# How accurate is 'Law and Order'? **URL:** \ **Category:** Factual Questions\ **Created:** [August 1, 2005, 3:36am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078 "2005-08-01T03:36:10Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [August 1, 2005, 11:23pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/41 "2005-08-01T23:23:03Z")
> [@Blalron](#): > > Did you ever see the episode where McCoy was prosecuting some high school football players for having sex with a mentally retarded girl who was legally unable to consent, and the judge threw out the case after the girl admitted she enjoyed the encounter? Wouldn’t an actual judge get reprimanded for throwing out a conviction for a legally irrelevent reason, or was there some crucial technicality that I’m missing here? IIRC, the problem was that in that case, the boys claimed they didn’t know she was retarded, and that the girl kept insisting that it was consentual, that she wasn’t raped, etc. One thing I noticed is how short closing arguments are. It seems like they barely speak for five minutes. Now, my source is Court TV, but in live proceedings I’ve watched, the closing statements generally seem to last several hours, sometimes even carrying over to the next day. Of course, that wouldn’t work on a tv show. (I kinda think the short, concise, to the point ones might be better than an entire rehash) Question-how often do objections occur? It seems like on L&O half of the questions are met with “OBJECTION!” Shouldn’t lawyers KNOW better than to ask something that’ll be objected to? ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [August 2, 2005, 12:11am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/42 "2005-08-02T00:11:12Z")
Regarding the delivery of the verdict, I have a related question. I saw a true-crime documentary about a doctor that killed his family and was convicted. This was in Florida. When the jury came back with the verdict, they _vocally_ announced the verdict, in unison: GUILTY!! Is that actually done in any jurisdictions? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [August 2, 2005, 12:12am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/43 "2005-08-02T00:12:26Z")
What’s with the rules of evidence on _L&O_? With the popularity of this show, I think “fruit of the poison tree” must be in the popular consciousness enough that I could run for any office in this country on the plank of ending the exclusion of evidence from jury’s consideration. In fact, I will probably do that. ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [August 2, 2005, 12:34am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/44 "2005-08-02T00:34:48Z")
IANAL, but I wonder how many judges would allow lawyers to turn a criminal trial into a soapbox for their pet political projects. And I wonder how many juries would really sit still for it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 1:08am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/45 "2005-08-02T01:08:46Z")
> [@Guinastasia](#): > > Question-how often do objections occur? It seems like on L&O half of the questions are met with “OBJECTION!” Shouldn’t lawyers KNOW better than to ask something that’ll be objected to? Well, it depends a lot on the judge, who the lawyers are, and what the rules of procedure are (in other words pretty much everything). In most cases there will not be as many objections as we see on tv (remember they are showing us only the exciting or interesting parts–You missed the three hour review of the psychologist’s potty training and early employment at McDonald’s). Objections are a tricky thing, and you have to look at them a few different ways: 1. If you don’t make them, then they aren’t preserved for appeal. Damaging evidence might be introduced. But 2. If you make an objection, you are emphasizing the very evidence you are trying to exclude. 3. Also, if you object too much, it can turn the jury against you. You are taking up time, interrupting the story, just when it is getting good, and trying to prevent them from hearing stuff (the secret stuff is always the juiciest, right?). But you also asked about asking objectionable questions. Here’s the deal: At the extremes, there are ethical proscriptions [Rule 3.4(e)](http://www.abanet.org/cpr/mrpc/rule_3_4.html), but beyond that, it’s all fair game. There’s an old saw from law school, “The evidence isn’t inadmissible until the judge sustains the objection.” So if I ask a question and the other guy is too slow, doesn’t catch it, or decides not to object, the evidence comes in. And if I ask a question, and the other guy objects, the jury still heard the question (if not the answer) and I get the benefit of items 2 and 3 above. It’s a no lose game. Of course, if I abuse this rule, it could work to my disadvantage. A lot of this stuff, even on L&O, is resolved by pretrial motions. There is the motion to supress (for illegally seized evidence and coerced confessions), the motion to quash (for inappropriate witnesses), and the motion _in limine_ (for a pretrial ruling on an anticipated evidentiary issue). Of course, all of these rulings are subject to modification at any time before the jury begins deliberating. But if I win a motion\* in limine\* on an important issue, say admissibility of evidence of prior convictions, and my opponent asks about them anyway, my opponent risks a mistrial or a scolding from the judge. And regarding withdrawing the question, a friend of mine (an experienced trial lawyer) once pointed out that the people who do that are the ones who learned about trials by watching movies. I’m not talking about a simple mistake, I’m talking about an LA Law sized, “What did you tell your lawyer after you flunked your fifteenth polygraph test?” type question, where the whole point of the question is either to argue with the witness, or to expose the jury to extremely prejudicial information. My friend pointed out that by withdrawing the question, you are admitting: a. You knew the question was a bad one; b. You didn’t need the information to make your case; and therefore, c. You are playing games and wasting everybody’s time. If the other guy objects, you don’t really have to defend the question, typically, and there is enough play in the joints of the rules of evidence to defend just about every question. Objections have to be rule based, questions just have to seek relevant information (I’m simplifying here). