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Artistic License – Law
aka: Artistic Licence Law
Strong Bad: This is a sub-poe-eena! I summons Exhibit 4-B to my chambers!
: Sustained! (hits self in face with gavel)
This is a listing of liberties taken with how law is presented.
Frequently an Acceptable Break From Reality
in that real litigation takes months, not minutes, and almost none of it happens in court. But watching lawyers read mountains of documents and write briefs isn't something anyone really wants to do. Lawyers don't, because if you're going to watch someone do legal work you may as well do it yourself (and get paid), and laymen audiences don't because it's boring as hell
. So while most depictions of legal procedures outside of literature have very little to do with the way law is actually practiced, most people are okay with this, because real legal procedures tend to be No Fun At All
Note that laws vary across different countries and jurisdictions. What may be therefore seen as an example of this by people from one region may actually be valid legal procedure in another, and vice versa. (This can also be noted for historical works- most legal systems have been fine-tuned over centuries; go back 200 years and chances are court procedures are comparatively sloppy.) Also note that as with all Acceptable Breaks from Reality
, this can get out of hand, particularly when it's the substance of the law, not the procedure, that the the creators are screwing up.
NOTE: This should not be listed on a work's page as a trope.
- Bail Equals Freedom: Bail is treated as an easy way to skip a future trial and possible sentencing. In real life, it's a guarantee that the accused will show up for trial and those demonstrated to be likely to flee to the court are denied bail.
- Chalk Outline: They do not do that in real life. It actually does contaminate the area and makes it more difficult for the investigators.
- Conviction by Contradiction: While a legal case has to hold together logically to some extent, "logic dictates that this must be what happened" is not sufficient for a conviction. Not to mention, most crimes aren't simple logic puzzles anyways - most "solve it yourself" mysteries are actually presented this way because the average person does not have the skills of a trained detective or inspector.
- Conviction by Counterfactual Clue: Even worse, because you can even point out that you're convicted for a wrong reason.
- In civil cases, which have a lower burden of proof, this can be legitimate. It's known as res ipsa loquitur (The thing speaks for itself) and it basically amounts to "We can't prove the specific sequence of events that led to the defendant wronging us, but there is no possible innocent explanation." The classic case—which established the principle—is when a guy gets hit by a barrel of flour that rolled out of a factory window: the English judge who came up with the phrase reasoned that no matter why the barrel rolled out of the window onto someone's head, barrels aren't supposed to roll out of factory windows. Today, it's more likely to be a post-surgery X-ray showing a towel in the patient's body cavity. There's no legitimate reason for doing that, so whatever the explanation was, they're still liable.
- It's important to note that in rare cases, the defendant can come up with a reasonable, innocent explanation; it's just that the burden is shifted to them to prove it (rather than the other way 'round).
- Also, personal injury torts are liable to result in punitive damages if malice can be established. Thus, it is in the defendant's best interest to explain all evidence in the least damning way, even if there is no innocent explanation.
- Courtroom Antic: Many of these would result in the lawyer being warned, and possibly removed from the case or punished (with fines or brief jail stays) for contempt of court. Major antics could cause the judge to declare a mistrial, and a consistently ill-behaved lawyer would risk disbarment (though most bars will put up with a lot of antics rather than go that far). In summary, it's usually up to the judge to keep the courtroom under control, and each judge has different levels of tolerance. Smart lawyers know exactly how far they can go with a particular judge. Pro se litigants, meanwhile, are usually given a little more leeway because they might not know what constitutes proper courtroom behavior, but going too far is likely to get them hit with contempt charges. Habitually doing this can and often will help get you branded as a "vexatious litigant".
- Disregard That Statement: Trials, and judges, are complicated. There's no question that there are certain things lawyers aren't supposed to say or lawyers aren't supposed to ask (and a witness not answer), and, if a lawyer does so, the proper response is for the judge to invoke the trope. Actual practice is complex. On one hand, questions like these are part of the tactical arsenal of any lawyer; on the other, courts do have the power to sanction a lawyer who does this excessively or blatantly, not to mention the risk of creating something appeal-worthy. As a rule, however, the sort of things that gets said in fiction would get most lawyers in a world of hurt.
- Eagleland Osmosis: Not purely a law trope, but it's one of the worst-affected professions. People in every country have seen a lot of American Law Procedurals, and often assume the law works similarly when making one set in their own country.
- In the US, protections against self-incrimination render prosecutors unable to use a defendant's silence as evidence under any circumstances (it's actually a lot narrower than that, and really only applies to police questioning while in police custody, e.g. a situation warranting a Miranda warning), and between that and hearsay rules, it's standard legal advice that nothing said to the police can ever help your case. Not so in England and Wales, where the prosecution can and will question why an alibi first presented at trial couldn't have been given at the time of arrest, with obvious implications. Hence "You Do Not Have to Say Anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court."
- It's actually a hell of a lot narrower than that. And very niche and complicated. Anyone interested can see this page, published by the CPS as advice to prosecutors.
- In Scotland the right to remain silent was retained when it was abolished in England & Wales. However, because of the amount of UK TV that is made in England (whether reality or fiction) portraying the English position, a lot of people in Scotland (wrongly) assume it was removed in Scotland too.
- If you speak French, watch the court scene in Gentlemen Prefer Blondes and have a good laugh.
- The Fifth Amendment, to an Australian, is the amendment to the Constitution giving increased rights to aboriginal people, an important constitutional change but not the one practically everybody in Australia who isn't a lawyer thinks it is. And of course in the UK the response would be "What constitution?" the constitution consisting of 900 years of common and statutory law, precedent, and international treaties.
- Canadians don't have a "Fifth Amendment" at all; instead we have the Canada Evidence Act. You cannot refuse to testify in a court of law and under oath; however, if you testify under the protection of the above-named act, the police and the courts cannot use your testimony as evidence against you (although this doesn't mean that the police can't use your testimony as a starting point for an investigation). There's also a similar provision in the Charter.
- Since Canada does not have numbered constitutional amendments, there are two candidates for a "fifth amendment". The first is the British North America Act, 1916 (actually an act of the British Parliament... it's complicated), which allowed the Canadian Parliament to sit for longer than usual in the middle of World War I. The fifth amendment to the Constitution in its modern form (i.e. since patriation in 1982) allowed the requirement for a permanent ferry to Prince Edward Island to be met with a bridge instead. Neither of them would help you in court very much, even if you happen to be a time traveller seeking to build a bridge to Prince Edward Island during World War I.
- The Fifth Amendment to the Irish Constitution doesn't say anything. It deleted text from the previous version and renumbered some articles to account for that. Legally important, but would never come up in a trial.
- In France, you didn't have the right to be legally represented while questioned before 2011! It changed in 2011 in order to respect the European legislation.
- In Mexico, this is a royal pain in the head for both lawyers and lawmakers there, due of the heavy influence of American culture in Mexican society. American-style court processes were recently included in the legal code of many Mexican states, and many judges and lawyers had to explain to their clients that Mexico uses Napoleonic and Roman law and NOT the American common law.
- Interestingly, in some parts of the UK such as Scotland, American cases can be cited if they are deemed relevant to the case and the law is similar. This is because Scotland has a population of 5 million, whilst the USA has a population of 315 million, and so cases come up far more often.
- We should note on this front that American courts will consider case law from other parts of the world if relevant to the case, the most famous example of this being Roper v. Simmons, when the majority opinion noted evolving international norms against execution of minors. Although Justice Kennedy caught some flack at the time for doing this, he was really carrying on a very old tradition followed in all countries that use The Common Law; American courts can and do cite other countries' courts, especially other common-law countries' courts, all the time if they find the foreign court's reasoning persuasive. It's rarely necessary in the US because it's so big, but it does happen.
