Abraham Mireles
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Most of us will never step foot in a courtroom, because you'll have to catch us first. But we sure hope that never happens, because legal dramas sure make the experience look intense. Big speeches! Sudden plot twists! Heartless criminals who almost escape justice! Sure, we all know that they're exaggerating for the sake of good entertainment, but they're probably at least getting the basics right. Aren't they? Uh, well ...
The whole point of a criminal trial is to prove to a jury that the accused did it beyond a reasonable doubt, because we don't want to lock someone up unless we're pretty dang sure they deserve it (in theory). That's why the process of presenting evidence, questioning witnesses, and otherwise building a case moves slower than molasses in winter. But why waste months going through the boring motions of "due process" when you have the guilty bastard right in front of you? A heroic lawyer can simply confront the villain when they're on the stand, producing a breakdown and confession. It's what made A Few Good Men famous.
This was also Perry Mason's go-to tactic in the '50s. And for those of you who aren't watching a lot of reruns with your grandma these days, it's also popped up in How To Get Away With Murder. Top criminal lawyer Annalise Keating aggressively accuses a witness of murder. She later ends up on the receiving end of this tactic when a prosecutor calls her "resentful of her husband," and then, after she's baited into losing her cool on the stand, "capable of murder."
In Reality ...
This tactic is neither practical nor legal. For starters, the accused have the right to not answer those kinds of questions, because the Fifth Amendment protects you from self-incrimination. And while pop culture often presents that option as a shield for the obviously guilty to cower behind, it's meant to protect people from this exact kind of aggressive coercion. Plus, these kinds of tactics are considered argumentative because they suggest conclusions without establishing the appropriate factual foundation, and are therefore grounds for an objection so forceful that Phoenix Wright would be stunned. Lawyers are supposed to get the facts from witnesses, not badger them with inferences and test their reactions to hypothetical scenarios.
So the man Keating accuses of murder is justified in being irate, because his basic rights are being trampled by a lawyer who's ignoring a judge telling her to knock it off. And when the situation is reversed and Keating correctly calls out her opponent as argumentative, she's also correct to be annoyed that the judge sits there like she accidentally wandered in from the streets and is in too deep to admit it now.
A common way to create tension in legal dramas is to make it look like the criminal is going to go free because there's a lack of definitive evidence. We all know he did it -- we probably even saw it in the cold open -- but knowing it and proving it are two different things. When all hope seems lost, a new piece of evidence is produced that clinches the case. Cue everyone in the courtroom gasping.
How To Get Away With Murder offers us another example. Keating is questioning a man who, like most white supremacists, is only brave enough to express his views on anonymous message boards. But she reveals that she had a hacker track his IP address through computer magic, and then shows his racist internet comments to the court. Everyone, including the guy's lawyer, is shocked by this sudden revelation.
In Reality ...
Trials tend to be very boring and feature few plot twists. That is by design, and that design holds especially true with evidence, as lawyers are already aware of all of it before the trial even begins. Trials have a stage called discovery, wherein all evidence is gathered and each side is made aware of what the other has. The prosecution is legally required to disclose and share any evidence that could help the defense. Discovery also sees the judge decide whether each piece of evidence is admissible, and any evidence that was collected by violating someone's rights will be thrown out. Whipping out unannounced evidence in the middle of a trial is about as tolerated as whipping out your unannounced genitals. Or even announced genitals. Most genitals are frowned upon in a trial setting, frankly.
So let's take a look at Big Little Lies, wherein a lawyer asks a witness if she pushed her husband down some stairs. She denies it, but then the lawyer produces a surprise computer simulation of the event where "the physics say" he must have been pushed. Her lawyer objects, calling it an unfair surprise, but the judge just shrugs and basically says, "Yeah, surprisingly awesome." They don't even clarify who made the supposedly flawless simulation.
In reality, this supposed evidence would get thrown out of the courtroom about as fast as the case itself.
Imagine this: The prosecution has a videotape which shows the defendant killing his wife, but the police got the tape without a warrant and the judge decided it was inadmissible as evidence. So when the defendant protests his innocence, the clever prosecutor will proclaim, "The security camera video of you killing your wife says otherwise!" The lawyer will immediately be forced to "withdraw" this, and the judge will ask the jury to "disregard that statement," but the jury is now aware of a tape they weren't supposed to know about. A villainous prosecutor can flip this around and plant seeds of doubt about an innocent man by saying something that makes him sound bad, then immediately withdrawing their words, as if that somehow zaps them from existence.
In Reality ...
This is known as "unringing the bell," because a jury can't simply inflict amnesia on themselves because a judge tells them to. This, of course, can taint the result of a trial. In TV Land, either the judge's words magically solve the problem, or a lawyer gets away with being sneaky. But in reality, this would likely produce a mistrial, and might even raise the need for a new jury.
This one is a Law & Order favorite, but it also pops up in the supposedly ultra-realistic The Wire, when Omar gives false testimony to get Bird convicted. First Omar says that he met Bird in jail, implying a criminal history. The opposing lawyer objects, and the judge asks the jury to "disregard that statement." Later, Omar outright accuses Bird of murder, and the judge again asks the jury to pretend that baseless claim never happened. But it's all part of Omar's plan to make Bird look guilty. Bird is indeed found guilty, and the prosecutors later thank Omar for lying for them. And yeah, we get that the show explores problems within the system, but there's corruption and ineptitude, and then there's basic mistakes that would force lawyers and judges to look for new careers.
