I just finished watching another good episode of “Law and Order”, and just had to ask this:
The show seems very realistic to me, but having not been inside a courtroom more than twice in 30+ years, I would have no idea. Are the courtroom procedings, the conference room deals, etc. really like that? Does the prosecutor really sit there and throw out things like “man 1, he walks in 3” and so forth?
In contrast, I remember one attorney on this board saying that they thought “The Practice” was the most realistic courtroom show they had ever seen. I’m terribly sorry, but “The Practice” really seems like a sad, Melrose-Place-for-lawyers soap-opera.
So really, how accurate is “Law and Order”? And is there a better show that depicts these things more realistically?
Perry Mason has to be the most realistic. I think I saw all the black and white shows this year (everyday at noon), and over half the witnesses confessed under oath. Isn’t that how they caught O.J.?
I remember an article in a local newspaper TV Guide lookalike that asked “which TV lawyer would best represent you in a real court of law?”. Matlock came in dead last for courtroom accuracy and dealing with actual points of law. Law and Order came first: I seem to remember reading that one of the developers and continuing influences of the show was a New York criminal lawyer. At any rate, the article said that law students attempting the New York bar watch the show religiously (under recommendation) to pick up points of procedure.
From my Grand Jury experience, I can see nothing which is unrealistic, except that they nearly always show cases “ripped from the headlines”. Also, it is getting common for the DA to charge with many charges & counts, rarely just 1, hoping that they will settle/plead/deal.
My law professor sister-in-law enjoys “Law and Order” a lot. She thinks it is mostly accurate. She knows where the problems are, but she tells her students that they can learn some points about the law from it.
However, my sister-in-law teaches civil procedure which is not usually interesting enough to be a plot point in the show. (Although L&O does have occasional jurisdictional disputes.)
The one completely unrealistic part of “L&O” is that the prosecutors do all of their research on Westlaw, even for items that are not on Westlaw or for which Lexis has better databases. Westlaw has a promotional deal with the show.
I’m still waiting for the realistic legal drama faithfully portraying endless hours of tedium pounding the keyboard, interspersed by thrilling phone calls. In reality trials, discovery, etc. really move along quickly similar to the portrayal on t.v., and even status calls bear the promise of excitement.
Re L&O - yeah, it is pretty standard for lawyers to provide pithy 5 minute summations in capital cases. Alsom DAs rarely lose and if they do, they come up with some obscure saving strategy from which to bargain, they prevail on appeal, or they were the victim of a faulty system. My personal favorites are when the L&O lawyers argue their case relying primarily if not exclusively upon citation to precedent. “No your honor, Smith v. Jones.” Yeah, that’ll convince em! And I love it when shows have lawyers pop up hollering “Objection!” without stating any basis for their objection.
There is not and never will be a realistic legal drama because the practice of law (and most lawyers) are boring as hell.
In my experience, it’s not that uncommon to simply say “Objection,” if you know the judge and the point to which you are objecting is immediately apparent.
If you’ve objected to a leading question, for example, been sustained, and opposing counsel immediately asks another leading question, I think most judges will rule on your objection without needing to hear, “Objection, leading,” again.
Similarly, a question that violates a pre-trial order can often be dealt with without having to either state the reason or have a sidebar… again, it depends on the judge.
However – every time you do that, you’re taking a risk. If you object to an issue that you’re going to use on appeal, be damn sure you state the grounds for the objection, or you’ll waive it for appellate purposes. The appellate court won’t address an issue that the trial court didn’t get to hear fully… you can’t generally raise an objection at trial and then come in on the appellate brief and say, “Well, the question called for hearsay,” if you never stated that ground at trial.
And for God’s sake, if you lose a motion to admit evidence, make an offer of proof as to what the evidence was, or it’s useless on appeal. Oddly enough, the law shows get this issue most right: many defense lawyers don’t do this as they should, and a lot of appeals get procedurally defaulted. It would be nice to watch a courtroom drama where the defense attorney was clearly conscious of the record he was building.
Law and Order is good, but not great. In the last one I saw, a judge bars admission of some chat room transcripts as “too prejudicial”. It’s true that this is a discretionary decision, and that evidence must be more probative than prejudicial to be admitted, but in the case at hand, the chat room logs went directly to the state of mind of the killer, which was at issue. They were thus more probative than prejudicial, and I can’t believe a real judge would have ruled that way.
In the same episode, a lawyer violates confidentiality by disclosing the names of the partners in a business, after the detectives show him photos of the squalid livng conditions of the “sex slaves.” Sure, they were terrible, but there are ethical rules for a reason, and that lawyer had no business spilling his guts to the cops.
As compared to, say, Matlock, L&O is a veritable model of textbook procedure… but it’s not perfect, by any means.
Am I correct in believing here that this is only relevent if your objection is overruled, and that a sustained objection could not become an issue since the cure occurred at trial court?
I don’t know what episode you saw, but I’ll WAG that involved a sex case. If so, the writers may have been inspired by the real life case of Oliver Jovanivich, in which the trial judge did in fact use New York’s rape victim’s “shield” law to exclude emails (and perhaps chat transcripts; the record of the evidentiary proceeding was apparently sealed) that the prosecution claimed were more prejudicial than probitive because of the “extra” prejudice attached to the explicit nature of the communication.
Not necessarily. For example, an “evidentiary harpoon” could defeat even the fastest reflexes. For example, if your guy’s confession was ruled inadmissible, and the Commonwealth’s witness, the detective, is talking about the arrest, this bit of dialog won’t leave you thriled about your sustained objection:
Q: “What, if anything, did you observe in the defendant’s car?”
A: “A bloody knife in the back seat.”
Q: “What action did you take?”
A: “Well, I arrested Mr. Doe and then he told me he stabbed his wife.”
At this point, you leap up and object. Naturally, the judge sustains your objection, and may even instruct the jury <i>sua sponte</i> that they should disregard the last thing the detective said. But the damage is done, even though your objection is sustained. The event may become grist for appeal.
Now, you have a tough choice to make. You could move for a mistrial. But there are tactical reasons this may not be a good plan; if a mistrial is declared on your motion, your guy can be tried again. And the motion will further draw the jury’s attention to the harpoon, when that’s the last thing you want - even if you do it at sidebar. And the judge would be within his discretion to deny your motion, reasoning that the jury is presumed to follow his admonitions.
However, if you don’t move for a mistrial, then you may be waiving the error for appeal.
One possible plan is to wait until there’s a break and the jury is excused, and then move for the mistrial. I’ve seen appellate courts rule that this preserves the error, and others rule it doesn’t – slightly different facts, distinctions without a difference, if you ask me, but then I’m not a judge.
Rape shield operates to exclude evidence of the victim’s past sexual history, typically offered to impeach her by the defense. The legislatures of the various states have declared that, as a matter of law, there is a rebuttable presumption that the past sexual history of the victim is irrelevant.
In the L&O case, the evidence was offered by the prosecution, it went went directly to an element of the crime - the state of mind of the accused, since first degree murder is a specific intent crime.
in real life, do you make complex motions on the admissibility of evidence in the judge’s chambers, away from the public?
reason I ask is that those motions are always done in public in my jurisdiction - they’re considered part of the trial, and the public has a right to attend all of the trial except in very unusual circumstances. (I’ve only been in judge’s chambers (the judge’s office) once in 10 years at the bar, and that was exceptional.)
It depends. If the defense is making a proffer on evidence that might be excluded under rape shield, it is often heard in chambers.
Other than that, motions in limine are heard before the jury is sworn, in open court. If an issue arises during trial, then the jury is excused and the motion is argued in open court.
There are times when a quick sidebar or quick trip to chambers is easier than getting the jury in and out. As long as the court reporter is there, it’s on the record.
Finally, testimony itself can be in a closed courtroom (with the jury there, of course) in cases where the victim is a child, for example. This is a discretionary ruling for the trial court.
