A little while back someone in one of the online writers’ forums I haunt asked about what, within our particular area of real life expertise, makes us throw up our hands when we see it in fiction. This was particularly in a sci-fi and fantasy context, so my own area of expertise – criminal law – doesn’t really come into play. But reading the discussion and thinking about the question made me realize there is a fine line in fiction between not getting something right and actually getting it wrong.
Exhibit A, since it’s right in my wheelhouse – Law & Order. I’m talking the mothership here, the one that effectively split its time between the courtroom and the police investigation. To put it bluntly, Law & Order very rarely actually got things right, but it didn’t very often actually get things wrong. The former is forgivable, understandable, and even to be encouraged in the interest of drama. The latter just makes me want to punch the TV.
An episode that was on the other day while I was knocking around the house provides great examples of each. “Charm City” is the first part of the first crossover between Law & Order and my favorite cop show of all time, Homicide: Life On the Street. A gas bomb attack in New York has ties to a similar attack years earlier in Baltimore, bringing Baltimore detectives to town to crack the case.
The eventual trial provides an example of the first situation – not getting it right, but in the understandable service of the narrative. Curtis testifies at trial and, among other things, tells the jury that a partial thumbprint was found at the crime scene and it matched the defendant. In no way would a detective testify about this in a real trial. That evidence would come in via an expert witness, probably from the state or city’s crime lab. But we’ve never seen a crime lab expert in this episode, so it’s a waste of narrative resources to introduce an entirely new character to pass on this single (uncontested) fact. Curtis is a main character, by contrast, so give it to him to carry. It’s not right, but it’s not all that wrong, either.
By contrast, earlier on is the kind of thing that Law & Order routinely does that makes me howl. The two New York detectives question the suspect, who gives up nothing. Their boss lets the Baltimore guys take a run at him. Homicide viewers knew that Pembleton’s great skill was extracting confessions in “the box,” and, he does, but only after the suspect says he “can’t talk about it.” Pembleton responds, “you mean you’re unable to talk about it, or you just don’t want to talk about it?”
The confession winds up getting suppressed because, in the Law & Order universe, “I can’t talk about it” is an invocation of the right to remain silent and the right to counsel. There’s even a good back and forth about how it doesn’t matter that such things will “fly” down in Baltimore. In truth, such things “fly” everywhere that Supreme Court precedent controls. Invocation of counsel, or the right to remain silent, has to be explicit before it keeps the cops from barreling on with their inquiries.
The ruling was, simply, TV-land bullshit, an attempt to throw an obstacle in the path of our heroes. This was getting it wrong, seriously wrong, more than just not getting it right. And, in the end, it didn’t really make a difference (the guy was convicted anyway, without much drama). The overly-defense friendly law is a staple on Law & Order, but it’s usually at least closer to getting it right than this.
In the end, does it really matter? No, because the vast majority of people watching Law & Order aren’t lawyers, much less criminal defense lawyers who might zero in on that kind of thing. For most viewers it’s just an obstacle for our heroes to overcome. That, after all, is why we’re watching. Which is why it’s important for “experts” to back off a little bit and give fiction some room to breathe. Everybody sing along: