The Defamation of the Criminal Justice SystemGood name in man and woman, dear my lord, Is the immediate jewl of their souls; Who steals my purse steals trash; ‘tis something, nothing; ‘twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. -William Shakespeare, Othello
We have two very different criminal justice systems in the United States. One that is the reality and the other that exists only in the minds of the entertainment and news media, and the viewers they inform. The result is an American public that is being misled about the realities of the criminal justice system and this deception has real-life consequences to those the system is meant to serve.
“You have the right to remain silent. Anything you say can, and will, be used against you. You have the right to an attorney. If you cannot afford one, one will be appointed for you.” We hear this phrase over and over again. High school students may not be able to name the Vice President of the United States but they know that these words recited constitute the Miranda warning.
As a defense attorney I get contacted by prospective clients who are quick to tell me that they were not “read their rights” when they were arrested, confident they are that this will provide procedural advantage. Most are very surprised to learn that the police were under absolutely no obligation to read a suspect his or her rights upon arrest.
The Miranda warning as commonly depicted in crime drama series and even in so-called “reality” shows like “COPS” is not the entirety of the Warning read to suspects. The remainder provides, “Having these rights in mind do you now wish to waive those rights and speak with me now.” But police have no intention of conducting a formal interrogation in the police car on the ride to the station. Thus, they are not obligated to even advise the suspect at that moment. Instead, the advisal will occur, if it happens at all, immediately prior to the formal interrogation. Most commonly, suspects are presented with a written form containing their rights and they are asked to sign the form so police and prosecutors can later prove that the suspect indeed waived those rights.
Indeed, there is no practical purpose to provide the Miranda warnings upon arrest and tactical considerations would frown upon doing so. Police can get evidence surreptitiously by placing two cuffed arrestees in the back of the patrol car and leaving them to talk, unwittingly believing that they are alone, all the while the audio recording device in the police cruiser is capturing all they are saying. This is not a rogue practice but standard operating police procedure. (Ruttledge, 2008, para. 2 – 3.) Yet millions of television viewers are led to believe otherwise. Why? Perhaps it gives the actors something to say while putting on the cuffs. Perhaps since every other movie and crime drama series does this, it has become expected in the industry.
This is a fictional genre so viewers who watch shows like Law & Order, CSI and Criminal Minds should know the difference between fictional content and reality, right? Not so. The problem is that while there is a disclaimer on most shows that the facts portrayed are fiction, the viewer still mistakenly believes that the backdrop for those facts, the criminal procedures portrayed, is accurate depiction of our criminal justice system.
Ask anyone who modernly teaches Criminal Procedure to undergraduate students and you will find resounding support. Students enter such classes mistakenly believing they have a decent understanding of the criminal justice system from watching such shows. The reality is the instructors have to de-program and unwind all the falsehoods these shows depict.
While the misinformation places an additional burden on criminal justice faculty, the challenge for the criminal defense attorney representing a client whose liberty is threatened can be untold and provides few opportunities to re-educate. Jurors on a case do not come to court with a list of episodes they have watched. The jurors believe that the procedures they have watched are accurate and the attorneys do not know the extent of each individual juror’s misunderstanding. This has dangerous consequences.
When “The Practice” was popular, I had occasion to watch an episode when Dylan McDermott, playing the role of defense attorney Bobby Donnell, told a jury in closing argument, “I know my client is innocent.” Six words. Makes for good drama. But if I say those words in closing argument, the prosecutor is entitled to a mistrial and I could be fined in contempt for making such a rookie mistake. I cannot vouch, personally, for my client. That would make me a witness and entitle the prosecutor to cross-examine me. So I cannot make such an assertion ever. Yet I do not know which of the jurors may have seen that particular episode and are expecting, if I believe my client to be innocent, for me to say as such. So instead, I have to explain this to every jury in every case. That is just one of the potential ways a misinformed juror could end up wrongfully convicting the defendant based on Hollywood’s reckless disregard for the truth. This “alternate-reality” depicted in crime drama series does not always inure to the benefit of the prosecutor.
CSI Effect: This is now a criminological term created by the misinformation in one particular series, CSI. (Rath, 2011). Much like with those who watch its companion series Law & Order, viewers universally understand that the factual scenarios depicted on that series are not true. They may also understand that not all of the forensic techniques showcased are grounded in reality. But without an adequate understanding of the realities of the system, juxtaposed against the fictions presented as truths, the juror is ill-equipped to adequately assess the difference between the two.
CSI has created an entirely new occupation – that of the Crime Scene Investigator. This position does not exist in one person or in one field of study. Students enroll in college programs hoping to one day become a “Crime Scene Investigator,” motivated by this series. Yet this position is unattainable. There is the entry-level position of crime scene evidence technician. These are the individuals who collect the evidence. Then there are those individuals who look under the microscope and conduct scientific analysis. These are the forensic examiners. Finally, there are police detectives who interview witnesses. One person does not do all three tasks.
In talking with jurors after they have rendered verdicts favorable to my client, it is common to find that they were disappointed with the lack of forensic evidence in the case and found the police work to be sloppy and incomplete as a result. Yet many criminal prosecutions neither need nor support such. Fingerprints are not going to be taken at all burglaries. Fingerprints are not capable of being found on many surfaces. Some surfaces would have so many different fingerprints, isolating to the criminal would be impossible. Fiber evidence, paint analysis, DNA: these techniques are costly. Only in the most serious cases will such costs be justified.
The prosecutor in the Casey Anthony murder trial pulled out all the stops, forensically. They were able to prove that the “smell of death” was present in the trunk of the defendant’s car. Yet the jury acquitted Casey Anthony, much to the astonishment of the American public. Many ascribe this failure-to-convict to the ‘CSI Effect.” (Hoffmeister, 2011, para. 8). The prosecutor, by relying so heavily on forensic analysis in its presentation of the case, may have unwittingly perpetuated this. While proving certain facts forensically, the prosecutor was unable to prove manner or cause of death. In the past, the circumstantial evidence of her disappearance might have been sufficient to overcome this absence. But not modernly. Jurors want and expect more, even while acknowledging CSI is a fictional representation. Jurors, with “no legal training or real-life experience with the criminal justice system . . . are without any frame of reference for how trials operate beyond what they see on television.” (Hoffmeister, 2011, para. 2.)
The role and function of the defense attorney is also routinely impugned on these series. Retained attorneys are depicted as high-priced shysters who will say or do anything to secure the acquittal of his or her client. Conversely, the public defender is portrayed as feeble and inept. Yet none of these depictions resemble reality. Criminal defense attorneys, unlike their counterparts who practice Civil Law, are less motivated by the material gains in the profession and more motivated by the higher ideals of defending the Constitution.
In a companion piece,I address how the vast majority of cases, approximately 95%, do not go to trial, but plead guilty. (Durose & Langan, 2007.) In those cases, it is incumbent upon the defense attorney to review the facts to ensure that the crimes alleged are supported by the evidence and that the government acted lawfully within the confines of the Constitution. In this manner, defense counsel serves a quality control function. The defense attorney ascribes to the Due Process model philosophy which believes that if the procedure is fair, the outcome should also be fair. A “win” for the defense attorney, therefore, is a fair outcome and NOT an acquittal. Prosecutors calculate their win-loss record on convictions and acquittals only. Thus, in many cases, both prosecution and defense may consider the case that is fairly resolved by conviction, to be a “win” or a successful outcome. By routinely portraying defense counsel as ethically bereft and chasing after the almighty dollar, the media does a disservice. Jurors are more likely to believe prosecution experts than defense experts, believing the defense attorney will say or do anything to secure an acquittal. This creates a bias in favor of the prosecution that shifts the burden unfairly to the defendant.
At its core, however, entertainment television is designed to entertain. Reality TV, however, which purports to adequately represent the reality of the system, is much more nefarious when it seeks to abandon the truth in exchange for ratings.
