The law of "Law & Order" - New York & criminal law types help

Cafe Society
1

ALong with my best friend, I’ve become weirdly addicted to Law & Order, in every flavor. It started with Criminal Intent, which I checked out to watch Goldblum, but then I checked out D’onofrio and fell in LOVE with Goren… now I’m in love with SVU (Munch is my favorite, love him to death) and then the original, mostly for Sam Waterston. And Steven Hill, because I think it’s possible that he’s the most thoroughly believable character I have ever seen on TV in my entire life.

ANYWAY…

I have some questions about the law they talk about on the show, and the inconsistencies. (And yes, I’m fully aware that this is TV and they mess with lots of things for TV’s sake… first and foremost timelines!! Arrested monday, in trial on Friday and still gathering new evidence! Give me a break!)

The number one question I have is regarding “spousal privilege”. First of all, my understanding, which is entirely casual and comes from TV, is that spouses may refuse to testify against one another - it’s a choice, not a mandate. However, on SVU (perhaps on the others, but I just watched a Criminal Intent that was different) they talk about it as though, like it or not, chosen or not, communications between spouses are as sacrosanct as doctor/patient or priest/penitent. Am I confusing testifying itself with WHAT they testify to? (i.e. Wife can testify that she saw hubby with bloody knife, can’t testify that he told her he killed someone). Can someone clear this up? Is this just bad writing on L&O, or different laws, different standards… I need to know! Particularly since, as I said, on CI I just watched them set up a guy so that his wife would be willing to testify against him, and the issue of “spousal privilege” was never mentioned at all.

Second… if what in California we call “Superior Court” is known in New York as “Supreme Court” (the title cards always refer to it that way and it’s not appellate, it’s just court) - what does New York call what WE in Cali call the “Supreme Court” (which is the state version of the federal SC - the court of last resort, post appeal).

Third… again, I know it’s TV, so reassure me: it’s just for TV that the judges are always tossing slam-dunk evidence on some paper thin complaint, right?

Random example: tossing the gun that we know for sure was the murder weapon because when the cops were arresting the guy for a legit parole violation - he kept looking at his open gym bag, cop goes and nudges the bag, says “you don’t mind if I look, do ya?” doesn’t get a no, looks inside, finds gun used in the different crime. Judge says, gun suppressed, no probable cause.

Example two: take in a guy for questioning on a rape, not arrested. Victim says he has a prince albert piercing. Cops give the guy boatloads of beverages. Guy asks to use the loo. Cops go with, take a leak side by side. Note the piercing. Guys lawyer goes on a rant about how the whole thing will be tossed out. Would it?

There’s lots of examples, those just popped into my mind.

Third: What’s the difference between arraignment and indictment? Do all crimes require a grand jury to indict? Isn’t that pretty time and labor-intensive? If not, when are grand juries involved and when are they not?

Fourth: types of defense. There’s been a number of times when the defense attorneys want to use some novel defense and they need to justify it with the judge in advance. Really?

Finally, not a question, just a little rant: American citizens are guaranteed a fair trial. The job of a defense attorney is NOT NOT NOT NOT NOT to “get the client off”! The job of the defense attorney is to PROTECT THE RIGHTS OF THE ACCUSED and see to it that they receive the fair trial to which they are entitled. It sets my teeth on edge to hear the remarks on this show and many others and all over the place that the job of the defense attorney is to get their client off or to otherwise “win”. NO. NOT. I won’t argue against the idea that it’s the defense attorney’s job to win if their client is innocent…yeah, don’t get your innocent client locked up for something they didn’t commit, you should strive for that. But since a whole bunch of your clients are actually guilty, it’s kinda fucked up to view your job as making sure they escape legitimate justice and pretty much a violation of your oath as an officer of the court, in spirit if not in fact. Just because you represent the accused doesn’t mean you aren’t there to uphold and administer justice, whether it works in your favor or not.