- In any other part of the world: "What's discovery and why is it such a big deal?" Discovery is the procedure in civil cases where the parties dig up information, including from the other side, typically including depositions and requests for documentation; since this is where the evidence is first discovered and presented before the court (for admissibility at trial), many—maybe even most-civil cases end at this stage (either by settlement or by summary judgment). (England and Wales have the same thing, but use the term disclosure.)
- An interesting reversal of this trope occurs when people assume that certain legal facts are true only in the United States. Freedom of speech, for example, is a quintessential American value, but one that is shared by most other developed countries. The specifics vary from country to country, as noted above, but similar protections may be shared among different countries.
- German judges commonly have to remind people not call to them "Euer Ehren" (Your Honor). The correct form of address is "Herr Vorsitzender" (Mr. Chairman). In the same manner, many French mistakenly call judges "Your Honor" instead of "Mr. President".
- In Canada, there is no standard form of address for judges; it varies between provinces and levels of court. Generally, provincial court judges are indeed called "Your Honour", but judges from higher courts (formally called "Justices") should instead be called "Justice", "Mr./Madam Justice", or "My Lord/My Lady", depending on the province in question. At the Supreme Court of Canada, the proper style of address was "My Lord/My Lady" until the McLachlin court (2000 to present), during which Chief Justice Beverly McLachlin has stated her preference for "Justice" or, yes, "Your Honour".note
- Somewhere, a Finnish teacher of social studies is crying, since the kids remember that Finnish courts have them guys, whaddya call them... a jury! Except that it's not a jury, and it has another name.
- You do not have the right to trial by jury in the UK. The prosecution will decide whether you get one or not, though if you are tried without one then the sentence will be more limited.
- Not entirely true, if it's a triable either way offence the magistrates can send a case to a jury trial if they feel their sentencing powers aren't adequate, but the defendant can always opt for a jury trial, as you said, at the risk of a more severe sentence.
- Due to our television viewing being largely American in origin, many Canadians believe that invoking the right to remain silent means the interrogation is over. Under Canadian constitutional law, the suspect does have the right to refuse to answer questions, but the police have the right to keep asking questions. The exception to this is if the suspect asks for a lawyer; the police have to give them the opportunity to consult with one before any further questioning, but once they do, the lawyer doesn't have to be present for any subsequent questioning. This also means the common "Only contact me through my lawyer" demand suspects give in fiction don't apply.
- It's a common misconception in the US as well, due to television. If you are brought to the police station for questioning, there are only two ways it can possibly go: either you are a witness and they need your statement (in which case, there are going to have to be some remarkable circumstances to explain why the police feel they need you in an interview room), or they already have evidence pointing to you as a suspect. The police know that people like to talk and have a number of ways to get someone to talk without going anywhere close to police brutality territory. One of the most common? Coming into the room with a stack of paperwork and doing it in front of the suspect, not saying anything and waiting for them to speak up.
- "Only contact me through my lawyer" does have an actual effect, but only on other lawyers. Lawyers often have ethical rules stating that a lawyer may not contact an opponent who has retained their own lawyer (to stop a lawyer browbeating the other side into confessing, or in a civil case, stop them from coercing concessions etc. from them). This does not apply to police officers.
- Judges in the UK do not have gavels. Judges in British TV shows frequently do.
- Many a German gnashes his teeth every time "Objection!" is used in works produced in Germany. German trials do not work that way: the judge is the one asking the questions, and the attorneys have the right to ask additional questions or add in statements. Most of the proceedings are a discussion of facts, which makes sense, since it's the judge or a panel of judges making the decision in the end. But of course, a thrown-out "Objection!" is much more flashy.
- In one court case in Spain, a witness said "I plead the Fifth Amendment". There is something similar in the Spanish law, but evidently not called the Fifth Amendment.
- And of course, the Plea Bargain. Almost unheard of outside the US which originally conceived of it as "rewarding remorse," but has since dispensed with that fiction and now views it as "thank you for saving us time and money." To be fair, the majority of plea bargains in the US are arranged for the same purpose (i.e., "Can we not do this? My kid has a thing."). Technically, negotiating from a more severe charge to a lesser one and taking some kind of "get out of jail, albeit not free" card is a plea bargain, as you agree to plead guilty to a lesser charge for the "bargain" of ... well, whatever the best of the possible options are (e.g., suspended sentence, probation, driving restrictions, etc.).
- Plea bargains are actually common in Canada too, one of the more infamous examples being Karla Homolka.
- Plea bargains in the US sense do not strictly exist in the British jurisdictions (England and Wales and Scotland)note , but the prosecutor and defence can agree that the exact terms of the charge are inaccurate, and agree on a charge that the accused will plead guilty to. The actual sentence is still up to the judge, but there will be a 'discount' given by the judge for pleading guilty at an early stage.
- Until recently, the French legal system had no concept of plea bargaining. They now exist only for offenses with a maximum sentence less than ten years. In many countries, such as Japan, they are still unknown. There, each case is either brought to trial or dropped. Perhaps unsurprisingly, it has led to accusations that authorities only try the most "sure-thing" cases, with ones that have less chance of success being set aside.
- Empty Cop Threat: Sometimes Truth in Television, in that the threat may be used by the cops or the prosecutor, but they know that it's empty.
- Enhanced Interrogation Techniques: Sometimes Truth in Television, but if you even suggest it in Real Life, be prepared to have your name live on in infamy.
- Frivolous Lawsuit: Sometimes an aversion, although in Real Life most frivolous suits are simply thrown out of court. A lawyer who brings many frivolous suits will quickly run out of money, and a lawyer who places his own interests ahead of his client's wishes could lose his license.
- Lawyers are also required by law to make a reasonable inquiry into the facts of every case before filing, in order to reasonably ensure that it is legitimate; if they fail to do so, they can face sanctions such as fines, countersuits for abuse of process, misusing the court system, disbarment, and being forced to pay the other side's expenses. Courts and judges absolutely hate it when you waste their time. Do so at your extreme peril.
- Additionally, you can bring forth cases as a pro se litigant, but if you're doing it because you got turned down by every lawyer you went to, you are an idiot and you will not like the consequences. Pro se litigants who bring worthless cases will be faced with large fines, contempt of court charges, and, if they keep doing it, can and probably will be declared a "vexatious litigant", which prevents them from filing anything without prior court approval ever again.
- A good portion of companies find it cheaper to just settle before they spend the money to get them thrown out of court. This is a major argument for the United States adopting a "loser pays" system in civil suits, or "the English rule" since it's the law in the UK. On the other hand, a loser pays system makes it very hard to bring a tort suit. While some people may fake slip and falls, plenty of people really were injured.
- In other common law jurisdictions which aren't America, the general rule is that if you lose the case, you pay the other side's expenses. There are exceptions for certain "charity cases" and messy cases where both sides win on certain points.
- In civil suits, the plaintiff (the injured party) can seek damages and court costs, attorney's fees, discovery costs, etc., from the defendant, so that if the plaintiff wins, the loser does, indeed, pay. In civil suits in which John Doe is the plaintiff and Megacorp is the defendant, this is essentially the "loser pays" system. Very few citizens can afford to retain the services of a law firm that could battle a Megacorp and very few law firms can afford to completely eat the costs of litigation with a behemoth, which is one of many reasons that "settling" is the usual outcome.
- Hero Insurance: There is the Good Samaritan Rule in the US which immunizes people who try to help others from suits for accidentally injuring them (for instance by performing CPR) but it doesn't extend nearly so far as portrayed in TV or movies.
