For a show about lawyers, Daredevil is notorious for the number of artistic liberties taken.
- Matt and Foggy have a tendency to run afoul of rules regarding client solicitation. In fact, when it comes to representing Karen in the very first episode of season 1, Foggy could've easily gotten in trouble since he was at the time motivated by pecuniary gain, and almost walked out of the interrogation room when Karen said she could not pay them. (Matt wouldn't be in trouble since whilst he was initially motivated by the potential for a paying client, he agreed to represent Karen for free when he realized, from listening to her heartbeat, that she was telling the truth and she was innocent).
- Matt and Foggy’s internship at Landman and Zack as depicted in "Nelson v Murdock".
- As Matt and Foggy are students at or near the top of their class at an Ivy League law school (Matt graduating summa cum laude, and Foggy cum laude), they likely would not have been interns working out of a storage room. Big firms like Landman & Zack typically recruit students like them for "summer associate" positions after their second year in law school. Some firms would probably not consider Matt for such a position because of his blindness (though they'd never admit that to his face), but he still would have had opportunities. It's possible they could have been interns before or after being summer associates, especially if it was a paid internship and they needed the money (they had to have some money lying around to get Nelson & Murdock up and running).
- The straw that breaks the camel's back for Matt that leads him to suggest to Foggy that they should go start their own firm is after a meeting that was comprised of eleven L&Z lawyers (plus Matt and Foggy) on one side of the table, with just the poor plaintiff and his lawyer on the other. Such a scene is likely meant to be an exaggerated stereotype of big firm lawyering. That said, this flashback's purpose isn't so much legal accuracy as it is to illustrate that this big law firm are not on the side of the little guy and that Matt and Foggy would not like working there.
- The handling of Elena Cardenas' tenement case has a few moments that would likely not happen in real life.
- In "World on Fire," while Matt goes to the 15th Precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyers at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case with her. Marci deciding to approach them and conduct the conversation in the lobby is her way of saying that to her, this case isn't important enough for her to take them up to her office to discuss...even though they really should for the sake of privacy. On top of that, Foggy's "The Reason You Suck" Speech to Marci at the end of the discussion gets it backwards. Foggy tells Marci that it's her job to convince Mrs. Cardenas to take Landman & Zack's buyout offer. In actuality, Marci's job is to make the case to Foggy as to why Mrs. Cardenas should take Landman & Zack's offer. Foggy's job is to then relay this information to Mrs. Cardenas, and advise her on whether or not to take the offer.
- When Mrs. Cardenas first goes to Nelson & Murdock for a client consultation, Foggy says they will try to negotiate a better deal for her. This is the right approach. But later on, after Wilson Fisk takes over Tully's properties, Elena comes to them and lets them know that Fisk has doubled Tully’s offer, and Foggy inexplicably changes his mind and agrees that she should not accept it. Afterwards, Matt tells Foggy that that was a bad idea, and he is seemingly proven right as Fisk subsequently has Elena killed as bait to lure Matt into an ambush by Nobu. But actually, Matt is right for a different reason: as a small firm that's only just opened up, Nelson & Murdock are in no position to stop Fisk from carrying out his plans here. Under these circumstances, Foggy and Matt should negotiate with Fisk's lawyers to try and get the best possible deal for their client. They also need to sit down with Mrs. Cardenas and give her the blunt truth about the harsh realities of litigation, instead of promising her that they could prevent her from having to leave her home. Whether or not this would've prevented Fisk from having her killed and he would've simply found someone else to kill as bait for Matt, is another question entirely.
- "Speak of the Devil": Matt goes to the art gallery owned by Fisk's girlfriend Vanessa Marianna to see how much she knows about Fisk's operations / whether she knows Fisk for the murderous crimelord he really is. The visit goes sideways when Fisk himself shows up, and there is a lengthy and tense conversation between the two archenemies. Since Matt is the opposing counsel on a pending lawsuit that Fisk is involved in (and one where Fisk has his own counsel), this sort of ex parte communication is completely inappropriate under section 4.2
of the Model Rules of Professional Responsibility. When dealing with represented parties, Matt ethically can't reach out to Fisk directly; he'd have to go through Fisk's lawyers first. On the other hand, Matt and Fisk both seem to be aware that this conversation is unethical, since upon introducing himself, Matt says, "Although we probably shouldn't be talking. I believe we're on opposite sides of a tenancy case."- There's a proper aversion of this in "The Man in the Box", when Matt visits Fisk in prison, and he has to sign a very restrictive non-disclosure waiver with Fisk's lawyer before he can sit down with Fisk. Similarly, in season 3's "Upstairs / Downstairs", when Karen visits Fisk, she's stopped by his FBI bodyguards before she can enter and they tell her that Fisk's lawyers have to sign off on all press requests, which she circumvents by claiming she's come to do a story about Fisk's late mother Marlene.