Watch most “COPS” episodes and you will see the officers advising suspects of their Miranda warnings upon arrest. This has confounded me for decades: why? I’ve concluded in those cases, it is likely the videographer or producer telling the officer to advise the suspect since its viewers will be expecting they do so. When shows that purport to be “reality TV” deliberately present and promote a reality that does not exist, this helps to further confuse the public understanding of the true reality.
Beyond Scared Straight: Perhaps most egregious is the series, “Beyond Scared Straight,” which airs on the Disney A&E network. In this series, juveniles who get arrested for minor acts of delinquency are incarcerated for the weekend in order to “scare them straight” and deter them from continued criminality. The only problem? Scared straight programs do not work. In fact, in repeated studies, juveniles who participate in the “Scared Straight” programs are almost twice as likely to reoffend as those who delinquents who do not. (Aos, Phipps, Barnoski & Lieb, 2011.)
Criminologically, this makes sense. Much of the deterrence of incarceration comes from the fear of the unknown. The fear of the unknown is taken away from these participating juveniles who, because of the nature of their brief incarceration, are held in a sterilized and protected environment. The juveniles are exposed to other delinquents who then share their criminal exploits with each other. In the end, the juvenile, whose brain is not fully formed to appreciate risk and consequence, rationalizes that the experience wasn’t so bad after all and it might be worth committing another delinquent act. (Sullivan, 2011). Indeed, as this program has proven to be cost-inefficient and counter-productive to its stated goals, the federal government refuses to allow any federal funding to be used for these programs. (Hornberger, 2011, para. 5.)
When A&E decided to air the story, it was flooded by the opinions of criminologists and criminal justice policy makers, who provided A&E with the evidence-based analysis showing its ineffectiveness and its danger to the continued delinquency of youth. Their response? To air yet a new series of episodes. (Hornberger, 2011, para. 7.). A petition, which is now closed, circulated in a failed attempt to require A&E to tell the truth about “Scared Straight” programs. (Campaign for Youth Justice, 2011).
Equally disturbing is the inability of the News Media to accurately report on the criminal justice system. Burglaries, a property crime defined as the entering of a building with the intent to commit a theft or a felony, (FBI, n.d.) are commonly described as robberies instead. Robberies are, however, a violent crime and involve the taking of property through force or fear from one’s immediate presence. (FBI, n.d.). Thus, it would be an impossibility to report that an individual returned home from work one day to find that his or her house had been “robbed.” Houses cannot be robbed, only people can be.
Another common mistake is the confusion between jail and prisons; a confusion that is exacerbated by realignment practices such as those in California that shift the population of one facility to another. A prison run by the state and is intended for long-term commitments, generally over one year. Jail, on the other hand, is a city or county facility and is intended for shorter sentences under one year as well as those who are unable to post bail and are awaiting trial. (BJS, n.d.)
But the most egregious is how news media report on acquittals. The reporter will indicate that the defendant was found “Innocent” after a jury verdict. Unlike the confusion between robbery and burglary or jail and prison, both of which reflect an ignorance but not a malice, the decision to report not-guilty verdicts as “innocent” verdicts is intentionally made. News outlets, worried that their reporters will make a mistake and not read the tele-prompter correctly, avoid using “Not Guilty.” If the news reporter mistakenly claims that an acquitted defendant was found “Guilty” instead of “Not Guilty,” a potential civil suit could arise. The irony is that in order to avoid the reporter making a mistake, the news agency makes a conscious and deliberate decision to report it incorrectly.
We do not have a verdict of “innocence” in our country. Scotland does. Scotland has three potential verdicts: guilty, not-guilty and not-proven. (The Scottish Government, 2013, para. 1.) We do not. Our verdict of “not guilty” could mean that the jury found that the defendant was innocent. The verdict, however, could also mean that the jury found the prosecutor had not proven guilt beyond a reasonable doubt. To falsely represent an acquittal as an “innocence” verdict is to misinform the public about what “not guilty” means. Jurors may be loath to render a not guilty verdict simply because they do not believe the defendant is innocent, and irrespective of whether the prosecutor has proven its case to its standard.