- Interestingly, US law is not fond of the need for heroes, and in some instances, the hero can sue. If a risk can reasonably be foreseen (e.g., an unsecured deathtrap that someone can easily step into at the edge of your property), then it can also be foreseen that someone will attempt to save someone from the unsecured deathtrap.
- High-Altitude Interrogation: The one interrogation method that is worse than Jack Bauer Interrogation Technique. Rather than torture someone, this takes awful interrogation to new heights by threatening to kill the potential informer. Unlike in fiction, threatening to kill the mook who has inside knowledge of the Big Bad's activities means that you're willing to follow through with that should they be non-compliant, but unless you have other people in custody that would likely know the same information who you can interrogate, too, you would unsurprisingly be ending any chance of attaining that knowledge as well as any chance of uncovering new leads to follow if he's killed. Dead men can't tell tales, after all. Even if it's meant as an empty threat, the informer might think that his interrogator would kill him, anyway, which would also make him much less willing to cooperate.
- In Real Life, it was done thus: one prisoner was tossed out of the helicopter. The next was then told he'd get it too if he didn't answer questions. It could be effective, as you'd expect. Of course the more frequent use, as in the Argentine Dirty War, was not interrogation but killing: dumping people from helicopter into the Atlantic Ocean.
- Facing death, a perp will tell the cop whatever the cop wants to hear. Some states apply the Common Law, and confession from this is not evidence (as it violates the suspect's rights and is therefore inadmissible). Some states apply the Civil Law and the confession is evidence. Of course, it also depends on whether or not the information revealed is damaging to the person whose rights were violated or to a third party — information obtained against a suspect by violating the rights of someone else can be valid, as the suspect wasn't the one harmed and has no standing (you can't demand evidence be thrown out for violating "your" rights when it wasn't you who was interrogated). Granted, if an interrogation reaches this level of violence, it's quite likely none of this will ever enter a US courtroom, as it's better to bury dirty laundry than face an open trial.
- Hilarity Sues: Sometimes an aversion, as they would be sued in Real Life.
- Hollywood Law
- Inhumanable Alien Rights: Most courts wouldn't be that nice to someone trying to capture and exploit a sentient being, even if there's no specific law against it. On the other hand, the issue hasn't come up yet. That we know of.
- University of the Man in the Pub: the Common Law definition of "Murder most Foul" is "If a man wound a Rational Creature under the Queen's Peace so that he die within a year and a day". Under that definition, if an Alien comes to Britain and commits no crimes and gets murdered, the murderer will be convicted. Other jurisdictions may vary. The "year and a day" rule was abolished in 1996, and 'rational creature' has been defined as a human being. However, given the lack of precedent, it's not absurd to think a decent prosecutor could argue aliens into the definition by analogy.
- In Scotland, the definition of murder is "any wilful act causing the destruction of life, either wickedly intending to kill or being wickedly reckless as to whether the victim lives or dies". So a competent prosecutor could easily secure a conviction on that ground.
- Insanity Defense: In real life, if an insanity defense works, the defendant doesn't walk out of court a free man. He walks out of court in the company of a couple of burly orderlies from a mental institution. Whether he ever walks out of there a free man depends on the psychiatrists and psychologists.
- The insanity defense is also only used in less than 1% of US criminal trials, and successful 25% of the time more or less.
- In the UK, since the ''Criminal Procedure (Insanity and Unfitness to Plead) Act 1991'', the judge now has extended options upon giving the verdict, including an absolute discharge. But living with the social stigma of being legally classed "insane" is another matter.
- 20 states allow juries to find a defendant "guilty but mentally ill," which means that even if the defendant is "cured" of his mental illness he still has to serve time in prison.
- The U.S. Federal Court system works similarly to the above, with sentencing and determination of mental health kept independent. If a standard sentence for bank robbery is, say, five years, a bank robber who is found mentally unstable would be placed in a mental hospital until fit to serve his sentence, at which point he would serve the entire five years.
- For that matter, the time spent in the mental institution is often longer than the normal sentence would be. John Hinkley, for example, would probably be free by now had he been found guilty.
- Nor is a mental institution necessarily more comfortable or safer than prison. Peter Sutcliffe (see below) has been the target of three savage attacks from fellow inmates at Broadmoor, one of which left him blinded in one eye.
- Cracked brings us 7 Bullshit Police Myths Everyone Believes (Thanks to Movies), detailing this trope, among others.
- And the criminally insane are kept separate from people there of their own volition.
- And you cannot just say "I'm insane" — typically, most insane people don't know they're insane; if you say "I did this because I was insane", you'll probably not be believed.
- Ironically, that article itself doesn't quite have it right either, specifically in #5. It's correct that refusing to talk to police isn't obstruction of justice, but that's merely because it doesn't fall under the definition of obstruction of justice, not because of the Fifth Amendment. Invoking the Fifth is the right to remain silent, which only applies if you've already been arrested, read your rights, and have been charged with a crime. In any other situation, refusing to answer police questions very well could be brought up as evidence. In the example given in the article (someone close to the suspect knows where they're hiding but refuses to talk), the Fifth Amendment would not come into play. This is long established law, and was most recently affirmed in the 2013 case Salinas v. Texas, in which a man was informally discussing a crime with police (read: he had not been arrested or charged, and was speaking to them of his own volition) and failed to answer a question that incriminated him in the murder. He was later tried, and the prosecution presented this lack of an answer as evidence of guilt. He was convicted, and the Supreme Court upheld the verdict. Note that this area of law is very complicated and has a lot of seemingly arbitrary distinctions to the untrained eye, which led to a lot of blogs labeling Salinas as the Supreme Court destroying the right to remain silent when in reality it did no such thing.
- When this trope is invoked by non-insane defendants on police procedurals it's often to avoid a potentially worse sentence (like the death penalty). This is generally Truth in Television - the majority of insanity defenses are used in murder cases.
- If you're British then doubtless you will have heard of the secure hospital Broadmoor, specifically for these high-risk patients. Some of its notorious detainees include the 'Yorkshire Ripper' Peter Sutcliffe, and the surviving member of the Moors Murderers Ian Brady. Its warning siren is extremely loud, tested at 10am every Monday morning, and children from Berkshire are told to stay inside if they hear it at any other time.
- The old jury verdict was "Not Guilty by reason of Insanity." Then, a nutter tried to assassinate Queen Victoria, so the verdict was changed to "Guilty but Insane" and changed back in the 1960s. At Sutcliffe's trial, the defence attorney stood up on his hind legs, fixed the Jury with his Beady Eye and offered the Chewbacca Defense, "My client's crimes are so horrific that he must be mad, therefore you have to let him off." They must have accepted, because Sutcliffe is in Broadmoor, and not a prison.
- Or just because defendants think that insane asylums are easier to break out of/be broken out of than prisons.
- Many of the mistakes may be caused by confusion with a similar, but distinct, defense called "diminished capacity", which forces the prosecution to prove that the defendant was fully capable of understanding his actions at the time of the crime and allows the defendant to go free if successful (since it results in a regular "not guilty" verdict). It's typically more popular than the insanity defense for precisely those reasons. This is also why "lesser included charges" are sometimes mentioned.
- "Diminished Capacity" was brought in to avoid cases where people suffering from a fit, involuntary intoxication, sneezing and other issues had to be declared insane by the courts. So if you get roofied and go onto to attack someone there is now an option other than being found to blame, or being found insane.
- This also has to be distinguished from legal competency. If the defendant can't understand what is going on or assist in their defense, in the US they can't be legally tried. This can be the result of a psychiatric disorder, but also a defect such as brain damage or being mentally challenged. If found incompetent to stand trial, they can still be committed if deemed a danger to themselves or others by the court, with all the strictures of that outlined above.