This is particularly crazy-making when some avalanche of irrefutable evidence exists that proves beyond any sane doubt that the person in question is guilty, but the defense attorney is bending themselves into pretzels trying to find ways to get them off. WTF? Bend over backwards to make sure that everything happens fairly and correctly and do your best… but why would you even THINK of securing a “not guilty” verdict by any means you can get away with when you know that your client likes to chop up children? Yeesh!

Anyway, thanks for the enlightenment.

2

Spousal privilege: You’ll get better answers from practicing attorneys on this one. It’s somewhat complicated.

The Highest court in NY is the Court of Appeals, I believe.

About the suppression of evidence, in your first example, I really don’t see any reason why it would be thrown out. I suppose if it was thrown out, the prosecution may argue inevitable discovery and get it readmitted it into evidence. Second example, might be argued as 5th amendment violation but I don’t know if that would be successful. He was somewhat forced to incriminate himself by the actions of the police, but I dunno. I’m very rusty on evidence issues and I’d be interested in what other attorneys had to say.

Fourth: Pretty sure thats accurate. The Court isn’t in the business of wasting time and if a certain defense approach is too ludicrous on its face, a judge will disallow it.
These are really down and dirty quick answers, but hopefully it’ll provide some base for later discussions.

3

I don’t know the law in New York, but in general there are two facets to spousal privilege. The first is that a person doesn’t have to testify against their spouse if they don’t wish to. The second is that marital conversations are sacrosanct, and as such the spouse who receives the communication cannot testify as to the content of such conversation without the speaking spouse’s permission.

In the first facet, that means the testifying spouse has the power, and if he doesn’t wish, he doesn’t have to say anything against his spouse – it’s not limited just to conversations, but could include the fact that the guy saw his wife stab the dude – but that only covers his current spouse, not his ex, not his fiancee. In the second facet, the speaking spouse has the power, but this part only covers communications. OTOH, it covers any marital conversations, even if the two people are no longer married – when the communication was made, the speaking spouse had reason to think it would be kept secret; that survives the marriage same as the confidentiality of a communication with your lawyer survives even when he’s no longer your lawyer.

So yeah, your guess is correct – two different things.

–Cliffy

4

This graph shows the organization of the Courts of New York State. Scroll down for Criminal.

The Supreme Court is the trial court which has “unlimited original jurisdiction” – but it shares (and generally yields, when possible) its jurisdiction in some cases with courts of limited jurisdiction, such as the Family Court.

5

An arraignment is an initial appearance in court in which the defendant generally enters a plea; in my state they are generally waived if the accused has counsel. Indictment is the charge handed down by the grand jury. Grand juries are required in all federal felonies, but in state prosecutions for non-capital crimes grand juires are only mandatory where state law requires them - the Constitutional requirement has not been found to apply to states through incorporation in the 14th Amendment. My own state requires grand juries to return indictments for any felony prosecution to go forward, but not misdemeanors, which are simply filed by complaint.

6

I should add, requires indictments unless waived by the defendant, which will occassionally happen to secure a better plea offer.

7

In NY State all defendants are formally arraigned. If you don’t already have counsel at the time of your arraignment, Legal Aid will represent you even if you don’t qualify for their services.

At the arraignment, the charges are read out formally (Legal Aid always pleads not guilty as do 99.9% of private attorneys) and it is also a bail hearing (bail or terms of release, such as probation, are set).

Without getting into specifics, NYS’s Constitution and laws protect the criminal defendant to a much greater degree than does the US Constitution. Lots of things that are perfectly legal in other states are illegal in NYS. Law & Order, does not have a good reputation for legal accuracy.

8

The problem on the first one is “doesn’t get a no.” It’s hard to justify a search as a consent search in the absence of a statement or act indicating clear and unequivocal consent. The second raises interesting questions about the plain view doctirne, but I am unaware of any case law directly on point involving law enforcement sneaking a look at a suspect’s weiner.

