April 15, 2013
Now in its sixteenth week, the Jodi Arias trial is being broadcast across the nation. But only a few years ago there was considerable debate over whether cameras should even be permitted in the courtroom.
Protagonists argued that cameras opened the process to the masses and provided greater accessibility. Antagonists countered that it would result in judges and prosecutors being chosen because they fit the needs of Central Casting rather than old-fashioned competence. Elected officials must appeal to a wide populace, leading them to make selections favoring style over substance, with camera-ready but unskilled lawyers appearing in the more sensational trials.
Long before “reality” legal drama entered our living rooms, television offered fictionalized legal drama. For decades audiences had a heightened sense of drama”which seldom exists in the courtroom”surrounding the practice of law.
As a legal practitioner and avid TV viewer, I feel that the law as depicted in prime-time drama is entirely unrealistic. In real life, I have never seen a legal interrogation as depicted on Law & Order and its many franchises. In no state can the authorities beat a confession out of a suspect, and I would be surprised to find that any jurisdiction allowed a confession obtained even by the implicit threat of force.
Some of the racier procedural dramas such as The Wire or The Shield almost always feature a questioning during which the suspect is held for hours when finally the detective leans in, shuts off the tape recorder, and says, “Go ahead, tell me what happened”off the record.”
The public has been led to believe that the words “off the record” imply you can confess to anything and it somehow doesn’t count toward prosecution. Save your lawyer a headache and yourself a conviction: Don’t say anything until representation is in the room beside you.
In a police station nothing is “off the record” unless you whisper it into your attorney’s ear. There is usually another hidden tape recorder somewhere taking down everything you are about to say.
In the classic TV series Perry Mason, Perry (played by Raymond Burr) was a criminal-defense attorney who only took cases of people whom he believed were innocent, and he always managed to prove they were.
In reality, he would starve as a criminal-defense lawyer. Although there are corrupt cops and some people wrongly accused, in my experience most suspects are guilty. And the Mason-style cross-examination of hollering at a witness until they break down and confess on the stand is highly unrealistic.
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