for justice; it too is out of reach. Justice is often represented as female. Remember the statute of "blind justice" that stands in front of many court houses.
4. Conformity is often driven by fear. Art and Gil are wary that they may be the targets of the posse, thus they conform, reluctantly, to the energy behind mob rule. What factors lend to this fear? Suggested Response: Both men are seen as outsiders. Gil's fight with Farley and makes Farley appear foolish, thus suggesting retribution. One man says that this may be Art and Gil's "rope-tie party." The masculinity conflict raised by Major Tetley in his relationship with his son makes the crowd feel the importance of adhering to the strict rules of manhood which require bold action rather than reasoned behavior and the adherence to rules of law.
5. Mr. Davis tries to use reason to get the men to wait until the sheriff returns. What are some of the arguments that the men present to counter his appeal for rule of law? Suggested Response: One man mentions that justice is too slow and is subject to lawyers' tricks that can carry on for six months. Another suggests that and it is too easy to evade justice with feminine appeals to mercy. Democratic logic is used in the decision to rely on the will of the majority, thus muting an individual voice. But the essence of due process is not democratic. In fact, due process is anti-democratic because it always puts limits on the power of the elected officials, the representatives of the majority, and protects the individual.
6. The events of this film occurred in 1885, long after the end of the Civil War. Yet Major Tetly wears his Confederate uniform as a symbol of authority and that authority is respected by the others. What does the acceptance of Tetly's authority say about the men who formed the posse? Suggested Response: The men only understand the trappings of authority; their respect is superficial, influenced by the fact that the Major is rich and carries himself with bold dignity. The men can see the Major's abusive attitude toward his son whose "manhood" does not measure up to what is acceptable. It is implied that the men defer to the Major in an effort to be seen as masculine themselves. It is also probable that most of the men fought for the South in the Civil War.
7. What does the preacher add to the moral force of the film? Suggested Response: The preacher will not carry a gun nor drink whiskey and he tells Gil he is familiar with mob rule as he had seen his brother lynched. The preacher represents the viewpoint of religion and serves to point out the absurdity of killing and then praying over the event. He says that the "Lord cares about what's happening up here tonight," and sings a spiritual once the men are hanged. He is powerless, as is religion in circumstances such as these. Thus, ironies are revealed.
8. What is significant in the characters of the three men who are caught and later hanged? Suggested Response: Donald Martin is reasonable, honest and intelligent, yet he is powerless against the mob. He is a family man. The old man, Hardwicke, is delusional and deserving of pity. The Mexican, Martinez, is masculine, strong and dignified. He stands in direct contrast to the superficial masculinity represented by the mob, including Gil and Art who are unable to stop the lynching.
9. The film uses darkness to establish tone yet the lynching does not occur until daylight. What point is being made in this staging? Suggested Response: The nighttime establishes the dark and dismal tone of the events in the film suggesting that such behaviors are evil. An interesting shaft of light falls on the Mexican as he kneels in confession before the Spanish speaking member of the mob. Waiting for Martin to write his letter and then to hang the men in the morning shows a lack of shame and an effort to bring to light the moral depravity of what is happening.
10. Seven men stand against the mob in hopes that the accused men will be taken into town for a trial. In an actual trial, this is six more than necessary to declare a hung jury. Why does this carry no weight with the posse? Suggested Response: Since the men had decided to support the concept of majority rule, the number of men withholding consent doesn't matter, so long as they are in the minority. There were over two dozen men in the posse.
11. Once the men learn that Kinkaid is not dead, remorse and guilt become the dominant emotions. How are these feelings manifested? Suggested Response: Gerald Tetley rails against his father who shoots himself. The men sit in somber silence at the bar while Gil reads the letter written by the doomed man to his wife and a collection of money is taken to help the bereft family. Gil and Art determine to take the money to Martin's wife themselves, suggesting they will look after the woman and her children.
SOCIAL STUDIES AND CIVICS DISCUSSION QUESTIONS
The following questions assume that classes have been given the information in the Helpful Background section. They are designed to expand students' understanding of due process. Depending on the age and sophistication of the class, teachers may have to provide them with the answers. Questions 3 and 4 should be asked together.
1. See the Quick Discussion Question.
2. Name four important elements of due process of law as it is applied to criminal cases that were not followed by the posse in this story and explain why each is important. Suggested Response: Examples are: notice and the right to appear and defend; the presumption of innocence; unanimous vote required for conviction; proof beyond a reasonable doubt; the right to confront your accuser; the right not to testify against yourself; the right to a jury of your peers; the right to an impartial judge; and the right to an attorney.
