Reality and fiction are not the same. Fiction represents an author’s shaping, focusing and changing reality to tell a story. Trouble comes when fictional trial scenes start to impact real trials.
Memorable fiction and drama involving lawyers usually contains a trial scene. There are obvious reasons for this: trials are invariably depicted as exciting dialectic battles. (One seldom comes upon a novel about a lawyer who prepares wills.) Trials have always been popular in literature. Yet the reality is that many people find actual trials boring and few look forward to being summoned to jury duty. Real trials are seldom as exciting as fictitious ones.
More unsettling, fiction, particularly in the form of ubiquitous television dramas, can actually have a negative impact on the legal process. Two phenomena appear to be the most responsible: the “CSI effect” and the “Perry Mason moment.”
From Sherlock Holmes down to the present day, people have enjoyed stories of crimes solved by logic. However, today, what Holmes used to do with his reasoning to catch criminals is now usually portrayed as being done infallibly in laboratories with microscopes and the like. A prime example of this is CSI: Crime Scene Investigation. In “The ‘CSI Effect:’ Does It Really Exist?” Douglas E. Shelton observes:
CSI: Crime Scene Investigation has been called the most popular television show in the world. Not only is CSI so popular that it has spawned other versions that dominate the traditional television ratings, it has also prompted similar forensic dramas, such as Cold Case, Bones, and Numb3rs. According to one 2006 weekly Nielsen rating:
- 30 million people watched CSI on one night.
- 70 million watched at least one of the three CSI shows.
- 40 million watched two other forensic dramas, Without a Trace and Cold Case.
Shelton then asks, “How many of those viewers reported for jury duty the next day?”
Among the finding presented by this study was the conclusion that the more prospective jurors watched shows like CSI, the more they wanted to see forensic evidence before they would convict. However, forensic evidence is not perfect, despite the fact that many seem to think it is.
In an article in The Baltimore Sun, Allison Klein wrote that:
As shows such as CSI: Crime Scene Investigation have become America’s most-watched programs, lawyers and scientists have noticed an unintended consequence: Jurors increasingly expect to encounter in the courtroom what they’ve seen on television – DNA, fingerprints or other irrefutable scientific evidence of guilt. 
The influence of fiction on the trial process does not end there. Besides the “CSI effect” there is the “Perry Mason moment” school of fiction in which there is always a trial with a climax that reveals a dramatic secret. A fictitious attorney, Mason never lost a case, and he invariably won his trials by breaking a witness down on the stand or triggering someone out in the audience to stand up and confess, much like Claudius in Hamlet. This writer has personally seen a New York State Court system instructional video for prospective jurors that featured a clip from the old Perry Mason TV show wherein someone suddenly rises to his feet and confesses during a trial. It is immediately followed by a stern injunction that this never happens in real life. If there were no problem, there would have been no need for such a warning.
So, there is some disquieting evidence that “law is imitating art” and has been for some time. One scholar, Aleksandra Kocelko, has found that “[a]ttorneys do believe television shows have impacted what a juror expects, and in turn work to craft their presentations more like a television program. Additionally, jurors who watch legal television shows more frequently are more likely to believe the depictions on these shows are accurate.”
Kocelko further notes that:
Attorneys understand how essential it is to understand what is going through a jury’s mind. Even if their expectations are wholly inaccurate and based on created for TV entertainment purposes. . . A civil plaintiff’s attorney stated that the top thing they do in order to hold people’s attention is simple, “keep it short.”
Another writer neatly lists “6 Myths Hollywood Has You Believing About Jury Trials.” For the proposition that “Trials are Suspenseful and Interesting” Brett MW in an article on the website Reelrundown.com, gives a “Hollywood” version and another entitled “Reality:”
They are called courtroom dramas for a reason: they are dramatic. We have seen the situations before. Every time a witness is testifying you can hear a pin drop in the courtroom. The suspense is unbearable. Testimony is riveting and someone could drop a bombshell at any moment. And when they do drop that bombshell there are gasps from the audience and the judge has to demand “Order in the Court.” So dramatic. So suspenseful. You can cut the tension with a knife.
Trials are boring. It’s true that you can usually hear a pin drop but it’s because everyone has fallen asleep. Audience members fall asleep. Defendants fall asleep. Even judges fall asleep!
Most witness testimony is spent establishing timelines or simple facts necessary for proving a point of law. There are no Perry Mason moments and nothing results in gasps from the audience after a lawyer breaks someone down and gets them to confess….