- In the episode "Rabbit in a Snowstorm", John Healy, an assassin working for Fisk, is arrested after beating a gangster to death with a bowling ball during a paid hit.
- Healy wants the “180.80” date. This is a reference to section 180.80 of the New York Criminal Procedure Law, which requires a defendant to be released if a preliminary hearing on a felony complaint or a grand jury indictment has not taken place within 120 hours of his arrest. Healy doesn’t seem to be talking about this, however. He seems to be saying he wants to go to trial ASAP. CPL section 180.80 has nothing to do with setting a trial date.
- Healy wants to waive all discovery and go directly to trial. The writers seem to have mixed up how the discovery process works in a criminal case vs. how it works in a civil case. Under the New York laws governing discovery in criminal cases that were in effect in 2014 when season 1 was filmed, defense discovery basically consisted of a written demand to view the prosecution’s evidence before the trial. There were no time-consuming discovery procedures such as depositions or written interrogatories. So there doesn't seem to be any good reason to waive discovery, even if Healy wants to go to trial quickly. Especially considering that it is also poor form to go to trial without knowing what the evidence against Healy is, as that is crucial to forming an adequate defense strategy. Healy may want to go to trial as soon as possible, but he doesn’t necessarily have the last word on the subject. If Matt and Foggy need time to prepare the case, they're likely going to get it, no matter what Healy wants. Healy may have prevailed on this point, however. The case appears to have been brought to trial very quickly (and we can imagine Fisk was pulling strings here).
- Matt tells Healy he'll need to testify. Like happens later in Frank Castle's trial in season 2, the decision on whether or not to testify is up to the client, not his counsel.
- The judge pre-instructs the jury at the beginning of the trial. This is standard procedure. However, in this case, we hear the judge giving instructions regarding what to do if they are unable to reach a verdict. This is something that wouldn't be mentioned at the beginning of the case, because the judge wouldn’t want the jury to even be thinking about failing to reach a verdict.
- Opening statements are meant to be a non-argumentative discussion of what the evidence will show. In the opening statement Foggy delivers here, he is basically arguing the case. He also makes a rookie mistake by pointing dramatically at the prosecutors during his opening. And like in a lot of courtroom dramas, he commits major breaches of courtroom etiquette by going into the well of the courtroom, getting way too close to the jury box, and at one point he even jabs a finger on the top of the partition surrounding the jury box.
- Matt’s closing argument is...unusual, to say the least. Matt briefly discusses the law and the evidence and argues the prosecution has not proved its case and, specifically, has failed to prove Healy was not acting in self-defense. This would be a fairly typical closing argument. But then he veers into a discussion of how right and wrong are not always the same as legal and illegal, and the jury's job is only to determine the latter. At the same time, he is careful not to argue against his client, which would be unethical.
- When the jury foreman reports they are unable to reach a verdict, Foggy whispers to Matt, "Allen charge," and that the judge will send the jurors back to continue deliberating. "Allen charge" is shorthand for a jury instruction that is given when the jury reports that they are deadlocked, and the judge sends them back to continue deliberating. New York uses a modified version of the “Allen charge.” Realistically, the judge wouldn’t immediately instruct them to continue deliberating. She would first question the jury foreman about whether or not she thinks further deliberations would help. She might also ask for the exact numbers on how the jury is split (though without disclosing which number is for “guilty” and which is for “not guilty”). Depending on those responses, the judge would then decide whether to instruct the jury to resume deliberations. The judge might conduct a sidebar to confer with counsel before making their decision. The first time the jury reports a deadlock, it’s likely the judge would instruct them to continue deliberating. If, after further deliberating, the jury is still deadlocked, the judge would eventually declare a mistrial.
- Ultimately, it is decided that Healy will not face a re-trial due to the hung jury. While not all of the proceedings are shown onscreen, it is clear that at some point, the judge must have decided the jury was hopelessly deadlocked (due in part to Fisk having gotten to the jurors), and she declared a mistrial. Healy seems quite confident he would not be re-tried. It is left ambiguous as to whether this is because Fisk found a way to get leverage over the prosecutors, or because the prosecutors decided that there were legitimate reasons for not re-trying the case.
- In the season 1 finale, Nelson & Murdock gets a big break that allows them to locate a crucial witness against Fisk when Marci turns over files pertaining to work that Landman & Zack has done for Fisk. Marci warns Foggy he’s basically asking her to commit “career suicide.” She is right, to a certain degree: if she were caught copying a client’s files and delivering them to someone to use against the client, she surely would be fired, and if the reason became known, her prospects for future employment would not be great. At the same time, though, there is something called the crime-fraud exception; lawyers have an obligation not to participate in crimes and to tell the police if they have reason to believe their client is engaged in or is about to engage in criminal activity. Landman & Zack has failed in both obligations (by being complicit in Fisk's criminal activities and not reporting said activities to the police), so Marci has a legal, ethical, and professional duty to turn over anything she can to the proper authorities. Now, admittedly, it's a bit ethically dubious that she'd hand this information over to the lawyers on the opposing counsel in a case against one of her firm's clients (especially considering that she recently slept with one of said lawyers). But considering that Marci is still practicing law in season 2 and secured a job at Hogarth, Chao & Benowitz, it's likely that the Bar Association were convinced to let this slide on the grounds that with how deep Fisk's corruption of the legal system went, she had very few options.