9

I agree that the purpose of the defense attorney is to protect the rights of the defendant and hold the prosecution to the law rather than to “get the guy off,” but sometimes doing one means doing the other. If you mean that defense attorneys should not themselves break the law in representing a client, I agree - neither side should. If you mean that they should zealously represent their clients just so long as they do not actually get them acquitted or get the charges against them dismissed, I’d have to say that seems to defeat the purpose of having them at all. I wholeheartedly agree that Law and Order paints defense attorneys in an entirely unflattering and unrealistic light, though.

10

If I can add a query…there’s a courtroom trope that I’ve seen all over but mostly on L&O that has never rung true to me. Let’s say the defense attorney is cross-examining a witness:

DEFENSE ATTORNEY: Now, isn’t it true that you like to molest goats in your spare time?
PROSECUTOR: Objection!
DEFENSE ATTORNEY: Withdrawn.

This was clearly an attempt to say something to the jury that they weren’t supposed to hear. Is this common in real courtrooms, or would real judges smack this down?

11

Another thing about objections… in my own exceedingly narrow experience, you can’t just say “objection!” and leave it at that, assuming everyone understanding the basis, or that you can just object because you don’t like it. There are grounds for objecting, and you must cite the grounds. Assumes facts not in evidence is the first thing that pops to mind regarding the molested goats. First we need to introduce the goats…

12

No, in New York you don’t have to cite the reason unless the judge asks.

13

They do something else on L&O (and every other law show I’ve ever seen) that drives me a little bats because it sure as hell ain’t MY experience and is contrary to everything I learned, but I understand it’s absolutely necessary for dramatic purposes: they allow lawyers to testify indirectly.

Example: McCoy whips out an audiotape, tells us whose voices are on it and when it was recorded, and plays it in court, and no one objects.

I’m sure someone will rush to correct me if I’m wrong, but NO FUCKING WAY IN HELL would that EVER happen in a real courtroom! NEVER NEVER NEVER NEVER.

You may be saying to yourself… huh? As I did in real life under mildly reminiscent circumstances.

Here’s the deal: someone with direct personal knowledge of the facts associated with the audiotape must establish by testimony given under oath that the facts are what they are. It’s called… damn… what is it called? There’s a term for it…it means that you are establishing the genuineness of the thing. And you have to do it for pretty much everything you want to use in evidence and then talk about, to one extent or another.

In the case of the audiotape in the particular episode I’m thinking of, it would have been pretty easy, since it was an audiotape made by the Navy of pilot training. In less controlled and official cases I would imagine that a defense lawyer would be hopping all over the courtroom with a host of objections and issues.

So every time a lawyer on TV whips out a document or tape or knife or pretty much anything at all and goes on to explain what it is, who it belongs to, where it came from… feel free to call bullshit, because that’s the lawyer testifying.

The lawyer’s inability to testify also includes things like telling us all what research shows, what statistics say, and pretty much anything else they ever say out loud while examining a witness that isn’t in the form of a very carefully worded question that is limited to the scope of the witness’ direct personal knowledge.

Now that you know this, you will become very aware of it and notice how dramatic TV and movies constantly ignore this rule in the most blatant and amazing ways. But of course, they must… otherwise TV shows would go on as long as trials themselves do, and that’s WHY trials go on the way they do.

Oh, I remembered: foundation. You are establishing the foundation for the thing. I had a very amusing moment in court after going through this with the judge in my case during the second trail when I was acting as my own attorney and questioning my ex. She had to school me on the basics of that, and then a short while later when I wanted to bring in a piece of evidence I turned to her and said: Is this my foundation moment? and she said, yes, this is your foundation moment.

I guess you had to be there. But it was funny.

14

But you do have rules for the basis of an objection, and your objection must fall within those rules, mustn’t it?

15

In a way, I guess; tactical objecting does happen as long as the attorneys are a tiny bit subtle. For example, you could object and name a basis which you know is invalid. Then the judge overrules it, as you knew they would, but you got what you wanted, because you interrupted the other guy’s flow.

Not against the rules unless you annoy the judge and they tell you to knock it off.

16

If you rip from the headlines too often, can the newspaper sue you for copyright violations?