3. Could the entire posse have been prosecuted for criminal conspiracy to commit murder or for manslaughter? What about the seven members of the posse who voted against hanging but stayed around to watch? Suggested Response: Certainly, the men who voted for conviction and carried out the killing could be prosecuted for murder or manslaughter. The seven dissenters could also have been prosecuted. Their legal duty, having participated to some extent in having captured the men and in having participated in the posses' decision-making process, was to try to stop the posse from killing the men, or at the very least, they should have left and stopped their participation once it became apparent that the accused men were going to be hanged.
4. Assume that a prosecution was brought against the posse for murder or manslaughter. At what stages of the legal process could the seven dissenters have received different treatment than the other members of the posse. Suggested Response: There are many points in the legal process at which the seven dissenters could have received more lenient treatment than the rest of the posse. Here are three: (a) whether the prosecutor should actually file charges against any person is within the prosecutor's discretion; the prosecutor can always decline to prosecute the seven dissenters or charge them with a less serious offense; (b) the jury could find them guilty of a lesser charge, such as manslaughter rather than murder; and (c) the judge could give the seven dissenters a lesser punishment even if they were convicted of the same offense as the rest of the posse.
5. Why does "due process of law" require that before a person can be convicted of a crime, every member of the jury must vote for conviction? Suggested Response: This is an attempt to redress the imbalance of power between the government, which is usually very powerful, and the individual defendant who is usually not powerful and who usually has few resources. Situations in which one or two dissenting jurors will prevent a jury from reaching a unanimous verdict or in which one dissenting juror will eventually convince the other jurors to change their mind and acquit a defendant do occur. See Learning Guide to 12 Angry Men section on Parenting Points.
6. What is "proof beyond a reasonable doubt"? Why is it required for "due process of law" in criminal cases?
Suggested Response: California Criminal Jury Instructions, CALCRIM No. 221, provides that:
Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the allegation is true. The evidence does not need to eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
Due process of law requires proof beyond a reasonable doubt because of a decision by society that no one should be punished by the state unless after hearing all the evidence a jury has an "abiding conviction" that the accused has committed the offense. Sir William Blackstone, a respected judge and legal author in England, just before the American Revolution, wrote that it was "better that ten guilty persons escape than that one innocent suffer." Commentaries on the Laws of England, 1765–1769. Blackstone's views on the law and this formulation have been accepted by most legal scholars in the United States. The requirement of proof beyond a reasonable doubt is tied to the presumption of innocence and the requirement of a unanimous jury. These are all ways in which the process of a criminal trial is used to prevent the state from taking arbitrary action against individuals. These rules are important, particularly in times of civil strife. For example, during the protests against the Vietnam War, the government headed by President Richard Nixon, tried to prosecute and imprison the protesters, who were mostly young people. Very often juries acquitted the defendants.
In deciding whether the People have proved an allegation beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received during this trial. Unless the evidence proves an allegation beyond a reasonable doubt, you must find that the allegation has not been proved and disregard it completely.
7. What does this film tell us about the importance of due process of law in today's society? Suggested Response: There is no one correct answer to this question. Strong answers will refer to at least one of the ways in which due process was violated in the story and relate that element of due process to the needs of people in modern society. The movie teaches that due process of law can prevent a person from being punished for a crime he didn't commit. Justice is one of the most basic of human rights. Without justice, there is no reason to obey any of the rules of society.
Continued from the Learning Guide...
AN EXERCISE IN CREATING THEMATIC STATEMENTS
USING THE OX-BOW INCIDENT
(The film or the book)
Length: One 45 to 55 minute class period.
Learner Outcomes/Objectives: Students will practice the ability to derive theme and create thematic statements for a work of fiction.
Rationale: This exercise will assist students in deriving theme and writing thematic statements. Note that the same process can be used with any fictional work.
Preparation: Show the film The Ox-Bow Incident and review selected ELA Discussion Questions with the class. Write on the board each of the four topics listed below leaving enough room beneath each topic to write out several possible thematic statements.
Step by Step:
1. Have students take out a piece of paper and a pencil and have them on their desks before the exercise begins. They should write out the four topics leaving enough space below each topic for their thematic statements. The four topics are: justice, conformity, masculine role model, and guilt.
2. Define Thematic Statement: A thematic statement expresses a theme of a work of fiction in a single sentence.
3. Define Theme: If necessary, familiarize students with a helfpul definition of the term "theme". A suggested definition is set out below.