Objections are like the legal world's version of the F-bomb. Often an objection will lead to lawyers shouting at each other in a barely coherent debate, and sometimes the judge doesn't even rule on the issue. In shows like The Good Wife and Suits, an objection is just an excuse to let lawyers vent their frustrations for a bit before the judge gets bored and gestures at everyone to move on, often without resolving the ostensible problem.
In Reality ...
An objection is a formal procedure to protest a potential illegality that a judge has to rule on, and everyone is expected to only speak when it's their turn. Firstly, the lawyer raising the objection is supposed to address the judge, never the opposing attorney, and they only get to calmly explain what they're concerned about (preferably while also mentioning the legal basis for their objection instead of simply shouting the word and hoping that everyone intuits what's on their mind). Then, if the other lawyer opposes the objection, they get a turn to speak without interruption. The judge makes a ruling that's put on record, and if you don't accept it and move on, you'll be in big trouble. So it's not so much a sudden injection of drama as it is a throwback to high school debate club.
Just how long does a trial take? Not long, judging by the average legal drama. There's a little prep work, the lawyers say their piece, and then the jury delivers a verdict after a suitable dramatic pause. It looks like it shouldn't take more than a couple of days -- maybe a week if it's especially tough or complicated. After all, we need our heroes to focus on another bad guy in the next episode. Take The Good Wife, in which big legal issues are continually solved in the span of a few days. You have the right to a speedy trial, right?
In Reality ...
"Speedy" is relative. Trials and other legal proceedings can be painfully slow, and you can consider yourself lucky if your case takes months instead of years. Most TV simplifies the complexity of trials by not showing or even mentioning a lot of time-consuming steps, like preliminary hearings, depositions, and plea bargains. And we get it, it's good storytelling to cut the boring parts. But it has contributed to the false impression that trials are way faster than they are.
Preparation for a trial also takes time, and anyone preparing on a TV lawyer's condensed schedule is setting themselves up to lose. Discovery alone can take a whole month. There's also the fact that courts are often backlogged, making the process even slower. In non-criminal cases, like a lawsuit, you might have to wait as long as 18 months to get started. Oh, and then there's the lengthy appeals process. While TV lawyers move on after the jury's big conclusion, appeals can add years to a case before it's settled for good.
Again, we get that all of this would be very boring to watch, but at least try to hint at the passage of time. Otherwise you end up with ludicrous scenarios like this episode of Suits, wherein the months-to-years-long process of registering a patent is reduced to having a meeting, filling out a form, and getting a response the next day.
TV has no shortage of violent robberies, vicious murders, and brutal rapes. It's a madhouse out there. We should teach our dogs to use guns. We should teach our guns to use guns. Just look at this official Law & Order compilation of crime scenes:
In Reality ...
While we'll invent faster-than-light travel before Law & Order: SVU runs out of inane storylines, the overwhelming majority of crimes aren't violent. TV can make it seem like robbery, rape, and murder are the only crimes out there, but fewer than 5% of arrests are for violent crimes, and it's been like that for decades. 80% of arrests stem from minor violations, like outstanding fines or disorderly conduct. The FBI estimates that for a population of 100,000 people, only 382.9 offenses involve violent crimes, compared to 2,362.2 related to property damage (and both rates are declining). In other words, your creepy neighbor is six times more likely to piss on your car than your corpse.
And yes, we know that TV focuses on violent crime because no one wants to watch hot actors dramatically resolve parking violations. But even when you remind yourself that it's all for entertainment, the focus on violent crimes has caused people to vastly overestimate how common violence is. Crime show fans think there are 2 1/2 times as many murders happening than there really are, and there are also concerns that voters are pushing for overspending on prisons to protect people from violent crime that doesn't actually exist. So let's try to relax a little and enjoy more stories about the legalities of taking down Ponzi schemes and dismantling delusional tech company scams.
TV courtrooms are battlefields, featuring epic duels between defense attorneys (usually portrayed as having all the advantages) and district attorneys (our scrappy underdogs who narrowly save the day thanks to clever prosecution, good police work, and a speech from Jack McCoy). Just look at this Law & Order episode in which a soulless defense attorney gives a big speech about a poor killer suffering from ADHD, only for McCoy to counter with a stirring speech about responsibility.
In Reality ...
No one wants to watch a TV show where the hero cruises to victory thanks to the immense bureaucratic resources at their disposal. But if you could gamble on criminal cases, the odds wouldn't favor defendants. And if you ever get in trouble with the law, you'd better hope that you have enough money for a good lawyer. Yes, you have the right to an attorney, but the catch is that you don't have the right to an attorney who isn't horribly overworked and incapable of giving you a proper defense.
Public defenders often have around 200 active cases, which should be the work of five lawyers. You'll be lucky if they even remember your name, let alone spend the minimum of 41-201 hours of legal attention that you require. Oh, and they also lack the resources of state prosecutors, like free access to police detectives and a forensics lab at their disposal. And they're underfunded. All of this has left public defense attorneys protesting that it's impossible for them to do their jobs properly. When Eric Holder was attorney general, he agreed with them, calling the situation "a state of crisis."
Yes, sometimes sleazy rich folks hire big-shot lawyers to make them look like saints, but while television and the news make that tactic seem common, it is very much the exception. Somewhere between 60% and 90% of defendants can't afford their own lawyer (it's tough to measure), and American jails are stuffed to bursting with the poor. So while evil TV defense attorneys tend to swoop in at the last moment to jam up the wheels of justice with tough talk, the real ones are mostly stumbling in late, muttering, "Sorry, which case is this again?"
So we guess the lesson here is to not be poor. You're welcome.
Abraham is a Mexican lawyer, and when he isn't doing lawyery stuff, he likes to write comedy. You can say "Hola" to him on Twitter here.
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