I bit of a hijack here, for the lawyers here, when a lawyer enters in to alineo questioning or an argument that is sustained by objection, how often does the underlying cause fall into these categories:
A) The questioning lawyer was knowingly trying to get away with something
B) The questioning lawyer “mistakenly” entered into an objectionable line of questioning
C) The questioning lawyer questoining was bordrline and thought he/she would give it a try
Depends entirely on the lawyer and the judge in question. I don’t think there’s any rule of thumb, except that as a general principle the “trying to get away with something” has only limited utility, because you’re making a record for the other guy to complain, even if the judge allows it. Now, in my world, that may not be so bad… the Commonwealth can’t appeal an acquittal, after all. But I rarely (read: “never”) found a judge willing to bend over to favor the defense; there were plenty of judges that bent over backwards to help the prosecution. (I mean LITERALLY stepping in during voir dire to help rehabilitate a witness, or sua sponte offering grounds for an objection when the CA hadn’t… ah, I could write a bitter book).
What about the following, which you see all the time in L&O:
Lawyer: [some completely inappropriate comment to a witness]
Other lawyer: Objection!
Lawyer: Withdrawn!
Can you really say anything you like as long as you immediately withdraw it? In the show, it often seems like saying the inappropriate comment was the whole purpose of the line of questioning, and they hope that it will influence the jury even though it was “withdrawn.”
I don’t know, if a question is obviously flawed, I sometimes get away with a simple “objection” followed by a ruling. If the judge doesn’t understand the basis for the objection, he will pause and I’ll cite the rule. Anything more detailed or if I don’t like the ruling and am worried about making an appelate record, I’ll ask to approach. There have been times when I have objected in court and been sustained for reasons other than my problem with the question.
Again, it depends on the judge.
Sometimes, you’ll be hit with an objection, and you’ll knowthat you got nuthin’… the judge is going to hear the grounds, nod, and look at you for argument, and you’ll have nothing to say but mumbling. So you sharply fire back “Withdrawn,” and you’re not in the embarrassing position of having to admit that there’s not one shred of one dot of an evidentiary argument for what you just tried to do.
If you’re doing it in front of a jury, with highly inflammatory comments, consistently, then you’ll get slapped for it, either by a public admonition or some other, worse sanction.
This happens in the courtrooms I have appeared in, with one exception. Uniformly the judge announces the verdict after reviewing the verdict form to see if it is correctly filled out. I’ve been in a couple of jury trials where the jury made some impossible verdicts that we had to address in the judge’s chambers.
I’ve been a big fan of law and order for a long time.
I had a college professor who was an atty and a former prosecutor for the district atty’s office of Middlesex county. He taught a college class “Business Law” IIRC. He was a big fan of the show and said that all the legal elements were very accurate. (He was talking about the cases used as precident and the actual law used on the show, not elements like “whos speaking when” that others here have addressed.)
On the other hand, the crime scene scene’s (Har, har. Get it?) in the beginning of the show are very innacurate according to my EMT SO. She says that they almost always work the body unless it is beheaded or something. In law and order, no matter how small the wound is the body is left for the cops to examine and make wise cracks about. This is undoubtedly better television, but does seem laughably unrealistic now that it’s been pointed out to me.
Mostly. Not always.
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.
Grrr.
Collateral estoppel is a real concept. It is completely meaningless in that situation.
Well, that’s because Briscoe would yell at anyone who disturbed his crime scene. Seriously, two things I have never understood ar 1) why does the 27th precinct investigate crimes from Battery Park one night to Washington Heights the next. Don’t they have a “turf”? and 2) On what basis are cases assigned to Major Case Squad? and I’ll throw in a third - are Detectives really as rude to the uniform guys as Logan, Briscoe et al were (special dispensation to Greene who is always very polite)
mm
One thing I see on L&O a lot is that a lawyer will keep on with his diatribe when the opposing lawyer objects without it being ruled on by the judge.
I can’t imagine that would go over well in real life.
Also, what are the odds that the same detective partners would always get paired up with the same Assistant DAs.