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 2, 2005, 1:42am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/46 "2005-08-02T01:42:14Z")
The thing that irritates me the most about L&O is that almost every time McCoy gets some of his evidence tossed, he tells the cops to go out and get some more, which they do. Alternatively, they find some other way to get the evidence back in, like “inevitable discovery.” In my experience, if a key piece of evidence gets tossed, there are only three alternatives - go ahead with what you’ve got (either by trial or by seeing if the accused will plead to a lesser offence); or, stay the charge. After all, as a prosecutor you expect the police to have investigated thoroughly, and brought you all the evidence in the first place. Assuming they’ve done their job in a professional manner, the chance that they could go out and get entirely new evidence that supports the charge, just before or during the trial, is pretty small. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 1:45am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/47 "2005-08-02T01:45:33Z")
> [@Bricker](#): > > One episode that sticks in my craw to this day was a murderer who had been convicted by the prosecution without a body. Years later, the body is found and its condition shows that the theory relied upon by the original prosecution could not have happened. He is released, and then sues the prosecutor (McCoy? Stone? don’t recall) for malicious prosecution. The ex-con gleefully informs his target that he can’t even mount a defense, because of _collateral estoppel_. > > Collateral estoppel is a real concept. It is completely meaningless in that situation. YES!!! I thought the same thing. There were multiple problems with the claim, IIRC: 1. Malicious prosection requires that suit be brought or maintained without probable cause (the fact that the defendant was ultimately acquitted does not prove that the prosecutor lacked probable cause); 2. Most states require, as the name implies, that the prosecution be brought out of malice. 3. Many states hold that prosecutors are immune from suit. [PROSECUTORIAL LIABILITY - NOTEWORTHY CASES SUMMARIZED - AS LEADS FOR YOUR OWN LEGAL RESEARCH](http://www.lawmall.com/abuse/ab_other.html) (reviewing New York cases); [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=962150](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=962150) 4. For several reasons, collateral estoppel just doesn’t make sense. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 2, 2005, 1:53am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/48 "2005-08-02T01:53:04Z")
Follow-up question: how often do lawyers in the US actually proceed in chambers? McCoy seems to be arguing something in chambers every week. In my practice, I’ve been in judge’s chambers precisely once, and that was an exceptional case. The normal rule in Canadian courts that I’ve been in has been that everythings’s done in open court. ---
**Author:** ![Green\_Bean](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/green_bean/32/1760_2.png) [@Green\_Bean](https://boards.straightdope.com/u/Green_Bean)\ **Post date:** [August 2, 2005, 2:04am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/49 "2005-08-02T02:04:53Z")
Regarding the same cops being paired with the same ADAs over and over– **Debaser** ’s explanation makes good sense for regular L&O, but what about SVU? Does the real sex crimes unit have designated ADAs? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 2:10am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/50 "2005-08-02T02:10:48Z")
> [@Northern Piper](#): > > Follow-up question: how often do lawyers in the US actually proceed in chambers? McCoy seems to be arguing something in chambers every week. > > In my practice, I’ve been in judge’s chambers precisely once, and that was an exceptional case. The normal rule in Canadian courts that I’ve been in has been that everythings’s done in open court. It happens, but not as frequently, and not as obviously, as in L&O. It usually doesn’t make a lot of sense to take it, “in chambers” because if it’s an objection or an argument, it’s got to be on the record. If you want to make a record, you’ve got to move the court reporter and all of the court reporter’s stuff. Therefore, these things are often postponed until the jury takes a break and the argument happens in the courtroom. BTW, here is a perfect example of a lawyer exceeding the bounds of good trial behavior and getting punished for it. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=hi&vol=21708&invol=1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=hi&vol=21708&invol=1) ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [August 2, 2005, 4:14am UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/51 "2005-08-02T04:14:21Z")
