I Am Sam: Competence on Trial
by Leesa Sylyski
I Am Sam (New Line Productions, 2001, Director Jessie
Nelson [hereinafter, I Am Sam]) is a touching movie of
the struggle of a disabled man to retain custody of his little
girl. It is a movie that pitted Sam against a seemingly unrelenting
rigid legal system, where the unfairness of processes at times
overwhelmed the viewer. However, the portrayed injustices are
not only unfair to Sam and his daughter Lucy, but also to the
viewer as a great misrepresentation of the legal system.
Moreover, the unfairnesses in
I Am Sam are in some ways similar to those portrayed in
Kramer vs. Kramer (Columbia 1979 [hereinafter Kramer
vs. Kramer]). For instance, in Kramer vs. Kramer,
the unfairness stemmed from the portrayal of how the court perceived
competence, that is, based on gender. The court in I Am Sam
seemed to base competence on usual cognitive development. I
Am Sam is a new version of an old theme, that being what
a court perceives as competence.
Throughout the film the viewer is invited to take Sam's perspective.
This is also similar to what happened in Kramer vs. Kramer.
Papke writes, "[w]e are invited to accept his perspective.
We gaze on what happens in the lawyer's office and in the courtroom
from a masculine perch" (D.R. Papke, "Peace Between
the Sexes: Law and Gender in Kramer vs. Kramer" (1996)
30 University of San Francisco Law Review at 1201 [hereinafter,
Papke]). In I Am Sam, the viewer is asked to take the
perspective of a disabled man.
Sam needed a credible witness, being one with higher education
and a status job, to help prove parental competence to the court.
Sam's friends were thus ineligible. They could not provide useful
evidence as to Sam's parenting because they themselves were disabled,
and thereby unable to make themselves understood to the satisfaction
of the court. Sadly, they were depicted as useless and pitiful.
It was not the intention of Rita, Sam's lawyer to make Sam's
friends appear ridiculous. However, she made no attempt to try
to introduce their evidence in a way where they could meaningfully
express themselves. The cross-examination of these persons, thankfully,
not true to life, was degrading to both the people and the legal
Sam's lawyer found one witness, a doctor, who provided some evidence
about being parented by a disabled mother. However, the evidence
was quickly called into question, as there was doubt as to who
actually raised the doctor. The judge did not do much to control
the Prosecutor's vocal outbursts toward this witness, a clear
misrepresentation. Prosecutors and other lawyers are not at liberty
to yell at or badger witnesses. They must act respectfully or
risk the possibility of being in contempt of court or simply
irritating the judge and precipitating professional discipline.
"Loose cannons" are not encouraged nor permitted. Furthermore,
this doctor did not know Sam or Lucy and so could not speak to
their situation, making this evidence of little weight.
The piano teacher, Ann, a last minute witness, was also made
out to be an incompetent witness due to her own disabilities
(a phobia of some sort and trauma due to her past experiences
with her father). Certainly, this line of questioning would not
be permitted in court. There is no reason why past experiences
with her father would have any bearing on Ann's testimony. It
was irrelevant, as was Ann's disability. Her perceptions as a
disabled person have nothing to do with her perceptions as a
person. She was clear in her speaking and reasoning.
The State, however, had no difficulty in finding competent witnesses.
It was rather easy to find an expert witness, a psychologist,
willing to attest to Sam's alleged harm to Lucy's development.
Also, since the first complaint was from Lucy's school, there
were competent prosecution witnesses available, such as the teachers
and principal. It is also possible that the State could have
called the police officers who had previously arrested Sam. Sam
had not understood that he was being solicited by a prostitute
and was arrested. He was later released when it was determined
that he did not have the capacity to understand the situation.
The State thus easily found witnesses that fit the highly educated
and well-employed criteria.
Additionally, there was no real effort to evaluate Lucy's usual
home environment and so provided biased evidence from the social
worker. This was another false impression given to the court
and the viewer. There were no ongoing visits to determine what
Lucy's life was like. In reality, the competence of a parent
is not based on a single visit.
Sam himself could not give good evidence to support his claim
of why Lucy should stay with him. There was no adjustment by
the court to understand him or to facilitate the process. Sam
could not answer complex questions, and no real effort was made
to cross-examine him so that he could have explained his view
effectively. The judge allowed badgering, complex questioning,
which would not be permitted in reality. In effect, the odds
were stacked against Sam from the beginning. This is similar
to Kramer vs. Kramer, as there, the odds were stacked
against the Father when "the producers employ a resurrected
and misrepresented maternal preference standard" (Papke,
supra at 1205). The standard of competence for Sam was a misrepresented
notion of regular mental cognitive ability.
