Most people have a favorite movie and a favorite TV show. Many of us even have a favorite legal movie or legal show that explores the ups and downs of life in the courtroom, as well as the events leading up to the drama that unfolds in the courtroom. Indeed, legal dramas have frequently provided Oscar-nominated material, such as in the case of To Kill a Mockingbird, A Few Good Men and Philadelphia, among other memorable films.
However, Hollywood does not always hit the mark in depicting how legal rules would apply to a particular real-life courtroom scene. Here, we'll look at five subject areas that have been depicted unrealistically in legal TV shows and the screenplays of Hollywood legal dramas.
1. A new exhibit can be introduced at trial without a proper foundation.
Few fictional attorneys are as revered as Ben Matlock, the folksy lawyer memorably played by Andy Griffith in the eponymous 1980s TV show, Matlock.
In the 1986 episode, "The Annihilator," Matlock’s client, a professional wrestler played by Dick Butkus, is accused of murder. At trial, while examining the real murderer as a witness, Matlock leaves his lectern, walks to the side of the courtroom and unveils an easel with two photographs. Matlock then tells the witness: "These two photos depict you entering the building of the crime scene at 9:30 and leaving at 9:45 p.m. Let’s call these Exhibits E and F."
In reality, this is not a permissible approach to introducing exhibits in a real court of law. In court, a foundation must be laid before any exhibit can be entered into evidence (so as to be considered by a jury), and this requires the submission of evidence that would serve to authenticate the proffered exhibit.
In this instance, prior to introducing the exhibits, Matlock would have had to establish their authenticity by asking a person with direct personal knowledge of the photos (such as the photographer who took them, or possibly a participant depicted in the photo) to corroborate that the photos were genuine.
At that point, the attorney could then move to admit the photos into evidence, the judge would rule on their admission, and also assign the exhibit numbers (e.g., "Exhibit E" or "Exhibit F"). Of course, those steps don’t always fit neatly into a Hollywood script that's seeking to build tension between the actor playing an attorney and the witness on the stand.
2. Lawyers are free to "debate" witnesses or opine on evidence.
In questioning the same witness noted above in "The Annihilator," Matlock declares flatly to the witness on the stand: "He [the victim] could have been killed long before we previously believed. You just destroyed your own alibi."
The witness replies, "I don’t know what you’re talking about."
Matlock retorts, "I believe that’s true."
This sequence was argumentative and would have given rise to at least one objection from the prosecutor, for two reasons:
- First, in court, apart from the attorney’s opening and closing statements, in engaging a witness, the attorney is strictly limited to asking questions of that witness.
- Second, an attorney may not contemporaneously offer their opinion of the evidence or testimony that was just introduced.
Although an attorney is permitted to urge the jury to reach a certain conclusion regarding the evidence during the closing argument, when questioning a witness, the attorney is not permitted to deviate from the staccato rhythm of question-answer/question-answer. Though not susceptible to the type of "gotcha" dialog that Hollywood prefers (think A Few Good Men and the epic Tom Cruise/Jack Nicholson stand-off), the point is that it is the jury that is supposed to decide the significance of facts introduced during trial. It is not the role of the attorney to offer a blow-by-blow color commentary.
3. A lawyer may request a break in a deposition once a witness has begun answering a question.
In the popular FX (and then DirecTV) TV show, Damages, much of the drama concerns wranglings—and, at times, violence—committed behind the scenes of the private law practice of the lead character, Patty Hewes (Glenn Close). Her legal protégé is played by Australian actress Rose Byrne.
The Season 1 Damages episode, "Blame the Victim," delves into between-the-lines legal drama in depicting the deposition of a civil case witness. In that episode, Byrne’s character is one of two attorneys defending the witness at the deposition. The opposing counsel asks the witness: "What was your state of mind before the accident? Were you upset, angry?"
The witness begins to answer, "Well, just before it happened, my wife and I…" when Byrne interjects and asks, "May we take five minutes, please?"
This might seem pretty mundane, but in a real-life deposition, this tactic would not fly. Once a question has been posed at a deposition and the witness begins answering, the witness must complete their answer before any break in the proceedings can be taken. One key reason for this is to prevent exactly what occurred next in this episode: the attorney decamping with the witness outside to coach the witness on their answer (another thing that is forbidden in the real-life legal system).
4. Once a jury is selected, newly empaneled jurors can be brought into the case mid-trial.
You may have been selected for jury duty in the past, and you may have undergone a process known as "voir dire"—when you are questioned about your background and views on issues surrounding a case—in the presence of attorneys for both parties to the trial. This process allows attorneys for each party to object to certain jurors being included on the jury that ultimately sits in judgment of the case about to unfold. That is why the scene depicted in the 1987 classic, The Untouchables, would not transpire in real life.
Kevin Costner’s character, Elliot Ness, becomes aware that the judge overseeing Al Capone’s tax evasion trial has himself been bribed by Capone’s team—in addition to the jury as a whole. The judge, confronted by Ness and fearful of being exposed, switches out the entire criminal case jury mid-trial for a jury hearing a divorce case in another courtroom. This would not happen in real life. Although a judge can declare a mistrial for various acts involving juror misconduct (or for other reasons), the judge cannot simply bring in a whole set of new jurors mid-trial without ending the initial trial (in a mistrial) and convening a new trial, during which the new jurors undergo the voir dire process.
5. Judges can reach insanity rulings "on the fly."
Primal Fear, the 1996 crime-thriller, featured a talented cast including Edward Norton and Richard Gere. What it did not feature was a realistic portrayal of how a judge would reach a finding of insanity resulting in the commitment of a criminal defendant to a mental institution (instead of prison).
In the plot of the film, Edward Norton's character is accused of committing a savage, fatal attack on a Chicago priest. Under questioning at trial, Norton "snaps" and lunges at the prosecutor (Laura Linney), in sharp contrast to his prior soft-spoken and stuttering demeanor. It's a development that convinces the trial judge, played by Alfre Woodard, that Norton’s character is insane. The judge dismisses the jury and orders a bench trial of Norton’s character, presided over by herself. Without commissioning any expert psychiatric testimony, she concludes that Norton is insane, thereby sparing him prison.
This is not realistic as a matter of law because of the judge’s peremptory dismissal of the jury, and because a valid evidentiary basis for such a finding of insanity could not hinge simply on the judge’s subjective perceptions of the defendant’s conduct at trial. The finding would have to include reference to expert psychiatric testimony concerning the defendant’s mental state.
Even in real life, there is plenty of excitement in the courtroom, but thanks to the procedures that help ensure that justice is carried out, a real-life courtroom is considerably less dramatic.