> [@Larry Borgia](#): > > IANAL, but I wonder how many judges would allow lawyers to turn a criminal trial into a soapbox for their pet political projects. And I wonder how many juries would really sit still for it. Are you talking about the guy whose defense was that he was stealing money from the company to donate it to Israel, and that he only killed his business partner because the guy was going to turn him in? And then the total stereotype Jewish lawyer made the whole case about the Israeli-Palestinian issue? Also, a lot of the murder charges seem far-fetched. Charging someone with first degree murder because they harassed the victim and the victim committed suicide? Or the one where the producer of a reality show was tried for murder because he goaded the participants into provoking one another, hoping that something would happen (once admitting that it would be great for ratings if a death happened on air?) How far-fetched are those, or are there lawyers who will try and pull this shit? **Bricker** , mind telling us common folk what _collateral estoppel_ is? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2005, 1:50pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/52 "2005-08-02T13:50:30Z")
> [@Guinastasia](#): > > Are you talking about the guy whose defense was that he was stealing money from the company to donate it to Israel, and that he only killed his business partner because the guy was going to turn him in? And then the total stereotype Jewish lawyer made the whole case about the Israeli-Palestinian issue? > > Also, a lot of the murder charges seem far-fetched. Charging someone with first degree murder because they harassed the victim and the victim committed suicide? > > Or the one where the producer of a reality show was tried for murder because he goaded the participants into provoking one another, hoping that something would happen (once admitting that it would be great for ratings if a death happened on air?) > > How far-fetched are those, or are there lawyers who will try and pull this shit? Let’s put it this way: for every one of those cases, there about ten zillion drunk guys beating the hell out of other drunk guys because they are messing with the wife/girlfriend of the first guy, 50 zillion shoplifters, 20 zillion possession of drug paraphenalias, 200 zillion driving on suspended/expired licenses… none of which make for very interesting TV. > [@](#): > > **Bricker** , mind telling us common folk what _collateral estoppel_ is? You asked a mouthful. Here’s an overview of what can be a very tricky concept: _Collateral estoppel_ is a principal that says if you and I are in litigation, once you have fully and finally proved a particular issue, you don’t have to re-litigate that issue again. “Issue preclusion” is good shorthand for the concept. It’s different from _res judicata_, which is “claim preclusion,” and it says that once a particular legal claim has been fully and finally litigated, it cannot be re-litigated. Let’s say you decide to remove the large dead tree in your backyard. During the process, the tree falls into my yard, crushing me and destroying my original Monet painting, which I happened to be carrying at the time. My wife, understandably distraught, sues you for wrongful death. She says that it was your negligence in tree removal that caused the tree to fall, and that caused my death. At trial, sadly (for my side, anyway) it’s determined that you were NOT in any way negligent in cutting down the tree, and my side loses the case. We appeal, but with no success. Still upset, my wife then decides to sue you for the loss of the Monet painting, the theory being that it was your negligence in tree removal that caused the tree to fall, and that caused the destruction of the Monet. You don’t have to go into court again and re-prove that you were not negligent in cutting down the tree. That _issue_ has been fully and finally litigated between us. Our side is precluded, or “estopped” from raising it again. _Res judicata_ would prevent my wife suing you again for my wrongful death. That _claim_ has been fully and finally litigated between us. _Collateral estoppel_ prevents her from rasing a particular issue, in the context of another claim, that’s already been proved. Note that if the tree also damaged another neighbor’s property, he is free to sue you. _Collateral estoppel_ requires mutual identity of the parties; just because the issue is settled between you and me doesn’t mean the neighbor is out of luck; HE can try to prove your negligence. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 2:51pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/53 "2005-08-02T14:51:26Z")
> [@Bricker](#): > > Let’s put it this way: for every one of those cases, there about ten zillion drunk guys beating the hell out of other drunk guys because they are messing with the wife/girlfriend of the first guy, 50 zillion shoplifters, 20 zillion possession of drug paraphenalias, 200 zillion driving on suspended/expired licenses… none of which make for very interesting TV. > > You asked a mouthful. Here’s an overview of what can be a very tricky concept: > > _Collateral estoppel_ is a principal that says if you and I are in litigation, once you have fully and finally proved a particular issue, you don’t have to re-litigate that issue again. “Issue preclusion” is good shorthand for the concept. > > It’s different from _res judicata_, which is “claim preclusion,” and it says that once a particular legal claim has been fully and finally litigated, it cannot be re-litigated. > > Let’s say you decide to remove the large dead tree in your backyard. During the process, the tree falls into my yard, crushing me and destroying my original Monet