17

The lawyers on The Practice often objected to questions because they lacked foundation. I can’t recall ever hearing any other TV lawyer do that.

18

Amusing note regarding the lawyers on The Practice - nearly all the actors appeared on Law & Order as criminals or suspected criminals.

19

Newspapers don’t own the facts, just their own expression of the facts.

There are two privileges. The marital confidences privilege prevents the state (or opposing party) from compelling disclosure of confidential communications. The spousal immunity prevents the state from calling your spouse to testify against you without YOUR consent.
Second… if what in California we call “Superior Court” is known in New York as “Supreme Court” (the title cards always refer to it that way and it’s not appellate, it’s just court) - what does New York call what WE in Cali call the “Supreme Court” (which is the state version of the federal SC - the court of last resort, post appeal).

Third… again, I know it’s TV, so reassure me: it’s just for TV that the judges are always tossing slam-dunk evidence on some paper thin complaint, right?

Random example: tossing the gun that we know for sure was the murder weapon because when the cops were arresting the guy for a legit parole violation - he kept looking at his open gym bag, cop goes and nudges the bag, says “you don’t mind if I look, do ya?” doesn’t get a no, looks inside, finds gun used in the different crime. Judge says, gun suppressed, no probable cause.

Example two: take in a guy for questioning on a rape, not arrested. Victim says he has a prince albert piercing. Cops give the guy boatloads of beverages. Guy asks to use the loo. Cops go with, take a leak side by side. Note the piercing. Guys lawyer goes on a rant about how the whole thing will be tossed out. Would it?

There’s lots of examples, those just popped into my mind.

Third: What’s the difference between arraignment and indictment? Do all crimes require a grand jury to indict? Isn’t that pretty time and labor-intensive? If not, when are grand juries involved and when are they not?

Fourth: types of defense. There’s been a number of times when the defense attorneys want to use some novel defense and they need to justify it with the judge in advance. Really?

Finally, not a question, just a little rant: American citizens are guaranteed a fair trial. The job of a defense attorney is NOT NOT NOT NOT NOT to “get the client off”! The job of the defense attorney is to PROTECT THE RIGHTS OF THE ACCUSED and see to it that they receive the fair trial to which they are entitled. It sets my teeth on edge to hear the remarks on this show and many others and all over the place that the job of the defense attorney is to get their client off or to otherwise “win”. NO. NOT. I won’t argue against the idea that it’s the defense attorney’s job to win if their client is innocent…yeah, don’t get your innocent client locked up for something they didn’t commit, you should strive for that. But since a whole bunch of your clients are actually guilty, it’s kinda fucked up to view your job as making sure they escape legitimate justice and pretty much a violation of your oath as an officer of the court, in spirit if not in fact. Just because you represent the accused doesn’t mean you aren’t there to uphold and administer justice, whether it works in your favor or not.

This is particularly crazy-making when some avalanche of irrefutable evidence exists that proves beyond any sane doubt that the person in question is guilty, but the defense attorney is bending themselves into pretzels trying to find ways to get them off. WTF? Bend over backwards to make sure that everything happens fairly and correctly and do your best… but why would you even THINK of securing a “not guilty” verdict by any means you can get away with when you know that your client likes to chop up children? Yeesh!

Anyway, thanks for the enlightenment.
[/QUOTE]

20

Newspapers don’t own the facts, just their own expression of the facts.

There are two privileges. The marital confidences privilege prevents the state (or opposing party) from compelling disclosure of confidential communications. The spousal immunity prevents the state from calling your spouse to testify against you without YOUR consent.

[quote]
Second… if what in California we call “Superior Court” is known in New York as “Supreme Court” (the title cards always refer to it that way and it’s not appellate, it’s just court) - what does New York call what WE in Cali call the “Supreme Court” (which is the state version of the federal SC - the court of last resort, post appeal).
[/quote

New York Court of Appeals

Indictment is a formal accusation by the state. When a grand jury is required may vary by state law. Often the prosecutor may indict simply by submitting a "letter of information. ". An arraignment is where the accused gets the opportunity to enter a plea.