Proof of Defamation
To prove that one’s reputation has been defamed, the litigant will have to prove that there was a published statement, that the statement was false and that the statement was injurious. (Doskow, n.d., para. 3.) As demonstrated above, there are many false statements perpetuated about the criminal justice system by the entertainment and news media. The inability of the lay person to adequately distinguish between the false reality portrayed by the media and the actual system could lead to wrongful convictions or unnecessary acquittals. When public figures sue for defamation, they have the additional proof of demonstrating actual malice.
“’Actual malice’ means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth — for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.” (Doskow, n.d., para. 12.) This can certainly be proven as to Disney’s A&E network’s reckless portrayal of the “Beyond Scared Straight” program despite overwhelming evidence of its ineffectiveness and counter-productiveness. This network has deliberately chosen the profit the show generates and rejected the truth.
This “actual malice” standard can also be proven as to news agencies that deliberately elect to report verdicts as “innocent” in order to avoid being sued by an individual for making a mistake. Perhaps, if the news agency was worried about a defamation lawsuit on behalf of the taxpaying public for defamation of the criminal justice system, it would have the proper incentive to report on the truth instead of creating a fiction.
Aos, S., Phipps, P., Barnoski, R. & Lieb, R. (2001). The comparative costs and benefits of programs to reduce crime. Olympia, WA: Washington State Institute for Public Policy. Retrieved on December 1, 2013 from: http://www.wsipp.wa.gov/rptfiles/costbenefit.pdf
Bureau of Justice Statistics. (n.d.) FAQ Detail: What is the difference between jails and prisons? Retrieved on December 1, 2013 from: http://www.bjs.gov/index.cfm?ty=qa&iid=322
Campaign for Youth Justice (2011). Demand A&E tell the truth about ‘Scared Straight.’ Change.org. Retrieved on December 1, 2013 from: http://www.change.org/petitions/demand-ae-tell-the-truth-about-scared-straight
Durose, M.R.& Langan, P.A. (2007, July 1). Felony sentences in state court, 2004. Bureau of Justice Statistics Bulletin. Retrieved from: http://www.bjs.gov/content/pub/pdf/fssc04.pdf
Duskow, E. (n.d.) Defamation law made simple. NOLO. Retrieved on December 1, 2013 from: http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html
Federal Bureau of Investigation. (n.d.) Burglary. Uniform Crime Reports. Retrieved on December 1, 2013 from: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/property-crime/burglarymain
Federal Bureau of Investigation. (n.d.) Robbery. Uniform Crime Reports. Retrieved on December 1, 2013 from: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violent-crime/robberymain
Hoffmeister, T. (2011, July 7). Did ‘CSI Effect’ sway Anthony jury? CNN. Retrieved on December 1, 2013 from: http://edition.cnn.com/2011/OPINION/07/06/hoffmeister.anthony.jury/
Hornberger, N.G. (2011, August). National juvenile justice experts: Invest in proven strategies, not “Scared Straight.” Reclaiming Futures. Retrieved on December 1, 2013 from: http://www.reclaimingfutures.org/blog/juvenile-justice-reform-Scared-Straight-CJJ-position-statement
Rath, A. (2011, February 5). Is the ‘CSI Effect’ influencing courtrooms? NPR. Retrieved on December 1, 2013 from: http://www.npr.org/2011/02/06/133497696/is-the-csi-effect-influencing-courtrooms
Ruttledge, D. (2008, March 1). The Bruton rule: Playing arrestees against each other can help you elicit confessions. Police Patrol. Retrieved on December 1, 2013 from: http://www.policemag.com/channel/patrol/articles/2008/03/the-bruton-rule.aspx
Sullivan, I. (2011, September 6). The many things that are wrong with A&E’s “Beyond Scared Straight” program. Juvenile Justice Information Exchange. Retrieved on December 1, 2013 from: http://jjie.org/whats-wrong-beyond-scared-straight/
The Scottish Government. (2013, June). Reforming Scots criminal law and practice: Additional safeguards following the removal of the requirement for corroboration: Analysis of consultation responses. Retrieved on December 1, 2013 from: http://www.scotland.gov.uk/Publications/2013/06/1213/5