- Interrogation by Vandalism: Damage to property (or threatening to) is illegal anyway, let alone when used to get information.
- Jack Bauer Interrogation Technique: If it's found to have been used in building a case, the prosecution may as well go home. Since the suspect obviously did not waive his/her right against self-incrimination, all the information that resulted from it and everything that it led to will be declared inadmissible. This is called "Fruit of the Poisonous Tree": everything that resulted from a tainted procedure is tainted itself.
- This is not the case in Germany (and, indeed, a great shame since there had been a public and even political discussion about permitting the police to use just a little bit of torture in some cases - this was not even five years ago), where it has been ruled by the highest Court, the Federal Constitutional Court of Germany, that there is NO need to instill a Fruit of the Poisonous Tree policy. However, this seeming Aversion of the trope is then subverted, as the courts have been very clear that a Beweisverwertungsverbot (disallowment of evidence in court) is still instilled if it is necessary from stopping police and other state forces from using unlawful procedures.
- That said, evidence obtained as a result of a Jack Bauer Interrogation Technique can still be introduced at trial if the prosecution can establish that they would have discovered the evidence anyway in the course of a normal police investigation. This principle is known as Inevitable Discovery - if the Smoking Gun was "cleverly" hidden under the suspect's bed, but the police found it faster because of the Jack Bauer technique, it's still permissible. If it's in Locker 32B at the local YMCA - not so much.
- And even with the fruit of the poisonous tree doctrine (which applies to illegal searches also), you have to have standing to complain about a rights violation for that to get you off. In other words, it has to be your rights that the cops violated, not someone else's, for all of this to help you. If they find your drugs in your friend's car in an illegal search, well, you're out of luck. Same thing if they torture your friend and he fingers you (although it would be harder to find an appropriate hearsay exception to get it in than in a confession).
- The standing rule is demonstrated quite well by the U.S. Supreme Court decision in United States v. Payner, the so-called "briefcase caper", where an IRS agent used a variety of subterfuges to get information from a Bahamanian bank official that, if they were shown in a movie or TV show, would probably trigger a lot of entries on this website or at least have the audience going "Yeah, right, they'd never get away with using that in court" (Just go read it). But they did ... when some of the documents led to evidence that an Ohio businessman was cheating on his taxes with an offshore slush find. And the Supreme Court allowed this because the businessman didn't have standing since his rights weren't violated.
- Believe it or not, conservative Supreme Court Justice Antonin Scalia once used Jack Bauer as a relevant background for constitutional jurisprudence As this article shows, Scalia's political opponents were quick to label the comment as foolish.
- Motive Equals Conclusive Evidence: Needless to say, having a reason to commit the crime is not enough evidence to put you in jail nor for the investigators to stop looking for answers (becoming a person of interest in an investigation, at least until the evidence points elsewhere, is what normally should happen).
- Murder Simulators: Often a source of There Should Be a Law moralizing. But there have been many attempts to create such a law, and American Courts have shot them all downnote . Australians and Germans have not been so lucky.
- At least the German youth has not been so lucky. When you reach the age of 18 you can buy any game that has been banned due to violence. Not though if it is banned for other reasons that go against the "Grundgesetz" (German constitution).
- And even then, parents and legal guardians are free to buy such games for their children and allow them to play them. The only limitation is that stores are forbidden to sell or rent games and movies to minors without parental consent. Games and movies that are blacklisted have the added restriction that they may not be advertised or displayed where it can be seen by minors, but since blacklisting almost always occurs after release, the effect is almost irrelevant. Except when you are 15 and your mommy won't buy the game for you.
- Australia on the other hand, actually has banned games from being sold in the country at all. They still don't seem to grasp the idea of people importing the games privately, though.note
- No Badge? No Problem!: In real life, the police take a very dim view of people acting like they have legal authority when their position does not give it.
- Not Proven: Truth in Television. It's not enough for the police and prosecutors to say "well, who else could it have been?" — they have to have a sufficiently strong legal case against a specific person, built on admissible evidence (e.g., forensic evidence) and through witness testimony. Quite a few real-life cases fall under this umbrella; indeed, almost any case that results in a defendant being acquitted and public outcry is almost always a case of "not proven." Considering the very few cases that go to trial (and that public spectacle trials are almost always over major felonies), it makes sense: unless a defendant thinks they have a strong chance of achieving reasonable doubt, there's little reason to go bankrupt paying for a defence attorney. Casey Anthony is arguably the best American example, as jurors stated in post-trial interviews that they were certain she had committed murder but that they did not have sufficient evidence from the prosecution to issue a guilty verdict. (I.e., the case was not proven beyond reasonable doubt; contrary to Anthony's detractors, it was never a case of simply wanting to get the trial over with because they were tired of it.). John Edwards's trial ended with a hung jury for the same reason.
- Scotland even has Not Proven as a possible outcome in jury trials with the options Guilty, Not Proven and Not Guilty.
- The "Scots Verdict," Not Proven, has been translated as "Not Guilty and Don't Do It Again." (It has the same legal effect as an acquittal but perhaps allows the jury to feel better about it.) People have been know to appeal the "not proven" verdict because of the stigma attached.
- Although "Not Guilty and Don't Do It Again" is a purely popular idea. "Not Proven" is exactly the same as not guilty in legal terms, and its continued inclusion is a historical accident.
- Common Law assumes you are Innocent until proven Guilty: you must be proven guilty beyond all reasonable doubt. Civil Law assumes the balance of probabilities; if you probably did it, then, you are liable. Mary, Queen of Scots tried to impose the Civil Law on Scotland and the compromise was the Scots Verdict: "Ye probably done it, but there is nae enough evidence tae hang ye."
- In Germany, you can be found "Not Guilty" and "Not Guilty because of reasonable doubt", meaning it's kind of like second-class acquittal while not in law then at least socially. Sadly, because one won't have an "legal disadvantage" because of it, you are not allowed to appeal.
- This isn't actually correct. The German law stating that there are first- and second-class acquittals has been changed in the 1970s. For the past 40 years, by law, there has been only one type of acquittal in criminal cases, with only the reasons of the verdict stating that the charges could not be proven beyond reasonable doubt (or could not have logically have happened like the prosecution would have it). Most major (and minor) news- and media outlets continue to use first and second-class acquittal when reporting about cases, though.
- The US does allow defendants to plead "no contest" (nolo contendere), or "Without admitting guilt, I do not wish to contest the prosecution's argument," but the judge has to accept the plea. It's often used to dispense with trivial matters (it's a common plea for traffic courts—Dave Barry joked that nolo contendere is actually Latin for "Can I pay by check?"), and where the potential damages in a potential civil suit are more damaging than the criminal sanctions, as it allows the accused to plea bargain while maintaining innocence. This often happens in business-related cases: for instance, you'll often see someone accused of fraud on pretty sound evidence plead no-contest because as bad as the criminal penalties might be, the consequences for his/her company in the civil suit are more far-reaching (and expensive). There is also the related "Alford plea," which is treated as a guilty plea, but otherwise the same as pleading no contest.
- Off on a Technicality: Truth in Television again, less often than a lot of people realize, and more often at the appeal level than in the original trial. At that, most fictional examples of this trope show it happening much more frequently and for reasons that would never stand in a real trial, often involving dismissing evidence through a grand misappropriation of Miranda Rights. In reality, the most common sort of evidence suppressed is drugs, followed by contraband handguns; suppression in drug cases is relatively frequent, but even then it isn't that common.