Trials in Fiction
John Grisham’s The Rainmaker is a perfect example of a legal thriller. It is the story of a young lawyer just out of law school, who, within a few months after passing the bar, has somehow set up his own firm and for his first trial finds himself taking on a huge insurance company in a bad faith action. With the exception of one tiny matter, the law in the novel is correct. The only problem with The Rainmaker is that it is preposterous. A sensible, neophyte lawyer with no trial experience who came upon a big case would refer the matter to more experienced counsel or would at least partner with a more knowledgeable attorney. There is even an ethical requirement to do so. I also refuse to believe that a new lawyer would be able to take on and defeat experienced opposing counsel who represents “the powers of darkness.” By the way, while trying the big case the young lawyer finds the time to meet the love of his life.
A similar comment could be made about Grisham’s first big hit, The Firm. The hero is a lawyer fresh out of Harvard who unwittingly goes to work for a law firm that fronts for the Mafia. He routinely works 80 hours a week while conducting a one-man sting operation against his employers and simultaneously planning his escape. Having worked such hours in my early career, I can attest that this is physically impossible.
Presumed Innocent by Scott Turow is an excellent book. It delves deeply into the soul of the accused, a high-ranking assistant district attorney who finds himself on trial for the murder of a fellow attorney with whom he’d had an affair. A trial is supposed to be a “search for the truth.” However, in Presumed Innocent the truth appears to be the last thing anyone wants to emerge at the trial: the prosecutors have one agenda, while the judge has another.
There is one thing that makes the premise of this book unbelievable. The protagonist is being prosecuted by the same D.A.’s office he worked for. If such a trial actually took place, the judge would probably assign the prosecution to outside counsel to avoid any appearance of prejudice.
The Caine Mutiny also has a famous trial scene, but Mutiny is primarily a sprawling novel about World War II with many subplots. The plot obviously closest to the author’s heart is the love story in the book. By now, most people know about Captain Queeg, his two steel balls and his increasingly erratic behavior on a mine sweeper in World War II. As his actions become more and more bizarre, Maryk, his executive officer, begins to keep a log of Queeg’s actions. Finally, Queeg cracks under pressure and Maryk seizes control of the ship in a typhoon.
But was Queeg really crazy? At Maryk’s court martial, an excellent prosecutor methodically tears the evidence against Queeg to shreds and uses it to point the finger of mental instability at Maryk himself. All seems lost. But then, in comes Greenwald, a brilliant defense attorney, who in effect rehabilitates all the evidence and turns the testimony of the prosecutor’s lead psychiatrist back against him.
After asking Queeg’s psychiatrist a series of seemingly innocuous questions about his mental state which elicit answers indicating Queeg has some problems,
Greenwald suddenly switched from his fumbling manner to clicking preciseness. “Doctor, you’ve testified that the following symptoms exist in the commander’s behavior: rigidity of personality, unreasonable suspicion, withdrawal from reality, perfectionist anxiety, an unreal basic premise, and an obsessive sense of self-righteousness.”
Dr. Landeen looked startled. “All mild, sir, all well compensated.”
“Yes, Doctor. Is there an inclusive psychiatric term-one label-for this syndrome?”
. . . .
“I know what you’re driving at, of course. It’s a paranoid personality, of course, but this is not a disabling affliction.”
“What kind of personality, Doctor?”
Finally, Captain Queeg himself is put on the stand where he is subject to relentless questioning by Greenwald. There is no “Perry Mason moment” in Caine, but instead Queeg is so unable to handle Greenwald’s relentless questioning that he pulls out his two steel balls and descends into a defensive stream-of-consciousness monologue. Maryk is acquitted.
Without Queeg’s madness and the trial, the book would have had no climax and it probably would have been a forgettable love story. Yet it has a life separate from its legal machinations and hence The Caine Mutiny should not be classified as a legal thriller. It is a sturdy tale of men at war that has been in print for over 60 years.
Perhaps the best depiction this writer has found of the realities of an actual trial is Harper Lee’s To Kill a Mockingbird. The time is Alabama in 1935 – not the best of times to be a poor Negro accused of raping a white woman –and the narrative is told from the perspective of the young daughter of his defense attorney, Atticus Finch, who observes, “So far, things were utterly dull: nobody had thundered, there were no arguments between opposing counsel, there was no drama; a grave disappointment to all present, it seemed.”
Caine and Mockingbird share two important similarities: they were written by non-lawyers and the books could survive as valid stories if the trials could somehow be removed from them. Perhaps that is the difference between a regular writer of fiction and a writer of legal fiction. The former looks upon life as a totality with law only being a part of it while a legal writer begins with what he or she knows – the law – and adds life to fill in the details. If true, this would explain why non-lawyer authors keep the law in perspective better than the writers of legal thrillers.
Trials in Film
Since many people get their knowledge of life from film, a consideration of how the lawyer’s life is depicted on the screen is called for.