- Fisk is incarcerated at Rikers Island in season 2. However, that is a state correctional facility, and season 3 establishes that Fisk was convicted on RICO charges, which are federal.
- In "Dogs to a Gunfight", Nelson & Murdock make a deal with DA Reyes ostensibly for Grotto to give up another criminal in exchange for protection for the Punisher. Except it turns out that Reyes double-crossed them, as she is actually conducting a sting and using Grotto as bait to draw the Punisher out of hiding. Once the truth is revealed, Reyes can be seen giving orders to the ESU team to shoot to kill when they open fire on Frank as he's busy fighting with Matt. It's clear that the goal of the ambush is to kill Frank, not arrest him, making this a blatantly illegal attempted extrajudicial killing. The circumstances under which the police are allowed to use lethal force do not include “because he did some bad stuff before.” While defense of others (Grotto) could be used as a justification, the police opened fire before that was established. Furthermore, Reyes is the one calling all the shots here. In real life, the police department and the prosecution are separate entities, explicitly for this reason.
- Furthermore, Reyes would be lucky if she just got disbarred for this. Using a man as bait for a killer is illegal, as is misleading said guy's counsel. Nelson & Murdock arguably would have a case to file a malpractice suit against Reyes and probably would have prevailed, and that probably would've gone down if, well, Frank's trial didn't come in the way.
- The People of the State of New York v. Frank Castle is an exercise in this trope:
- It starts with Christopher Roth, the public defender who serves as Frank’s original lawyer. No self-respecting defense attorney would suck up to the District Attorney the way Roth does. In his scene at Nelson & Murdock, the way he talks makes it seem as though he's working for Reyes instead of his client, especially when he tries to get Karen to sign a false statement that fits Reyes's theory of the case. He even talks enthusiastically about his own client getting the death penalty in Delaware. He then makes a remark about having won a domestic violence case because he believes in protecting women, which doesn't make much sense. Roth is ostensibly a defense lawyer, who would have been representing the accused abuser, not the victim. While women can be abusers and rapists, the majority are men, and the majority of abuse victims are women. Finally, no court would ever appoint someone who had tried only one case to represent the defendant in a multiple murder case.
- Matt, Foggy, and Karen go to see Frank in the hospital, and ethically, they're on very thin ice. As Reyes correctly points out, Frank is already represented by counsel, and it is unethical for Matt and Foggy to talk to him about the case without the knowledge and permission of his attorney of record. They may also have violated an ethical rule against in-person solicitation, when they ask Frank to hire them as his attorneys (although they could argue that they technically hadn't violated this rule because they were offering to take the case pro bono, very few people would've bought it).
- While Matt is away helping Elektra infiltrate a gala, Foggy stays at the hospital and negotiates a plea deal for Frank. Foggy does a pretty fantastic job here, in negotiating 37 counts of murder down to one, even though in real life, such a negotiation would probably only happen if the prosecution's case ran into some major snags. But when taking the defendant’s plea after the deal has been finalized, the judge (or in some cases, the prosecutor) goes over the terms of the deal to make sure that the defendant understands and agrees to them. During this time, the judge will also ask questions meant to confirm that in fact the defendant is taking the deal willingly, and has not been coerced or been offered something improper in return. Once this is done, the judge takes a waiver of the defendant's constitutional rights, then the defendant enters their plea (and in most states, the defendant has to sign a written form that outlines the terms of the deal and the defendant's agreement to it). None of these things happen in Frank's arraignment, and, of course, he reneges on the deal by pleading "not guilty."
- The trial is set to start literally one week after Frank is arraigned. This is a pretty unrealistic timeline. In real life, following the arraignment and assuming Frank waived grand jury proceedings, a complex trial of this scope would be preceded by several months of pre-trial discovery, motions, and hearings, in order to establish what kind of evidence could be presented to the jury. This is especially important in cases like this one that are going to rely heavily on expert testimony. Corrupt or not, Reyes wouldn’t want to rush this, either. And even if they did, it would be extremely unusual (and likely appealable) for the judge not to grant the defense an extension before the trial started. note The judge also states that she will set the trial date in consultation with the district attorney. This would be an improper ex parte communication with one side only; with only a few exceptions, the judge has to conduct all proceedings in a case in the presence of both parties and their attorneys.