painting, which I happened to be carrying at the time. > > My wife, understandably distraught, sues you for wrongful death. She says that it was your negligence in tree removal that caused the tree to fall, and that caused my death. > > At trial, sadly (for my side, anyway) it’s determined that you were NOT in any way negligent in cutting down the tree, and my side loses the case. We appeal, but with no success. > > Still upset, my wife then decides to sue you for the loss of the Monet painting, the theory being that it was your negligence in tree removal that caused the tree to fall, and that caused the destruction of the Monet. > > You don’t have to go into court again and re-prove that you were not negligent in cutting down the tree. That _issue_ has been fully and finally litigated between us. Our side is precluded, or “estopped” from raising it again. > > _Res judicata_ would prevent my wife suing you again for my wrongful death. That _claim_ has been fully and finally litigated between us. _Collateral estoppel_ prevents her from rasing a particular issue, in the context of another claim, that’s already been proved. > > Note that if the tree also damaged another neighbor’s property, he is free to sue you. _Collateral estoppel_ requires mutual identity of the parties; just because the issue is settled between you and me doesn’t mean the neighbor is out of luck; HE can try to prove your negligence. Actually, its a little more complicated. Res Judicata would probably bar the claim for the painting. It arose from the “same transaction or occurrence” as the wrongful death claim, and is the sort of claim that one would “expect a plaintiff to litigate together.” These are the magic words that courts use to determine the extent of the preclusive effect of a judgment. _Cf._ [http://www.lawskills.com/case/ga/id/23521/](http://www.lawskills.com/case/ga/id/23521/) (not the best case, but I couldn’t find better with Google). Also, there are different flavors of collateral estoppel. 1. Offensive vs. defensive. You can use collateral estoppel as a sword or as a shield. In defensive collateral estoppel (the least controversial kind), we have a lawsuit, you lose on an issue. Then I try to sue you for something else, and make the identical claim that I lost in the first case. Collateral estoppel protects me from having to re-litigate that issue. A good example in the criminal context is _Ashe v. Swenson_, [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436). In that case, Ashe was charged with robbing a man named Knight at a poker game. His defense: “You can’t prove I was there.” He won. Then the state charged him with robbing a different guy at the same poker game–on the same night. The Court held that the state was precluded by collateral estoppel from arguing again that he was at the poker game. Offensive collateral estoppel applies when two parties have litigated an issue. The winner then brings a lawsuit involving the same issue, and relies on the first judgment to establish the issue in that party’s favor. Suppose I get sued and file a claim with my insurer. The insurer denies coverage, and I sue the insurer. The insurer claims that clause A excludes this type of claim from coverage. I win. Then I get sued again by a different plaintiff–the complaint alleges an identical claim against me. I tender this claim to my insurer, and surprise, the insurer denies coverage on the same basis again. When I sue the insurer this time, the case will be much shorter because I can probably rely on offensive collateral estoppel. 1. Mutual vs. non-mutual. Traditional collateral estoppel doctrine requires mutuality of interest between the party who lost the issue the first time and the party whose issues are being precluded. Collateral estoppel only applied to parties and those in privity with them. So in the examples above, the parties were the same. Courts have expanded collateral estoppel to those who were not parties or in privity with them. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436) States vary in their application of non-mutual collateral estoppel [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nm&vol=02ca-062&invol=2](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nm&vol=02ca-062&invol=2) (New Mexico does not apply non-mutual defensive collateral estoppel against the state in criminal cases). The most controversial kind of collateral estoppel is offensive non-mutual collateral estoppel, because it represents the biggest break with traditional doctrine. It comes in handy sometimes. In products liability cases, for instance, a plaintiff’s lawyer might spend hundreds of thousands of dollars establishing that a product is defective. The next plaintiff to sue the manufacturere gets the benefit of the first plaintiff’s efforts (which kinda sucks for the first guy) and the court gets the benefit of not having to revist a settled issue. [http://eprints.law.pace.edu/89/01/madden11plr87.pdf](http://eprints.law.pace.edu/89/01/madden11plr87.pdf) (pdf) (discussing use of non-mutual offensive collateral estoppel in products liability cases). ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [August 2, 2005, 4:06pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/54 "2005-08-02T16:06:28Z")
IIRC, Law & Order is one of the shows that misstates spousal privilege. Correct, albeit broad-brush, statement: One cannot be compelled to testify against one’s spouse. Incorrect, albeit more dramatically interesting, statement: One cannot testify against one’s spouse. Very different things. ---