A theme in a poem, novel, story, play or film is a message about life or human nature which the author or filmmaker believes to be universally true. A theme involves an observation about life. It weighs, and considers actions and ideas. A theme is an arguable abstraction that proposes a universal truth about life or human nature.
4. Ask students, either individually or working in small groups to write on their paper one sentence that makes clear what the film is actually saying about each topic.
A theme is not merely a topic, a suggestion, a fact, or a question. This is because a theme is an important meaning contained in the work. Topics, such as "love" and "justice" have no meaning. A suggestion is not emphatic enough to convey meaning. A fact, such as "Obese people have a lower life expectancy than people who are not obese" is universally true and perhaps very important for obese people and those who love them, but it's not interesting enough for a work of fiction. A question has no meaning in itself. The meaning is in the answer.
Nor are moral judgments or directives about how people should behave, proper statements of theme. They are not observations about life or about human nature. Words like "should" and "ought" do not belong in thematic statements.
A theme does not summarize the plot of a work of fiction nor does it mention characters by name. These are not statements about life but about the work itself. Instead, themes may refer generally to types of situations and types of people such as men, women, leaders, the accused, vigilantes, society, young people etc.
Authors usually try to communicate messages that are more complex and subtle than trite statements or aphorisms. This is especially true of works of fiction that are presented to students in English classes. Themes of "love is blind" or "what goes around comes around" don't usually make for interesting reading or viewing. When stating a theme, look for something less obvious and more intriguing.
There may be more than one theme in a work of fiction.
In stating a theme be very careful about the use of superlatives and absolutes; don't use them unless you are absolutely sure. The "best," the "worst," "all," "none," "everyone," "always" and the like are usually not the type of precise thinking used by authors seeking to state universal truth.
Most themes are not directly stated in the work; instead, they are implied. If a theme is not immediately apparent, it can be derived by focusing on the various elements of the work, such as title; plot; motifs; symbols; changes in the characters over the course of the story, or realizations characters come to have during the story. Sometimes, hints as to theme can be found in unusual objects, mysterious characters, significant animals, repeated names, songs or any element in the story that hints of a meaning beyond the surface.
Select four students or a student from each group to write their thematic statements on the board and see if, through discussion, the class can agree on one theme for each topic. The students may enter into debate over definitions of words and should be able to refer to the film or book in order to support their points.
Examples of possible thematic statements follow the topics.
- Justice cannot be achieved without due process.
- Injustice is a function of mob rule.
- Justice requires the application of reasoned judgment and the ability to delay the gratification of punishing those thought to be guilty of a crime.
The following are not good examples of thematic statements on the topic of justice:
- Justice is an important value.
- Vigilante justice is wrong.
- The value of justice.
- Fear drives conformity.
- Conformity requires compromise.
- Individuality and conformity cannot coexist
The following are not good examples of thematic statements on the topic of conformity:
- You should not give in to conformity.
- People who conform give up a part of themselves.
- The men in the mob conformed to the dictates of the Major.
Masculine role identity:
- Immature ideas of masculine identity require strict conformity.
- Fear drives adherence to the requisites of an immature and strictly defined male identity.
- Standing up for what is right is a requisite for a mature male role identity.
The following are not good examples of thematic statements on the topic of masculine role identity:
- Men feel they have to be tough to be men.
- A man should be himself no matter what others think.
- Men who are afraid to stand up for what is right are not manly.
6. Assigment/Assessment: Teachers can require formal theme essays based upon the various thematic statements. Each essay must cite direct reference to action or dialogue in the film followed by comment on the citation and its connection to the theme.
- Relief from guilt requires reparative action.
- Guilt is a consequence of committing an injustice.
- Self reproach can destroy identity.
The following are not good examples of thematic statements on the topic of guilt:
- Guilt is a terrible thing.
- People should avoid actions that will make them feel guilty.
- You feel guilty when you go against your beliefs.
WRITING ASSIGNMENTS -- ENGLISH LANGUAGE ARTS
1. Present students with the information in Martin's letter to his wife:
My dear wife: Mr. Davies will tell you what's happening here tonight. He's a good man, and he's done everything he can for me. I suppose there's some other good men here, too, only they don't seem to realize what they're doing. They're the ones I feel sorry for 'cause it'll be over for me in a little while, but they'll have to go on remembering for the rest of their lives.
A man just naturally can't take the law into his own hands and hang people without hurtin' everybody in the world, 'cause then he's just not breaking one law but all laws. Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people ever have found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody's conscience except a little piece of the conscience of all men that ever lived?