My Cousin Vinny is a very funny movie, and, surprisingly, it is accurate on certain aspects of legal procedure. But, on some points it is spectacularly wrong. For example, Vinny lies to a judge about his credentials as a lawyer and acts in such a vulgar, buffoonish manner in court that it is hard to believe that any judge would let him continue as counsel. Also, the plaintiff is somehow allowed to introduce a surprise expert witness.
The Verdict with Paul Newman is a treasure trove of legal errors. The most serious occurs when the lawyer-hero breaks into someone’s mailbox to read the address on an envelope. That is a federal offense. But that is almost a side issue: Paul Newman is offered a settlement by the defendants and he rejects it without consulting his clients. That is a serious ethical breach that would subject an attorney to professional discipline. However, my favorite error is when the opposition cites an imaginary case – with a decimal point in the citation – to support their position.
Legally Blonde can be best described as a farce. It does not depict realistic human beings, and the legal doings are absurd. A first-year Harvard law school student claims to be a lawyer to get someone out of a tight situation. Impersonating a lawyer is a crime. Later, while still a law student, the heroine abruptly takes over the defense in a murder case in the middle of the trial itself. Her authority for doing so is a presumably imaginary court rule. Further, no judge would ever permit a substitution of counsel at that point, especially in a murder trial. The heroine addresses the jury in the middle of the trial, something that is not permitted, and then elicits a confession on the stand with a lengthy, compound question that would have had any prosecutor on his or her feet shouting “Objection!”
Lastly, when there is a sudden confession to the murder on the witness stand, the judge raps her gavel and tells the defendant that her case is dismissed and that she is free to go. In reality, the judge would at the least have first called a bench conference. In its defense, while the trial scene in Legally Blonde may be insulting to a lawyer’s intelligence, the film is never boring and it has its share of laughs.
The desire to exaggerate court proceedings for dramatic purposes is not rare. People want their food seasoned. However, if life is imitating art and trial attorneys are reformulating trials strategies to avoid the “Perry Mason moment” and jurors are expecting reality to conform to the “CSI Effect,” then something must be done to warn them against them being unduly influenced by popular culture. Popular fiction could reform itself, but, given our constitutional freedom of speech, that is unlikely to happen. The only answer, then, is that lawyers and judges must take even greater care to ensure that justice is done in a real world that must live up to imaginary expectations. This could include an addition to the Pattern Jury Instructions to tell jurors to disregard law as portrayed in the media as well as add voir dire questions on what television shows potential jurors watch, and how realistic they believe them to be.
The law is a strong yet flexible thing. It can find a way to cope with this problem.
William B. Stock is a long-time member of the New York State Bar Association. He was admitted to the bar in 1984. Now retired from the practice of law, he is studying English literature.
. John Oliver. Juries. Episode of HBO’s Last Week Tonight, available on YouTube. Donald E. Shelton, The “CSI Effect”: Does It Really Exist? (March 16, 2008), https://nij.ojp.gov/topics/articles/csi-effect-does-it-really-exist.
. Shelton, CSI Effect, https://nij.ojp.gov/topics/articles/csi-effect-does-it-really-exist.
. John Oliver, Forensic Science. Episode of HBO’s Last Week Tonight, available on YouTube.
. Allison Klein, Art Trips Up Life: TV Crime Shows Influence Jurors. The Baltimore Sun (July 25, 2004).
. There is a Wikipedia article with this heading.
. Aleksandra Kocelko, The Effect of Legal Television Shows on the Trial Process. (2011.) (unpublished honor’s thesis, American University. Quoting preliminary abstract.
. Id., at 44–45.
. Brett MW, 6 Myths Hollywood Has You Believing About Jury Trials, https://reelrundown.com/misc/6-Myths-Hollywood-Has-You-Believe-About-Jury-Trials .
. John Grisham, The Rainmaker (1995).
. A bad faith action is one where an insurance company is sued for wrongfully denying a claim.
. John Grisham, The Firm (1991).
. Scott Turow, Presumed Innocent (1987).
. People v. Marks, 127 Misc. 2d 591 (Sup. Ct., N.Y. Co. 1985).
. Indeed, it later became a successful play on Broadway, The Caine Mutiny Court Martial.
. Herman Wouk, The Caine Mutiny (2003 ed.).
. In doing so, he eerily foretells Presidents Nixon and Trump.
. I am using this word to be true to the language of the book.
. Harper Lee, To Kill A Mockingbird 195 (2001 ed.).
. Many of the ideas in this section came from a Continuing Legal Education class given by the New York City Bar Center, “Lights, Camera, Ethics!” originally screened November 5, 2020.
. My Cousin Vinny (1992).
. See Legal Eagles: My Cousin Vinny on YouTube.
. The Verdict (1982).
. Legally Blonde (2001).