- When Foggy tells Matt about the trial date, Matt says they'll "motion for an extension." A postponement of a trial is actually called a "continuance." A lawyer would say some variation along the lines of, "We'll move for a continuance," or "We'll ask for a continuance," or "We'll file a motion for a continuance."
- After that, when Matt says they'll get an extension, Foggy tells him Frank agreed to the trial date. That Frank agreed to this trial date is irrelevant. His right to a speedy trial does not override his right to the "effective assistance of counsel" as guaranteed by the Sixth Amendment. Matt and Foggy would've almost certainly been granted a continuance by arguing they cannot possibly provide adequate counsel to their client with only a week to prepare.
- When Matt and Foggy are discussing possible defenses, they mention the archaic M’Naghten Rule, a definition of insanity which says that a person is insane if they are unable to tell right from wrong, and/or are unable to comprehend the consequences of their actions. While it is used in some states, New York is not one of them. Foggy also talks about the need to “lock” a defense, a term that probably no lawyer has ever used ever.
- It's mentioned that Nelson & Murdock deposed members of the Dogs of Hell. Depositions are not permitted in criminal cases in New York.
- In their pretrial discussions, Karen suggests pushing for a mistrial to gain time. It is unethical to cause a mistrial deliberately. And neither Matt nor Foggy corrects her on this point.
- Throughout the trial, Karen has several one-on-one meetings with Frank by herself. As an employee of Nelson & Murdock, her conversations with Frank would be protected by attorney-client privilege. However, Karen does not have the legal training or knowledge to recognize the legal significance of whatever Frank is telling her or to know what follow-up questions to ask. Even if Frank was insisting on talking to Karen alone, Matt and Foggy should have insisted on going with her in the interests of conducting "client control," something that (admittedly) would be very difficult with someone like Frank.
- During jury selection, the prospective jurors are shown expressing strong opinions about Frank while in the courtroom. Realistically, they would have been questioned separately about this so as not to taint the rest of the panel. It also appears that Frank was not in the courtroom during jury selection, and there is no indication that he waived his right to be present for this. The judge should also not have bullied the defense counsel into accepting the jury.
- The seal behind the judge implies that the trial is in federal court. If that were the case, the prosecution would not be done by the District Attorney but by the United States Attorney. The seal also identifies this court as the "United States District Court for the District of New York City." There is no such court. In real life, New York City is split across two US district courts: Manhattan and the Bronx are in the Southern District of New York, while Brooklyn, Queens, and Staten Island are in the Eastern District of New York.
- At the start of the trial, there's a long, dramatic sequence in which Frank is brought into the courtroom in chains and a prison jumpsuit. Then during the trial, he has heavily armed guards posted near him. These are two big mistakes on Nelson & Murdock's part, as letting Frank appear in front of the jury this way is conveying to them that he is so dangerous he has to be locked up and restrained even while he's in court. This would deprive him of any chance at a fair trial, and it is malpractice on Matt and Foggy's part to allow this to happen. Realistically, Nelson & Murdock would have had Frank "dressed out" in street clothes for the entire duration of the trial, not just when he's on the stand testifying (in fact, this need for defendants to look presentable at trial is such a big deal that public defenders' offices often do clothing drives). And while it is permissible for a dangerous defendant to be shackled during trial, it has to be done in such a way that the shackles cannot be seen by the jury. The same is true for the guards; there might be extra security posted in the courtroom in a case like this, but it needs to be handled in a way that is not prejudicial to the defendant. Both of these matters are things that would have been addressed before the trial began.
- Reyes's opening statement is argumentative, and comes off more like a final argument than an opening statement, which is supposed to summarize, in a non-argumentative manner, the evidence and witnesses that the jury will be shown during the trial. It was objectionable on this basis, but Foggy does not object. However, whether to object during opening is a judgment call on the counsel's part.
- The defense's opening statement as delivered by Foggy is also problematic. Matt is supposed to be the one giving the defense's opening statement, but he's running late because he overslept, forcing Foggy to step in. The ethical thing for Foggy to do at this point would be to defer the defense's opening statement, or at the very least call a short recess so he can track Matt down. The judge even asks Foggy if he wants to do so. Delaying the opening statement would've probably been the better call to make, seeing as Foggy's opening statement doesn't actually tell the jury what the defense's theory of the case is or what the defense's evidence will show. And much like in Healy's case, Foggy commits a major breach of courtroom etiquette by walking into the well of the courtroom and getting way too close to the jury box.
- Matt and Karen going over strategy for the examination of Dr. Gregory Tepper. "Who doctored those certificates? And if he says 'no one' then we already got him admitting they were doctored!" Realistically, that would be shouted down by Reyes as "Objection. Assumes facts not entered into evidence," as in assuming the "fact" that the certificates were doctored at all. It is necessary for the defense to first lay the foundation, i.e. they need to first establish and enter it as evidence by asking all sorts of mundane questions leading up to "were the reports in any way doctored?"