: In my office I'm considered one of the more successful lawyers when it comes to getting evidence deemed inadmissible. Meaning, I've gotten evidence suppressed. Once.
- Of course, without this we wouldn't be able to have The Punisher or Dexter and their ilk hunt down guilty people that the system can't touch.
- And even if the appeals court finds a technical flaw, usually the remedy is just a new sentencing phase, or a new trial in which the defendant is convicted again anyway. This is exactly what happened in Miranda's case, although he got parole later.
- Appeals courts also don't have to hear an appeal, and will rarely do so unless there is a legal issue. If an appeals court accepts an appeal based on evidence there was almost certainly a gross miscarriage of justice.
- Either that, or it's a response to political pressure regarding a sentence that the public views as either too short or too long or a highly controversial 'guilty' verdict. Usually, they'll dig up some vague technicality in those cases (pretty much any trial can be declared legally unjust if you twist the law enough) that normally wouldn't be grounds for appeal.
- Omnidisciplinary Lawyer: Many TV lawyers seem to do both civil and criminal work, in the latter case both prosecution and defense, etc. In Real Life try asking a wills and estates lawyer about antitrust law or criminal procedure and see how far that goes.
- Actually, there are some lawyers who have civil and criminal practices. Johnnie Cochran brought a lot of civil suits for police brutality in addition to defending people, and most small towns have at least one lawyer or small firm who does DWI cases in the criminal courts and divorces in the civil courts. But yes, it's generally true, as the opening of Michael Clayton suggests, that the guy who handled your company's latest merger is rarely the guy you want representing you in a hit-and-run.
- As a general rule of thumb, in small towns you'll find "country lawyers" who do a little of everything, for typically small stakes. For cases involving large sums of money or very complex, specialized areas of law, you'll want an attorney who specializes in that area, and in fact, most small town lawyers can "tag-team" with a specialized lawyer to take a case to court. It's just like the difference between a general-practice physician and a specialized surgeon.
- In some countries, the legal profession is formally divided into two (e.g. England, Scotland) or three (e.g. France) parts, and any lawyer stays within the profession they started, so small towns need to have one of each type of lawyer, rather than just one lawyer.
- One Phone Call: As long as you have access to legal counsel, you have no legal right to ANY phone calls. If, at the discretion of the custodians, you are permitted access to a phone, it's not necessarily just one call - if you can't reach the person you're trying to reach, you'll be allowed second and subsequent calls. In other words: You have infinite phone calls, as long as you're getting in touch with your lawyer or someone who can find you one. After that, it's all up to the mercy of the cops.
- Not to mention there is no guarantee of privacy when using said phone. Police are free to listen in on the conversation (without your knowledge, of course) and use whatever was said by either party as evidence against you.
- Only Bad Guys Call Their Lawyers: You are always entitled to legal counsel, whether you have committed the crime you are accused of or not. Doing so does not make you guilty by default. (That's sort of the point of having legal counsel, when you think about it...)
- The Perry Mason Method: This one is so discredited that it belongs here. Only a slim percentage of major felonies make it to trial (rather than the defendant securing a plea bargain), and the pre-trial process itself can (and will) take years.
- In order for The Perry Mason Method to work, every single investigator on the case must have overlooked the possibility of the witness being the murderer (and therefore never investigated) and the prosecution, having prepped the witness extensively, never prepared them for this line of questioning, which is a stunning level of incompetence that then needs to be combined with a personality that is both bold enough to testify in a major trial (many people will do everything possible to avoid that kind of attention) and then frightened enough to break down on the stand. As the trope page notes, it has happened in real life, but it's exceptionally rare.
- Moreover, the defence does not have to find the "real" culprit — to establish reasonable doubt, all a competent defence attorney needs to do is weaken the prosecution's case to "not proven" and/or posit another theory of events (which may not involve naming someone else as the real criminal). If the prosecution cannot prove that only the defendant could have entered the victim's house, for example, then the defence doesn't have to prove that someone else did enter, just that it was possible for anyone to, and from there establish reasonable doubt.
- Additionally, while a defence attorney has the right to ask leading questions during cross-examinations (or if a witness has been declared hostile), any competent prosecutor will object to Mason-style questions for any number of valid reasons (e.g., badgering the witness, asked and answered, not answered (the witness has to answer your first question before you can hit them with another), counsel is testifying, inflammatory, assumes facts not in evidence, etc.). Accusing The Witness is rarely a good idea, as the prosecution will vet its witnesses thoroughly; moreover, even if a witness is complicit in the criminal act, that does not mean they cannot testify against the defendant. (Criminal accomplices frequently turn on each other for a reduced sentence.)
- Even if a prosecution's witness is posited as an alternate criminal in court, that isn't tantamount to reasonable doubt unless the physical evidence the jury reviews also strongly suggests that conclusion — which is exactly the problem inherent in this trope: no (scrupulous) prosecutor would ever take a case that heavily relies on a shaky witness to jury. Since both the prosecution and the defence must submit to rules of evidence (which includes the prosecution turning over evidence that exculpates the defendant and no "surprise" witnesses, reports, lab tests, etc.) and witnesses are repeatedly grilled in practise before ever taking the stand, The Perry Mason Method is more likely to get an attorney held in contempt than an acquittal.
- That doesn't stop lawyers from trying, however, and unsuccessfully so. The real-life origin of one Law & Order case centered around the defence's attempt to paint the defendant's mistress (whose boat was used to dispose of a body) as, at a minimum, an accomplice to murder, if not the "actual" murderer. It didn't work. (There was no physical evidence tying her to the crime scene — which was not her home — and she didn't confess on the stand. While the defence attorney's accusations hurt her credibility, the defence didn't prove that the mistress was a party to the crime and create reasonable doubt. Since the prosecution had copious other evidence tying the defendant directly to the murder and the mistress was only one part of the case, Accusing The Witness gained the defence nothing: her testimony may have been suspicious, but the facts in evidence did not support the theory that she was the murderer.)
- For the non-violent version of this trope, consider the difficulties the RIAA has faced in file-sharing cases: if multiple people have access to a computer (e.g., dorm roommates), that is sufficient to cause doubt as to which person or persons is responsible, even if the computer is the property of only one person (e.g., the password was known or there was no password). Since no one can prove what actually happened and no one wants a trial, these cases usually end with all parties paying a greatly reduced fine to end the hassle.
- Plea Bargain: The big difference between plea bargains in media and plea bargains in real life is that in real life, the prosecutors will generally offer a plea bargain only before the case goes to trial. If the defendant agrees to plead guilty, he waives his right to a trial, saving the state time and money in exchange for a reduced sentence. If he decides to plead not guilty and go for a trial, there is no point in bargaining further. In reality, most criminal cases are plea-bargained and never reach the trial stage. (This is not the same as a civil trial, in which a settlement can be negotiated any time in the trial process.)
- In some (but not all) jurisdictions, the plea bargain can occur at any point before a verdict is rendered. Of course, unless the prosecutor thinks you're actually winning the case, the deal won't be nearly as good. The prosecutor does, however, still have a vested interest in keeping time in court to a minimum.
- The Plea Bargain is a form of Eagleland Osmosis. In civil law nations it's simply not possible. Even if you plead guilty they do a full trial to establish how much time you get. In the other Common Law nations, it's officially frowned on and officially doesn't happen. Unofficially it happens all the time, but it's considered very impolite to suggest it. In the United States, though, it's the dominant form of how criminal cases are resolved, so that less than 3% of cases go to trial. It serves a huge purpose in making the justice system not drown in it's own weight and encourages conspirators to break for a lesser sentence. This has been a huge issue at international tribunals. Depending on conditions in the facility a suspect is held in pre-trial, it could also be seen as coercing a confession.