Ask students to write a formal explication of this powerful paragraph in which they explain its meaning and comment on the value of the thoughts presented.
2. Have the student's write an alternative ending for this film in which they find a way for the mob to avoid the lynching and to return the men to town for a trial. This assignment can be done in small groups and presented to the class to determine which of the various endings may best illustrate theme and seem logical in its resolution.
3. Tell the students to write a paragraph characterizing Major Tetley and his son, Gerald. Ask them to consider whether the son's character may be the cause or the result of the Major's entrenched authoritarianism.
4. Ask the students to write an opinion piece about the inability of Gil and Art to stop the events that resulted in the hanging. What explains their powerlessness in the face of the posse? Seven men voted with Gil and Art to let the men live. How might they have affected a better outcome?
5. Students who have read the book will know that when the posse returns to town, Sheriff Risley hears about what had happened but vows to remain silent and does nothing about the lynching. He takes ten of the men in a new posse to find those who had assaulted, but not killed, Kinkaid. Ask students to write a paragraph about what is changed in terms of theme with the film's rewritten ending and which of the two is more satisfying to a viewer.
WRITING ASSIGNMENTS -- SOCIAL STUDIES AND CIVICS
6. Have students look at the list of points important in due process presented in the Helpful Background section of this guide. Then tell them to illustrate using scenes, dialogue or action how each of the points considered essential to justice is abused in the film.
7. Have students research the origins of due process and write a paper in which they detail at least ten rights that are guaranteed to the accused in criminal cases and describe the reason for those rights.
8. Have students review cases that have resulted in Supreme Court decisions reaffirming the value of due process. They may find cases wherein decisions have been reversed because of the state's failure to adhere to the required procedures.
9. Have students write an opinion piece on their own relationship with due process as it may exist in their school. For example, what is the process that may result in suspension or expulsion from school in response to a disciplinary action?
10. Ask students to research and write about the concept of "reasonable doubt." The information can be presented to the class as a whole and put to a debate.
See additional Assignments for use with any Film that is a Work of Fiction.
Social-Emotional Learning Discussion Questions
1. Why were Carter and his partner worried that they might be accused of being the killers and lynched themselves? What does this tell us about the risks of mob rule and the importance of due process? Suggested Response: It tells us that lynch mob rule is capricious and unreasoning. There was nothing to tie Carter and his partner to the slaying except the bare circumstance that they had just come into town. This is not enough for a prosecution, let alone a conviction. Still, because they knew that lynch mobs weren't rational, they were afraid.
2. Donald Martin accuses the posse of not being "white men" because they insist on an immediate hanging and won't turn him and his friends over to the sheriff. This is a backhanded racial slur against blacks. It is also very ironic. Explain why it is ironic. Suggested Response: It's ironic because one of the classic uses of lynching in the U.S. was Southern whites lynching black men. Thus, being "white men" was no argument for the idea that they would respect the rule of law.
3. Most of the men in the posse just go along with the crowd. What do they get in return? Suggested Response: Either guilt and regret, or a lifetime denying the guilt or regret. Denying guilt and regret is probably worse than feeling it because the denial prevents the person from resolving the issues being denied.The emotional energy of the guilt and regret, prevented from being resolved, stays and festers and comes out in other negative behaviors or feelings that the person will not understand and may not be able to control.
Discussion Questions Relating to Ethical Issues will facilitate the use of this film to teach ethical principles and critical viewing. Additional questions are set out below.
(Play by the rules; Take turns and share; Be open-minded; listen to others; Don't take advantage of others; Don't blame others carelessly)
1. Is there a difference between "due process" and "fairness?" Suggested Response: Due process is a legal doctrine that fleshes out the concept of fairness in relation to governmental action, especially situations in which there is a trial.
[See additional questions in the "Justice" section above.]
Bridges to Reading:
The novel from which the film is derived is excellent reading for good readers ages 12 and up.
Links to the Internet:
Rights of the Accused by the U.S. Department of State; and
Procedural Due Process: Criminal Cases from the U.S. Supreme Court Center, at footnotes 974 - 978.
Selected Awards, Cast and Director:
Selected Awards: 1943 National Board of Review: Best Picture; 1944 Academy Awards Nominations: Best Picture. The Ox-Bow Incident is listed in the National Film Registry of the U.S. Library of Congress as a "culturally, historically or aesthetically significant" film.
Featured Actors: Henry Fonda, Dana Andrews, Mary Beth Hughes, Anthony Quinn, William Eythe and Harry Morgan.
Director: William A. Wellman.
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