By “impossible verdict” do you mean that the jury made some dumb mistake on the form — like checking both the Guilty and Not Guilty boxes for a charge? (I’ve never seen a verdict form, so I don’t know what the possible slip-ups are.) Or do you mean something like: the defendant is found guilty on charge A, and not guilty on charge B, even though that’s an impossible state to be in?
It still seems strange that the judge would wait to be potentially “surprised” in court. Seems like he could get a copy of the verdict sent to him before he enters the courtroom, and before everyone has to schlep their way back to hear a verdict that isn’t actually going to be heard.
And here’s another thing. If the judge has the right to interrupt a verdict before it becomes final, and quibble with it or in some other way invalidate it, what’s to stop him from doing that on any verdict he doesn’t personally favor? Are we depending on the honor system?
In a criminal case, a judge may throw out the jury’s conviction and acquit the defendant… but unlike a jury acquittal, that move can be appealed. A judge may not throw out the jury’s acquittal in favor of a conviction.
On the civil side, a judge can do anything… but any tampering he does is subject to appeal.
You just need to suspend belief and accept this. The way I look at it is as follows: To be completely realistic, the show would be boring. A typical cop and a typical DA have mostly boring routine cases and work to do. I want the show to be interesting. However, I don’t want it to be cartoonish with outragous and unrealistic stuff all the time.
So to have a perfect balance, as L&O does IMO, you need to have a show where every single episode can stand on it’s own as realistic and plausible. However, you don’t need to keep that standard when applied to the entire series.
Every episode of the show (with a few exceptions) can stand on it’s own as realistic. Sure, it’s unrealistic that all those interesting cases would happen to the same cops and DA’s over and over again, but that’s just making for good TV.
Thanks, that’s reassuring. I thought there had to be some safeguards like that.
I take it there’s also an incentive for a judge not to just acquit every defendant he sees, effectively punting all his cases up to the next level?
As a watcher of JAG, I would have to reduce that to 50%. 
Depends on the state and on how involved the judge is.
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?
Moreover, is it realistic that an assistant DA would have three fine-lookin’ babes in a row for staffers?
I suppose if he’s the one doing the hiring, maybe so.
Yes, pretty much - it’s rare but it happens. Most often it happens in when a verdict form includes a second level question and the jurors answer it in a form contradicting the result of the first layer question. - Examples:
The Verdict form asks if the Defendant is liable or at fault, and the jurors state no. Then the form asks how much the Defendant should pay in damages and the jurors say $16 Bazillion.
Or, as happened in one of my cases, the verdict asked if the Defendant was guilty of kidnapping the jury indicated “Not guilty”. Then the form asked that, if they found the jury the Defendant guilty, they must then determine if the Defendant released the victim unharmed. (If not, there is an enhanced penalty in Wyoming.) In this case, the Jury indicated that the Defendant had not released the Victim willingly.
Generally what happens is that the Judge will point out the problem and send the jury back for clarification.
Well, no judge likes being reversed on appeal. He certainly wouldn’t be enhancing his own career by putting into place a scheme like that, either.
I should point out that a judge that throws out a jury verdict of guilty may find that verdict re-instated on appeal. A judge that sits as fact-finder in a bench trial and acquits the defendant has no such worry; that cannot be appealed.
Don’t think I saw that one. Did the judge throw out the case prior to a verdict?
If the jury had already returned a guilty verdict, and he then threw out the case, then his decision is appealable. If he did this in the middle of trial, things get a little more complicated.
If the dismissal was at the behest of the accused, they could probably be tried again. However, if he dismissed the case over the objections of the accused, jeopardy may bar a re-trial. I’d want more detail before discussing if “manifest necessity” applied in this case and permitted a new trial.
Finally, on the merits: if the girl’s ability to consent was an issue of fact, and she made some detailed commentary about wanting the sex and enjoying it, he could well have found that, as a matter of law, she could consent. In other words, he could say, “Listening to this evidence, no reasonable jury could doubt her ability to consent.” Again, more detail would help.
But if there was no evidence in front of the jury about lack of consent – in other words, if the rape was charged solely based on her legal inability to consent – and the judge made such a finding, then he could well decide to enter a directed verdict, because the prosecution failed, as a matter of law, to meet their burden.