- Reyes makes an objection to Matt asking "leading" questions when he's doing his cross-examination of Tepper, despite the fact that leading questions are allowed in a cross-examination.
- When Tepper says he has to say something (which is that Elektra threatened him), the judge sends the jury out of the courtroom. However, Frank should not have also been removed from the courtroom; he has a right to be there. And it probably was not necessary to also remove the spectators from the courtroom. After Tepper makes his statement about being threatened, Foggy correctly moves for a mistrial, which should have been granted. Striking Tepper’s testimony is not the proper course of action in these circumstances, seeing as he is a critical witness for both sides (the prosecution cannot prove its case without Tepper's testimony, and the defense has not had the opportunity to cross-examine him). While the judge might instruct the jury to disregard Tepper's testimony, it's very difficult to "unring the bell" so to speak.
- And there is the issue of whether Tepper altering the medical records on Frank's family is relevant to the case at hand. In federal courts and many states like New York, a witness’s veracity for truthfulness is relevant. Even if Elektra hadn't threatened him, Tepper's altering medical records would discredit his testimony, which could be introduced on cross-examination. Confronting Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Frank’s case. However, as the medical records would have been collateral, the judge would have limited questioning to avoid confusing the jury with facts that are not material to Frank’s case.
- Expert witnesses, such as the doctor who testifies regarding Frank’s brain injuries, are allowed to give their expert opinions regarding facts (e.g. Frank suffered a brain injury, and this brain injury affects his judgement). They are not allowed to make legal conclusions (e.g "any infractions would be considered crimes of passion"), which is something reserved for the judge and the jury. Also, "crimes of passion" is something only really applicable when converting murder to manslaughter, which is still a serious crime, and murder is not the only crime that Frank has committed onscreen (kidnapping, false imprisonment, torture, etc).
- There is a legal concept called “extreme emotional disturbance” (EED) in New York law. It’s called an affirmative defense but is more accurately described as a mitigating factor. If the jury finds the defendant was acting under the influence of EED, this reduces a killing from murder to a lesser form of criminal homicide, manslaughter. Here is a link to a jury instruction on this kind of defense. Arguing EED appears to be the defense strategy Foggy eventually comes up with (sometime after the opening statement). In this particular case, it’s also a double-edged sword. If Foggy can convince the jury that Frank was acting under the influence of EED, then his murders are manslaughter, not murder. However, the cause of the EED is the murders of his family, which gives Frank a motive for murdering those responsible. Motive is not an element of the crimes, but jurors generally like to be given a motive, so this would help the prosecution. Whether or not Frank was suffering from and acting under the influence of EED is an ultimate issue in the case that's to be decided by the jury. For this reason, it is improper for Foggy to ask the defense expert whether Frank meets the definition of EED. Reyes objects to the question as calling for a conclusion. She's right to object, but she makes the wrong objection. An expert witness is allowed to give his opinions and conclusions, but they are not allowed to invade the province of the jury and give an opinion on an ultimate issue like this. Reyes should have objected on this ground. And since she didn’t, the judge properly overruled the objection she did make.
- One of the more egregious things is that what is shown of the trial on-camera isn't even about the crimes that Frank had committed. Everyone acts as if what had happened to Frank’s family is far more relevant to the current case than it should have been. The only thing about their deaths that might have been relevant would be his sanity.
- Somehow, Nelson & Murdock are able to get Colonel Schoonover as a character witness and not have his deposition. During her cross-examination, Reyes gets tripped up and embarrassed by an "actually I was there" trap. This doesn't happen in real life because all witnesses are deposed prior to trial so that neither defense nor prosecution are just playing a guessing game. It doesn't matter if Schoonover's name was redacted on classified mission reports. Deposition questions from Reyes would be like "what's the nature of your relationship to Frank Castle?", "Why do you endorse Frank Castle's character?", and "Were you there to personally witness the mission?", among others.
- Foggy sends Karen to talk Frank into testifying on the stand. While there isn't anything wrong about having a criminal defendant testify in his own defense, it is highly discouraged because letting the defendant testify opens the door to uncomfortable questions from the prosecution, and there is rarely much the defendant can say that will help rather than hurt their case. In addition, the decision whether to testify is a decision that is made by the client, not his counsel. At most, the counsel can advise the client as to the ups and downs to each course of action. And regardless of the connection Karen has established with Frank, she is probably not the right person to be communicating this to him.
- When Frank takes the stand, a young man in the gallery begins yelling about how Frank killed his father. The judge orders him removed from the courtroom...but does nothing about the spectators waving signs in the courtroom decrying Frank as a vicious murderer who should be burned at the stake (and at least one sign reading "Free Frank"). Those spectators and their signs should have also been removed, as they are not allowed in a courtroom. Spectators are not even allowed to wear ribbons or pins commemorating the alleged victims. In fact it's highly unlikely these people would've made it past security, either. As soon as it becomes apparent that the judge wasn't taking action, Foggy should have objected to the presence of the sign-waving spectators and asked for them to be removed too; this should have been done at a sidebar, out of the hearing of the jurors. This might have been another time to move for a mistrial.