Throughout the movie, Sam was measured as a success or failure
in his parenting, work, and social skills. These competencies
seemed to be on trial in the court scenes. The burden was on
Sam to prove his fitness as a parent. Throughout these scenes,
it was obvious that he had a much more difficult time meeting
his burden of proof as compared to the burden on the State. The
State had no difficulty in showing that Sam had problems functioning
in society. However, from these struggles, it was not a far step
to infer that Sam was not a competent parent. The State through
the strength of their witnesses facilitated the discharge of
their burden, which in turn augmented the burden on Sam. The
viewer is asked to believe that the court would not even consider
the possibility that a disabled man could be a competent parent.
In one telling courtroom scene Sam is being asked by the Prosecutor
to explain why he is a good parent for Lucy. Sam is posed complex
questions again and again in an aggressive manner. He finally
begins to speak about what it means to be a parent by quoting
from the movie Kramer vs. Kramer. It contains an exceptional
speech about being a father that Sam recites. However, Sam does
not know when to stop or alter his testimony to make it sound
like his own. He quotes everything including the name of the
child in Kramer vs. Kramer. The court and his lawyer are
It is a harsh criticism of the legal system that Sam was pushed
to provide answers conforming to court expectations. Sam did
all that was in his power to answer, finally resorting to saying
what the lawyer wanted to hear. It is a criticism of inflexibility
in asking questions demanding of conforming answers. The court
would likely not have been concerned if Sam had quoted from a
famous person, for example, Martin Luther King Jr., and said,
"I have a dream". Thus, the scene was also a commentary
on the inappropriateness of people using pop culture to support
their positions. It was a critique of pop culture within pop
Also, in the Kramer film, "the lawyers are sarcastic, unrelenting,
and intimidating" (Papke, supra at 1206). The judge "presides
over the hearing and fails miserably to restrain misrepresentations
of the Kramers' lives" (Papke, supra at 1206). The same
can be said of the lawyers and judge in I Am Sam. The
lawyers place everyone under a microscope, emotionally destroying
the witnesses on the stand. These scenes denounce the tendency
of the legal system to "revictimize" witnesses. Although
there are numerous safeguards to minimize witness' trauma, it
is a common theme in pop culture, not simply these two movies,
that these kinder practices are ignored. For example, in movies
such as Cape Fear (Universal/Amblin/Cappa/Tribeca, 1991,
directed by Martin Scorsese), rape-shield laws are ignored.
This movie portrays lawyers as machines that shred people, and
not as those who question testimony. Picking apart people on
the stand, effectively crushing them and making them unable to
speak, is not reality. There is no semblance of an actual cross-examination
where lawyers do ask probing questions, but do not set out to
inflict trauma, which will require years of therapy to recover
from. It would be of no benefit to a client to engage such a
lawyer. The most detrimental effect of these vicious examination
scenes is that they appear to promote viewers' belief in them.
The Papke (Papke, supra at 1206) article argues that the Kramer
film and I Am Sam are both highly unrealistic in a number
of ways. In an actual court setting, there would be allowances
for Sam's evidence to be admitted to court and given proper weight.
S. 15 of the Charter states that "[e]very individual is
equal before and under the law and has the right to equal protection
and equal benefit of the law without discrimination and, in particular,
without discrimination based on
mental or physical disability"
(Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 15). Exactly how that would be accomplished is unknown. However,
the court would have to take a creative approach in evaluating
and gathering evidence and in eliminating bias. Mental disability
is a ground of discrimination that the court is directed to take
notice of and reduce. It is impossible to eliminate all discrimination
in law, as law always discriminates against someone, but it is
possible to minimize it.
Lucy's persistence in seeing her father was a major contribution
to Sam's continued contact with his daughter. Papke writes that
in Kramer vs. Kramer, when the two parents "decide
what to do about their son
, and make peace between themselves,
they do so despite the law, and in part to spite the law"(Papke,
supra at 1207). I am Sam does the same, suggesting that
there would have been a different outcome had Sam not lived so
close, or her foster parents not been so cooperative and compassionate.
The film implied that only due to these extraordinary efforts
could Sam and the foster family work as a unit to raise the child.
The outcome requires the viewer to consider that the court system
could never have come up with such a mutually acceptable solution.
In Alberta, "[t]he goal of foster care is to return the
child to his or her own family as soon as possible" ("About
Foster Care" online: Alberta
Children's Services (date accessed: 9 March 2003)). As well,
it "describes the unique situation of providing temporary
family-based care to a child who cannot remain in their own home
due to child protection concerns or exceptional special needs"
(Ibid). The courts and legal system seek, where possible, to
maintain family ties.
I Am Sam is a heartwarming film, where love triumphs over
tyranny. However, the film does a disservice to the viewing public
in propagating myths about the legal system. The viewer is asked
to adopt the point of view of a disabled man, combating a legal
system where competence is equated with normal mental development.
However, as Papke comments that Kramer vs. Kramer "proposes
a modern variety of gender peace" (Papke, supra at 1208),
so I Am Sam proposes a modern variety of peace between
disabled persons, the legal system, and society.
Posted July 22, 2003