- We should note that in the US, a disproportionate number of criminal cases are for the possession of contraband—i.e. drugs, followed by illegally-obtained guns. In such cases, a trial is a positively gigantic waste of everybody's time and resources, since once the judge rules that the evidence of the contraband is admissible, there's really no doubt how the case will end up.
- Actually, at least in Switzerland, it is now allowed for crimes and misdemeanors with a maximum punishment of 5 years in prison. Constructed for those cases where a Big Business is interested in getting over with it and the prosecution doesn't have a PhD in economics to easily prove fraud or similar, it nevertheless allows pretty screwed tactics and movements.
- It's an option in France for cases with a possible sentence under 10 years, but over that they must have a full trial.
- In Canada, plea bargains are used upwards of 90% of the time, both to save the state time and money and to prevent a backlog of cases.
- Read the Fine Print: Contracts will include all manner of outrageous stipulations hidden in the clauses. However, including clauses in an Unreadable Disclaimer and/or that are too outrageous are illegal under contract law. For that matter, just because something is written down and signed by two parties does not automatically make it a contract.
- Usually it's more a question of the unreasonable disclaimers or unreasonable terms being unenforceable rather than illegal (which, depending on the circumstances and the jurisdiction, may render the whole contract null and void or only the offending provision). Generally the court's willingness and ability to strike out terms of a contract will depend on the parties - large businesses who had their own legal departments and/or outside counsel review the document normally will be bound by the small print. The law tends to be more sympathetic in the case of consumer contracts.
- The additional leniency when it comes to consumer contracts has been formalized in a very simple way in Swedish law: there are two laws, both defining what the applicable kind of contract is, and then stating a number of rights when it comes to contracts. The rights supersedes the contract when it comes to consumer contracts, while the contract supersedes the rights when it comes to other contracts.
- Typically, if there is any ambiguity on a certain point of the contract and it is contested, the ruling will usually go against the party who drafted the contract to begin with. This is done in an effort to avoid encouraging excessive amounts of fine print. Thus, it is usually in the drafter's best interests to make the language as clear as possible. Now, if the other party doesn't understand what's clearly written, that's their problem.
- Contract Law is almost a religion among lawyers and judges. The Number One Rule is, "If you signed it, you understood it and agreed with it". Otherwise do not sign it. While technically, the judge does have the power to void an unfair contract, the definition of "unfair" in contract law means extremely unfair and pertains to situations involving grossly disproportionate power differences, abusive terms, and deliberately obtuse language designed to stymie and confuse the person signing, who is typically uneducated and/or desperate (as most unconscionable contracts specifically target vulnerable individuals). "Unfair" or "unconscionable" both have high thresholds; those terms get thrown around a whole lot whenever someone is trying to escape a bad contract, and as a result, you generally have to do a lot to prove that the contract in question truly is abusive instead of just a raw deal unless it's so flagrantly unfair that anyone taking a quick glance would be horrified by the terms, but this is very rare. Judges hate to break contracts and will not do it 99.999% of the time. Again, the law says if you signed it, then you understood and agreed with it all. Never sign anything you don't understand and agree with because you will be bound by it.
- Depends on the country. In most real estate transactions in China, the contract isn't the final word, and people routinely invoke "changed circumstance" to get a judge to rewrite the contract.
- Unless you can't read the language the contract was written in. Then you might be able to get away with signing it if its contents were not explained to you correctly.
- Not in Britain. Illiteracy is no defence if the terms have been explained to you.
- In Australia, even if you can't read the language, and the terms have not been explained, you will still be bounded unless it is clear (or ought to be clear) to the other party that you can't read it. Interestingly, under the same principle (Unconscionable Dealing), you can't avoid a contract if your mind was not sound at the time of the contract (you may have been drunk, your med was not working, or your evil side was acting up) but the other party was not aware of it. Of course, whether a party was aware of it is decided objectively, so chances are, if the terms are weird and obviously won't be agreed on by a sane person, then it ought to be clear to the other party that you're not in your right mind.
- Contracts of adhesion ("standard" or "boilerplate" contracts where the terms are set exclusively by one party and the other party's choices basically amount to "take it or leave it") are normally subject to greater scrutiny, and in the case of ambiguity courts tend to rule against the drafting party. There's at least a possibility that some portions of a click-through contract might be declared unenforceable, especially if the terms of the contract weren't known at the time of purchase.
- In Canada, there is legislation mandating the minimum size of the typeface used for a document to be a legal contract. Trying to get too-fine-print past someone will therefore likely fail, or at least not hold up in court.
- In Sweden, it's illegal to make any kind of business deal that's clearly meant to only benefit one of the parties involved.
- And, of course - in Australia, at least - this only applies where a contract has actually been signed. When it comes to the vast majority of contracts which aren't signed, judges are much more willing to break or alter the contract, and in cases where the other party didn't even see the terms of the contract until after they had entered into it (say, buying a ticket with the terms written on the back) it is not at all uncommon for the contract to be rendered void.
- It should be duly noted that Australian law generally assumes that a person is aware of the existence of terms and conditions written on a ticket, and he will be legally bound by those terms, unless he can prove to the court that such a term is unusually onerous (very, very unfair and not usually expected on a ticket) or that he was not able to have a reasonable opportunity to learn of the terms and conditions before buying the ticket (which is difficult to prove, as it is generally assumed that it is the duty of the buyer of the ticket to check the terms and conditions of the ticket before buying (by looking them up on the Internet or asking for them from the supplier of the ticket)).
- Also, be aware that when you entered a contract, it is generally assumed that you are aware of the existence of terms and conditions and that if it isn't made available to you - you must ask for it. If the other party can prove that you had a reasonable opportunity to learn of exactly what the terms are before entering the contract and you chose to enter the contract without trying to find out the terms and conditions first, you're effectively screwed.
- From 1/1/11, Australia's introduced the Australian Consumer Law, which prevents standard form contract (generally, contracts that are not open to negotiation) for consumers (typically people who buy goods for personal or household use) to have disclaimers against low quality, unsuitability or liability caused by the products, unless it is reasonably necessary to protect the interest of the supplier. However, care must be taken to ensure that the person you're dealing with is a supplier (so private selling or shady traders won't be affected by the law).
- In Germany, there's a special law for general terms and conditions of contracts that are predefined by the seller or service provider and not negotiable. The most important part of the law is that anything that would be "unexpected" to find in such a contract is automatically null and void and replaced by the standard terms for business when nothing else is negotiated. These standard terms are usually much more beneficial for the customer than what the business would be legally allowed to put into a contract. This encourages business owners to very carefully check their general terms and conditions because if any mistake is found, it's them who will get screwed.
- Germany being a jurisdiction that generally does not need huge contracts that state many "obvious" things certainly plays a role in that. There's default stances on virtually anything directly in law, so a contract stating "A bought B's Fiat Punto as inspected on 2014-01-23 for 5.000 €" with both signatures would be an entirely valid, and, in many cases, reasonable contract to sell your car. Also, the above mentioned law about general terms and conditions is only invoked for B 2 C deals.
- Also, businesses very carefully checking their terms and conditions was the original cause for the terms and condition law - however, most small businesses that don't regularly check everything over with a lawyer, still don't do that and remain largely ignorant of the law. Some consumers used that in the past and use it nowadays to sweeten the deal afterwards. And even the big businesses with their own legal division usually don't get through any given year without some clause in their terms and conditions declared void by a judge.
- In many places there are laws decreeing a minimum font size for the fine print to guarantee that people can always find all the clauses in a contract, even if they don't understand them.