- Matt's "direct examination" of Castle is anything but one. After a few questions, Matt asks the judge for permission to treat Frank as hostile (ask the witness leading questions as if they were called by the opposing counsel), then just abandons all pretense of questioning Frank and argues the case to the jury as if he was giving a closing speech. Even worse, no one does anything about it. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting vehemently, and the judge would've ruled, "Sustained. Mr. Murdock, you are supposed to be questioning the defendant. Save your speech for your closing argument." In fact, it's possible the judge might have intervened without the need for the prosecutors to make an objection. Most judges will "let the lawyers try their case," but what Matt did is so extreme that the judge might have taken action without an objection.
- When Frank asks the judge if he could say something (so he can have his outburst on the stand), she should have said "no." If she allowed him to speak, she should have stopped him and had him removed from the courtroom much sooner.
- Sentencing for Frank after he got himself convicted would not be on the same day as the trial. It would take several weeks of more hearings, although one could assume Fisk was pulling strings to get Frank to him before the sentencing could send him to another prison.
- It's very unlikely in real life that a white-collar criminal like Stewart Finney would end up in the same prison as violent murderers like Wilson Fisk. Finney, however, explains when he introduces himself to Fisk that he got caught because he double-crossed the brother of a very influential Justice Department official, so it's possible the official in question pulled strings.
- At the beginning of "Bang", we see Matt and Foggy arrive at the office and Karen fills them in on the clients in their waiting room. While the scene is funny and is meant to convey the eccentricity of Nelson & Murdock's clientele, Karen is publicly disclosing each individual’s legal problem in earshot of the other clients. By this point, you'd think Matt and Foggy would've taught her about client confidentiality.
- In season 3, when Fisk has the FBI go after Matt's friends, Karen asks Foggy to be her attorney as she fears that Ray Nadeem will find out she killed James Wesley and either send her to jail or have her killed. Foggy asks her to hand him five bucks, and she obliges. This is a common trope in TV, movies, and literature, but it is not necessary for money to change hands in order for the privilege to apply. The privilege is in effect so long as Karen is speaking confidentially to Foggy in his capacity as her attorney. The only thing Foggy needed to say was, “OK, I’m your lawyer.”
- In "A New Napkin", Foggy sketches a doodle for the trio's new firm on a napkin, calling it Nelson Murdock & Page. Karen is not a lawyer, and in New York, it's actually a violation of ethics for a non-lawyer to have a partnership stake in a law firm.
- The circumstances behind Wilson Fisk's release from prison in season 3 are semi-plausible but there are some artistic liberties.
- Fisk makes a deal to give up information on an Albanian crime syndicate in exchange for charges against Vanessa being dropped. This is the sort of deal that would be made with the DOJ or the U.S. Attorney’s office, not with the FBI, as the decision on whether or not to charge lies with the prosecutors, not the investigators.
- Rule 35 of the Federal Rules of Criminal Procedure allows the government to request a post-conviction reduction in sentence for a defendant/inmate who has provided "substantial assistance." It does not mention any other types of benefits that such a person might receive. With that said, the benefits that Fisk receives are the kind that prosecutors are allowed to give to cooperating witnesses, for example, the return of forfeited property or an agreement not to prosecute someone close to him (in this case, Vanessa). In practice, Ben Donovan negotiated a very, very good "cooperating witness" deal with the FBI. It is also realistic that Fisk would be removed from the prison where he’d been shanked (by an inmate he'd paid off, as is later revealed), but moving him to house arrest in a Manhattan penthouse is out of the ordinary. The normal move would be to transfer him to another prison or to some kind of protective custody. That said, the later revelation that many of the FBI officials involved are on Fisk's payroll explains away why any red flags that should've come up got ignored.
- Fisk is a federal inmate. When he is moved to the penthouse of the Presidential Hotel, he is still being treated as such (at least at first). In real life, his guards probably would have been from the Federal Bureau of Prisons, not the FBI.
- There is a lot of confusion about state vs. federal jurisdiction throughout season 3 as it pertains to Fisk's crimes. Early episodes establish that Fisk was prosecuted under the Racketeer Influenced and Corrupt Organizations Act, and is in federal custody. Yet when Nadeem proposes moving Fisk to house arrest, he and SAC Tammy Hattley meet with District Attorney Blake Tower and the NYPD Commissioner. As local law enforcement officials, they wouldn't be involved in the change in Fisk's status. While it is possible that Hattley and Nadeem are simply conducting a courtesy meeting to inform Tower and the NYPD of what the FBI was doing (considering the sorts of crimes that Fisk committed in season 1), they seem to be seeking the locals' approval for Fisk to be moved.