**Author:** ![Bytegeist](https://avatars.discourse-cdn.com/v4/letter/b/9dc877/32.png) [@Bytegeist](https://boards.straightdope.com/u/Bytegeist)\ **Post date:** [August 2, 2005, 4:47pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/55 "2005-08-02T16:47:40Z")
> [@Gadarene](#): > > One cannot be compelled to testify against one’s spouse. Incidentally, is there anyone else you can’t be compelled to testify against? Your children, parents, or siblings for example? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2005, 4:58pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/56 "2005-08-02T16:58:09Z")
> [@Bytegeist](#): > > Incidentally, is there anyone else you can’t be compelled to testify against? Your children, parents, or siblings for example? These are not universal, but… Your parishoner, if you’re a member of the clergy and the statement was given to you privately in that context. Your client, if you’re a lawyer and the statement was made privately in the context of your representation. Your patient, if you’re a medical professional and acquired the information attending a patient in a professional capacity, and it was necessary to enable you to act in that capacity. No parent-child privilege except perhaps in one or two states… ---
**Author:** ![John\_Corrado](https://avatars.discourse-cdn.com/v4/letter/j/a88e4f/32.png) [@John\_Corrado](https://boards.straightdope.com/u/John_Corrado)\ **Post date:** [August 2, 2005, 5:16pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/57 "2005-08-02T17:16:51Z")
> [@Gadarene](#): > > IIRC, Law & Order is one of the shows that misstates spousal privilege. > > Correct, albeit broad-brush, statement: One cannot be compelled to testify against one’s spouse. > Incorrect, albeit more dramatically interesting, statement: One cannot testify against one’s spouse. > > Very different things. Has L&O misrepresented in that way? I’ve seen plenty of “We know the wife knows, but we can’t force her to say anything (correct usage)” and several episodes hinge on convincing a spouse to waive their right to not have to testify against their spouse. (“Perhaps, Mrs. Johnson, you should know about what your husband was planning on doing with the money he earned from killing his partner.” Frantic defendant:“No! Susan! Don’t listen to him! He’s trying to…” Tearful wife: “Mr. McCoy, I’m ready to tell the truth.”) ---
**Author:** ![iwakura43](https://avatars.discourse-cdn.com/v4/letter/i/9de0a6/32.png) [@iwakura43](https://boards.straightdope.com/u/iwakura43)\ **Post date:** [August 2, 2005, 5:53pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/58 "2005-08-02T17:53:49Z")
> [@Gfactor](#): > > 1. Offensive vs. defensive. You can use collateral estoppel as a sword or as a shield. In defensive collateral estoppel (the least controversial kind), we have a lawsuit, you lose on an issue. Then I try to sue you for something else, and make the identical claim that I lost in the first case. Collateral estoppel protects me from having to re-litigate that issue. A good example in the criminal context is _Ashe v. Swenson_, [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=397&invol=436). In that case, Ashe was charged with robbing a man named Knight at a poker game. His defense: “You can’t prove I was there.” He won. Then the state charged him with robbing a different guy at the same poker game–on the same night. The Court held that the state was precluded by collateral estoppel from arguing again that he was at the poker game. What if the state was able to provide new, compelling evidence that, in fact, Knight _had_ been there that night. (Say, a photograph with some highly date- and time-specific information in it in the background). Would the state be able to prosecute despite having failed to prove his presence at the game in the first case? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 6:10pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/59 "2005-08-02T18:10:47Z")
> [@iwakura43](#): > > What if the state was able to provide new, compelling evidence that, in fact, Knight _had_ been there that night. (Say, a photograph with some highly date- and time-specific information in it in the background). Would the state be able to prosecute despite having failed to prove his presence at the game in the first case? The Court sees collateral estoppel as part of the protection against double jeopardy: > [@](#): > > The ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. 10 For whatever else that [397 U.S. 436 , 446] constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717 , 2076, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time. Green v. United States, 355 U.S. 184, 190 , 225. Under other double jeopardy law, you certainly couldn’t argue that evidence of guilt justified a new prosecution–that’s the whole point of the double jeopardy clause. So no, it wouldn’t make a difference. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 2, 2005, 6:28pm UTC](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078/60 "2005-08-02T18:28:14Z")
\*Accord, \* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/146001a&invol=1:](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/146001a&invol=1:) > [@](#): > > The dissent concludes that “evaluation of the merits may be assisted by factual development of the record,” meaning another trial with new, more and better evidence offered by the State. But that is precisely what the principle of double jeopardy-collateral estoppel bars. The State is not entitled to a second opportunity to prove what it failed to prove in the first trial. [Previous page](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078.md?page=2) [Next page](https://boards.straightdope.com/t/how-accurate-is-law-and-order/315078.md?page=4)