- In an inversion of the trope, in some US states, especially Western states which went through a period where it may not have even been possible to create a notarized formal contract without a trip to a city several hundred miles away, any witnessed verbal handshake agreement or written exchange involving the agreed exchange of money, goods, or services between individuals is considered legally binding, and must be fulfilled to the spirit of the agreement as understood by all parties and witnesses. If such an agreement is breached, so long as reliable neutral witnesses; a clear, mutually agreed upon description of the agreement; and/or written evidence can be produced to substantiate the agreement, a full civil or even criminal fraud trial can be initiated on the basis of a common-law contract.
- Reading Your Rights: On TV always done when someone is arrested. In Real Life it only needs to be done before interrogating someone or if the police hope to use what they blurt out after arrest against them (which means it is usually done at the time of arrest, if the crime is a serious one, since the police want to be able to use anything the suspect may say during the drive to the station.) The big failure in media, though, is when the police continue talking to the suspect after he's asked for his lawyer, but before the lawyer is present. That's an excellent way to get evidence thrown out. The police will also read the rights off of a card, never from memory, nor will they stop if the suspect interrupts them.
- In addition, there is also a much longer version of the Miranda Warning which is read at hearings (usually concerning assignment of trial or appearance dates for defendants), which is never done in fiction. This longer version includes other rights afforded to criminals who might have special needs, such as the right to contact your embassy in case you are a visiting citizen of a foreign country.
- Many jurisdictions actually do "read them their rights" as soon as possible. That way, if the guy says something incriminating in the police car, it's admissible evidence. However, if the police are just hauling you off for drunk and disorderly, or similar crimes, they don't bother.
- Sometimes, in media, a careless cop "blows the arrest" by not reading the suspect his/her rights at the time of arrest and the suspect has to be released. In real life, the "Miranda Warning" is not necessary to a lawful arrest, only to making the suspect's post-arrest statements admissible in court. In many if not most cases, a suspect can be convicted on other evidence than statements out of his/her own mouth.
- It might be worth noting that in some jurisdictions an arrest can be rendered unlawful by a constable's incompetence. For example, in the UK, anyone making an arrest must inform the arrestee that a) they are under arrest and b) what they are under arrest for. If either of these are not met, then the person must be released, and is entitled to use reasonable force to escape. However, nothing is stopping the police from re-arresting someone who was released/fought their way out of custody, as long as they follow the rules.
- This is one of the few law tropes Law & Order gets right every time they invoke it.
- Another bit that occasionally gets ignored is that people arrested by private citizens (including Security Guards and Officers) do not have to be read their Miranda rights, and statements made before being turned over to police custody are fully incriminating.
- Most works seem unaware that a Citizen's Arrest is even a thing, leading to several plot lines in various media where a character is labeled a vigilante for actions that are completely legal.
- Also of note is that the right to silence is limited to that. It doesn't get you out of providing fingerprints, blood, hair, or DNA in compliance with a legitimate court order.
- But it does get you out of supplying some of them without a court order.
- There is, in addition to the Miranda warning, a similar admonition to police or state/local level public employees, called a Garrity warning. This basically boils down to "We can ask you anything we want, and compel you to answer truthfully, but any compelled statement cannot be used against you in a criminal case." This means that incidences of police misconduct have to be divided into criminal (where Miranda applies, and the risk is a fine or jail time) and administrative (where it doesn't, and the risk is getting fired) proceedings. When Eliot Stabler or another Cowboy Cop asks to speak to a union rep, they are effectively invoking Garrity and refusing to give a statement unless waived of criminal liability. (Federal employees have Kalkines warnings, which acts the same).
- Spousal Privilege: Fictional uses of this tend to be considerably broader than is justified.
- Stop or I Will Shoot!: Cops in fiction routinely threaten and use lethal force against suspects that nobody at the moment would reasonably believe posed any danger to life or limb.
- And most (if not all nowadays) department specifically prohibit threatening to shoot or firing warning shots.
- Shooting a suspect in the back when they try to flee the cops is generally not considered best practice in the real life police forces.
- There Is No Higher Court: Lots of cases are appealed at least one step up the chain. (See Off on a Technicality.) Very few get to either State or Federal Supreme Court level, though.
- The U.S. Supreme Court's case load leans toward cases that involve constitutional issues and cases that involve a "split among the circuits", or matters of interpretation of statutes on which lower courts have disagreed; cases involving administrative law (defining the extent of the powers and responsibilities of regulatory agencies) are particularly common.note It's egregiously wrong in state courts, though. Most state high courts will do more work on state common law (which governs in whole or in part in most cases in the US), and statutory, administrative, procedural, or other issues than they ever do on constitutional issues.
- Then why, in Law and Order, are criminal trials held in the Supreme Court? Because the Supreme Court of New York is actually the lowest level of criminal court, with two further layers of appeal courts above it. It has the Supreme Court at the bottom, then the Appellate Division, then the Court of Appeals at the top. One might think the framers of the state constitution got the org chart upside down, or that that the courts in the 19th century were insanely corrupt so to defang the Supreme Court, they just made them the lowest court.
- This nomenclature is not unique to New York (the court systems in New Jersey, Maryland, and Virginia all used to have similar nomenclaturenote and, as noted below, Australia still does to some degree). It was how common-law courts in British colonies were organized and named until a certain point in the 19th century after said courts were created. In those systems the Supreme Court is "supreme" in that it's the highest level at which a matter of fact can be decided; the Appellate Division and the Court of Appeals above the Supreme Court are limited to having final say on matters of law before them. The Appellate Division is actually that part of the Supreme Court that has appellate jurisdiction, as the Supreme Court also has original jurisdiction over things like divorces and certain major crimes (i.e., cases like those are heard first there).
- Though in the Law and Order episode "Vaya con Dios," Jack McCoy argued a case before the U.S. Supreme Court. Oddly, the episode ended just as the clerk was walking up to hand them a copy of the decision.
- It's lots of fun once you get to Commonwealth jurisdictions. Australia's states have the New York system of ascending tribunals with the Supreme Court not quite at the top, which is why Law and Order makes complete sense to us- Magistrates, District, Supreme, Court of Appeal/Criminal Appeal. We also have the option of appealing to the Federal High Court of Australia, which is the equivalent to the United States Supreme Court. We can skip the Court of Appeal if we want to and don't need a federal question to do so.
- As well, Australia's highest Court, the High Court, is named after the High Court of Justice of England and Wales (Which ironically consists of about 3 different courts), which is equivalent to the New York State Supreme Court (There's the Court of Appeals on top, and then the House of Lords, now the Supreme Court of the United Kingdom. I like the old name.) The English High Court doesn't deal with Criminal cases; the Crown Court does. The Australian High Court can and does deal with Criminal cases routinely. The Scottish High Court deals only with criminal cases, and any appeal is to the High Court again but with more judges sitting; there is no appeal to the Supreme Court except for claims of human rights abuses. Has your mind exploded yet?
- And that doesn't count appeals to the European Court of Human Rights. It was much easier in the 1920s when the highest court was Lords.
- And even then, at least in the United Kingdom, the European Court of Human Rights finding a law incompatible with the Charter doesn't invalidate it; it then falls on Parliament to repeal it. Parliament can refuse to repeal it (like they did for voting rights for prisoners; Parliament has a long tradition of being the supreme legislative authority), but the European Court doesn't look too kindly on that.