Then, in later episodes, Tower insists that Fisk is “solely” under federal jurisdiction. Thing is, as Foggy points out, Fisk committed crimes before and after his time in prison that he could be prosecuted for under state law. Double jeopardy simply means that Tower wouldn't be able to prosecute Fisk under state law covered by the RICO case; he could still prosecute Fisk for other crimes, such as the murders of Detective Blake and those other cops who were killed on his orders. In order to ensure that Fisk gets convicted of something, it's likely that in real life, the feds would've deferred to Reyes (the District Attorney at the time of Fisk's original arrest) and let her prosecute Fisk for the more serious crimes, and then taken their turn at trying him for the RICO case.
- In "Blindsided", Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like the general visitation room, with many other inmates and visitors present. An attorney-client prison visit would likely take place in a private room where they can't be overheard by others (like the one where we see Fisk meet with Ray Nadeem in the first episode of the season). However, this is a necessary break from reality, because everything that subsequently happens in the prison, including the ten-minute continuous take fight scene, probably wouldn't have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. While it's rare for defense lawyers to get a client's conviction reversed entirely, it is not uncommon for them to obtain some other benefits for the client, such as getting him a reduced sentence.
- In "The Perfect Game", the FBI conduct a search of Matt's apartment based on information supplied by Fisk that Matt is a criminal. Nadeem can be given the benefit of the doubt, as it is inferred that he did get a search warrant before they raided the apartment. He also clearly did some investigation beforehand, seeing as he has Wesley's Confederated Global check from the Healy case in season 1 that he shows to Karen when he questions her. But he should have been way more skeptical and questioned why Fisk was targeting one of the lawyers who helped send him to prison.
Where the search becomes problematic is that at this point in time, Matt's apartment isn't just his home, it's also his law office, as we saw him working on the Aaron James case here in The Defenders. During the search of the apartment, the FBI agents appear to search his desk and the surrounding area. They know Matt is a lawyer, and once it was determined that his apartment is doubling as his office, they should have taken the appropriate steps to ensure that attorney-client privilege in Matt's cases is preserved. Fortunately, it's likely that at least most of the documents in Matt’s files are in Braille, which most of the FBI agents probably can't read anyway. - When Nadeem crashes Foggy's campaign event, he tries to get Foggy to snitch on Matt by suggesting (among other things) that he and Karen are accessories to Matt's crimes or, if they're lucky, merely aiders and abetters. He says it in a way that implies that being an accessory to a crime is more culpable than aiding and abetting is, when it's not. Under the federal criminal statutes defining "parties to a crime", statutes that Nadeem should be familiar with, an "accessory" is "an accessory after the fact", meaning someone who assists the perpetrator of a crime after its commission. Someone who "aids and abets" is someone who assists, induces or otherwise participates in the commission of the crime. Someone who aids and abets a criminal receives the same punishment as the principal (the actual perpetrator). The punishment for being an accessory after the fact is half of whatever the punishment is for the principal. So Nadeem got it backwards.
- In "Upstairs/Downstairs", Matt and Nadeem do an illegal search of Dex's apartment looking for evidence tying him to his attack on the New York Bulletin, such as the Daredevil suit that Melvin Potter constructed for Dex. Before they break in, Nadeem explains his plan to circumvent the requirement for a search warrant by leaving any evidence they find in place, then setting off the fire alarm on the way out. Matt agrees to it, but he should have known better. Under the “exigent circumstances” exception to search warrant requirements, police are allowed to enter a burning building to search for and rescue people and attempt to put out the fire (not that they should, since they don't have proper firefighting gear). However, the scope of such a search is limited by the nature of the emergency that justifies the warrantless entry. In the case of a fire, they can search for people in the burning building to the best of their ability. They can also see whatever is in "plain view" (well, Ray can, in this case). This exception does not give them carte blanche to conduct a full search for evidence of criminal activity. For that, they still need a warrant. And if it was discovered that Matt and Nadeem set off a false fire alarm to circumvent the search warrant requirement, any evidence they found would be suppressed. All things considered, it's a good thing they didn't carry out this plan.
- In "Reunion", Fisk's conviction is officially reversed. The court mentioned by Donovan in his press conference statement is the right court; the U.S. Court of Appeals for the Second Circuitnote is the appellate court that would have heard Fisk's appeal. And for the most part, the timeline lines up: season 3 takes place about two years after Fisk's arrest at the end of season 1. This is probably the minimum amount of time needed for his case to make its way through the trial and appellate courts. A case like this could easily take even longer (note that at the end of season 1, Foggy stated correctly that it would take at least a year to bring Fisk to trial). Then there's the reversal itself. Contrary to popular belief, appellate courts do not go looking for reasons to reverse criminal convictions. The vast majority of criminal convictions are affirmed (upheld) on appeal. In his statement, Donovan does not mention the grounds for the reversal, making it unclear whether it was legit. Of course, there's a good chance it wasn't, because this is Wilson Fisk we're talking about. The government's decision not to re-try Fisk is interesting. With a few exceptions (for example, when a conviction is reversed for tainted or insufficient evidence), a criminal defendant can be re-tried after a reversal on appeal. The only thing Donovan says about this is that the government has seen the error of its ways, so does not see it as worth it. But again, since this is Fisk, it’s entirely possible there was a fix going on.