- And don't get me started on Brazil, possibly the biggest aversion to this trope ever. Due to the lack, until very recently, of Erga Omnesnote in supreme court decisions in Brazil, any judgment or 'precedent' made by the court was valid only for that specific case only! So virtually anyone who had the money and patience could and would keep making appeals all the way up to the supreme court. And why would they want to do that, you might ask? Simple: if you're not on trial for a violent crime or haven't been convicted of a previous one, you don't have to go to jail until your final appeal... which can take over a decade. Sometimes, allowing for enough time to pass and the statute of limitations to kick in. No wonder the court judges over 100.000 cases per annum!
- We All Live in Common Law Jurisdictions: It is extremely common to see media assume trials are the same everywhere, and it is often the case that trials in inquisitorial jurisdictions (i.e, anywhere with Civilian Law or the Napoleonic Code) are depicted on television as being exactly the same as adversarial trials, just with a different flag on the wall. This is all kinds of wrong.
- Wrongful Accusation Insurance: In Real Life, there are two things wrong with this scenario:
- If someone has been successfully framed for a serious crime, they most likely aren't free to investigate it. They're in jail.
- To the legal system, why you committed a crime is utterly irrelevant. Having a good reason doesn't get you any points unless, say, it gets murder knocked down to involuntary manslaughter.
- The reading of the will. It may make for good drama, but it doesn't happen in real life. What really happens is that the executor, spouse, or other next of kin will contact the decedent's lawyer to see about the will. The lawyer will then meet with the executor, and take the will through probate court. In most cases, unless you are the executor, or are a beneficiary who specifically demands that the lawyer show you the will, you will probably never see it. You will simply receive a check, certificate of title, or whatever your inheritance is, be told that it is your inheritance, and be asked to sign a receipt (see Baby Boom for a realistic example... more or less).
- The will actually also doesn't mean a great deal. It's the Probate that's granted by a Court after a person's death which is important (it's not actually the dead person who gives the property out- the courts do that through the Probate.) Sure, the Court will usually take the will's instructions into account when cutting its probate orders, but if the will is contested, the will may be entirely ignored.
- Additionally, you will probably be told you are disinherited for "reasons you are aware of." Putting in their actual reasons would give you an angle to contest it: you could claim that the reason given was false, and they aren't around to defend it.
- In most European/civilian law jurisdictions there is nothing like an Executor to a will. Moreover, an Estate (everything a dead person left behind) isn't even a legal entity. In Germany, by law, you and your brothers and sisters own your parents' earthly belongings, beginning the very second the last of them are declared dead.
- No motive - in real life, most homicide detectives consider "motive" to be of minimal importance in the investigative process. They tend to be a cynical lot, and are more than willing to believe that people will kill each other for obscure, petty, trivial, and/or nonsensical reasons, or even for no real reason at all. Tell one of them that a suspect is innocent because they have no motive (or every reason not to have killed the victim) or that another suspect looks good for the crime because they have a particularly strong motive, and you'll just get a glorified shrug. Prosecutors tend to care a bit more because they want to tell a "story" of what happened, and want to have a motive to present to the jury and complete that story. The detectives tend to think that a jury's desire for a motive is an example of The CSI Effect at work.
- Under the statutes of most states, the prosecution doesn't need to prove motive. It only needs to prove the defendant acted with intent, or something similar like "prior calculation and design" (as Ohio puts it). As noted, motive sells the case to a jury better though.
- Just so non-law students are clear on the difference: Intent refers to what a particular person wants to have happened ('I meant to kill him. I wanted him dead'). Motive refers to why ('He was an abusive jerk'). Motive, unless it's a recognized defense such as self-defense, duress, necessity, etc., does not matter at all whether someone is found guilty or not as a matter of law. Most juries will gladly factor it in when determining the level of punishment, but even then, the law usually limits what juries are allowed to take into account.
- Confusion of terms from related fields of legal practice. The title of Cracked's "5 Everyday Things You Won't Believe Are Copyrighted" is a Lie To Children: items #5, #4, and #1 refer to trademarks, and #3 and #2 refer to patents.
- The trope of Grade School CEO is essentially impossible in practically every nation on Earth. For the most part, minors aren't legally allowed to sign contracts and most developed nations prohibit children that young from holding jobs, even if they own the company. When the child in question has inherited the company, often because someone murdered their parent(s), it is doubly a case of Artistic License - Law in that even if the parent hadn't established a trusteeship in their will (most corporate lawyers would do so as a matter of course), the Courts would establish one immediately to see to the child's best interests. Most of the time the power of such Trustees / Conservators is limited to keep them from then running off with the fortune, but they do not work for the child, but rather for the Trust itself. The Trust is then responsible for looking after the child's assets and best interests.
- In many courtroom shows (Law & Order being the worst offender) a defense attorney will often press the shaky witness for a "yes or no" answer to a loaded question. The witness will answer, but tries to add context; however, the defense attorney cuts them off, triumphantly stating that they having nothing further and strides back while the prosecutor smoulders impotently. In Real Life, the prosecutor would simply stand, ask for a redirect, and then ask the witness what they were about to say before they were so rudely interrupted.
- The judge may also intervene and allow the witness to answer the question completely when it's obvious they are being cut off.
- A good example of this is in Iron Man 2 during the Senate Committee hearing, when the Obstructive Bureaucrat senator orders Rhodes to read a single line from his report on the Iron Man armor—clearly out of context—about Iron Man being a potential threat, then cuts him off before he could explain what he meant. Tony had every right to jump in and ask Rhodes to finish his statement.
- Trial proceedings in general. In many shows, the prosecution (or plaintiff) presents their case first, and then the defense presents theirs. In the case where the defense's witnesses suddenly derail the prosecution's case, prosecutors will try to get things back on track with that witness, but then find themselves unable to do anything else since they've already called their witnesses and rested their case. In Real Life, the court case follows a specific sequence: the prosecution presents the case, the defense presents their rebuttal to the prosecution's case, and then the prosecution gets to rebut the defense's rebuttal (specifically called the prosecution rebuttal). The same thing happens with witnesses (as detailed above). Even closing arguments follow this sequence, with the prosecution getting the first and last word.
- In Germany, failure to provide the accused in a criminal court with The Last Word is a reason for appeal and appeals because of this very reason still happen quite regularly, because it's seen as such a big deal.
- On TV, the high priced defense lawyer will, upon first meeting his/her client, say "don't tell me whether you did it or not." In real life, the first thing a defense lawyer says to their client? "Tell me what happened." While it's not quite the same thing, if you can tell your attorney what happened without saying whether you did it or not, well, maybe you should be the lawyer here.
- In traditional lawyer-client interviews, the lawyer simply extracted information from his client and then decided the best course of action to take, regardless of whether it was something the client wanted or not. In the past few decades, however, many lawyers have adopted a "client-centered" approach, where they take the time to explain various potential courses of action the client can take, and what the potential consequences of those actions would be. After all, not everyone puts money or their personal freedom first.
- The not-quite-trope of the President of the United States having to be born in the United States (see Barack Obama). In reality, the President only has to be a "natural-born citizen" of the USA (which can mean anything from being born within the country's borders by legal resident parents to being born elsewhere in the world with one or more citizen parents) over the age of 35 who has lived in the country for at least 14 years. One could, technically, be born in Canada and move south at the age of 21 and still be eligible to be president, as long as their parents met the requirements for them to be born a citizen.
- Insider trading. The crime is actually much, much narrower than commonly portrayed on TV (and used to be even narrower than that) and is based upon the concept of fiduciary duties. Even the newer, more aggressive definition still requires the breach of a "duty of trust or confidence" and that the defendant have a "reason to know" that the source of a tip involved the breach of such a duty. It is, in fact, entirely legal for you to overhear someone discussing insider information while, say, waiting tables, eavesdrop, and trade based on that information.