- Nadeem's sit-down with Tower in "One Last Shot", after he hires Nelson & Murdock as his counsel, is known as a "proffer." This would likely be the subject of lengthy negotiations and a written agreement, as would Nadeem's cooperation afterwards, so what we see is largely condensed for the purposes of time. That same day, though, he gives testimony before a grand jury. In real life, Tower probably would not be having Nadeem testify right after the proffer is made, much less ask for Fisk to be indicted. Nadeem coming forward would just be the first step in a major investigation, and the indictment would be a long ways off.
- After Nadeem is killed, it's discovered that he recorded a video confession prior to his death documenting all the crimes Fisk has committed since getting out of prison. Such a confession would normally be dismissed as hearsay, but Foggy correctly states there is a "dying declaration" exception. His explanation of the rationale for the exception is also basically correct: someone who is about to meet their maker is less likely to lie. However, Nadeem's confession does not qualify as a dying declaration under either federal or New York rules, which are similar.
- First off, the declarant has to be dying (the New York rule says “in extremis”) and know that their death is imminent at the time the statement is made. Nadeem's belief that he is going to be murdered in the near future does not satisfy this requirement for a dying declaration.
- Second, the exception is limited to statements about the "cause and circumstances" of the declarant's death. Nadeem's video does not include such statements.
- Additionally, under the federal rule, the exception applies only in a prosecution for homicide or in a civil case; under the New York rule, the exception applies only in a prosecution for homicide. (Admittedly, this criteria is sort of met in both cases, since Nadeem does implicate Fisk in multiple murders; but the murders are just part of a criminal conspiracy Fisk is running)
- And even if the video does not qualify as a dying declaration, parts of it may be admissible under other exceptions to the hearsay rule, meaning Karen is right in saying that while the video may not be admissible in court as a whole, releasing it on the Internet and to the press is legally doable and it would make Fisk’s life hell.
- Marci Stahl convinces Foggy that he should run against Blake Tower as a write-in District Attorney candidate to bring Tower's inactivity in prosecuting Fisk to public light. Yet, while campaigning, Foggy still has enough time to investigate Fisk and be lawyer for Karen and for Matt at times. In real life, campaigning is a 24/7 job. Foggy wouldn’t have had time for anything else.note In addition, while Foggy's intention was "make myself so public that I'm untouchable to Fisk," in real life, it would have exposed him way too much. Sure it does get to a point that Fisk tries to blackmail Foggy using leverage over his brother and parents, but realistically, Fisk would've gotten to him a lot sooner due to the amount of scrutiny Foggy would be under from the press. On top of that, there are so many other details of the story arc that are just incompatible with campaigning. For instance, Marci and Foggy probably would have had to get married immediately as soon as Foggy threw his hat in the ring. Also, if Foggy won, Marci would have no choice but to quit her job at Jeri Hogarth & Associates to avoid any potential conflicts of interest.
- In the antepenultimate episode of season 1, Karen shoots and kills James Wesley after he threatens her friends and family. When Karen tells Foggy about this in season 3, Foggy tells her it was self-defense... Not so fast. The New York jury instruction on the subject talks about defending yourself from someone who was using or was about to use deadly physical force against you. Wesley wasn't using physical force on Karen, and he specifically told her he was not going to kill her now, that she wouldn’t be the first to die. Wesley then went on to threaten to kill Ben, Foggy, Matt, and her family at some future time, but he was not using or about to use physical force against them; the other threatened parties weren't even present in the room. This might make it difficult for Karen to argue that she was acting in defense of the people Wesley named.
- Another complicating factor is that while Wesley might've been disabled by Karen's first shot, she then proceeded to empty the remaining six bullets into him. There's also a pause between the first shot and the last six. The first shot might have been justified, because Wesley had kidnapped Karen and she arguably could be viewed as having shot him in order to escape from him. If he was no longer a threat after that point, those additional shots (all of which look fatal by themselves) might not be considered justified by self-defense or defense of others. Additionally, in season 3, Karen tells Foggy and Fisk that she wanted Wesley dead. She also tells Foggy she could have called the cops, once she got the gun; in other words, she didn't have to shoot him (though one could argue that that wasn't an option since Fisk was paying off cops on the force, and they would've made sure Karen didn't walk out of the precinct alive). Fortunately, her statements to Foggy are protected by privilege, and we can only hope that the microphones in Fisk's penthouse did not pick up what she said to him about Wesley.
