A JD By Watching TV

The New York Times Room for Debate poses yet another interesting issue raised by the dubious fascination with the Zimmerman trial:

Does televising important trials let people better understand the case, and the criminal justice system, or does that attention turn the justice system into a circus?

Think the answer is obvious? Not to the chosen experts.  Larry Posner, identified merely as a trial lawyer, offers his two cents:

Watch a televised trial not because it is an excellent tutorial on our justice system, but because it is a tolerable – and even entertaining – method of learning about something important and complex: the right to trial by jury.  Studying criminal procedure from a televised trial is painless.  Viewers learn about jury selection, and the function of opening statements. They learn that the burden of proof is on the government, and that the proof must be beyond a reasonable doubt.  Try force-feeding those concepts to citizens, and most would drop the class. Put it on television, and it is the ultimate reality show.

To his credit, at least he doesn’t argue that it prepares the viewer to hop out of his La-Z-Boy and into the well to cross a witness. While it is more fun than a crim law lecture, that merely puts it into the category of a root canal. The leap from sufficiently interesting to grab the attention of the viewer to the viewer learning anything seems blind. Deaf and dumb as well. Citizens may have watched it, but watching and learning are two entirely different things. You don’t necessarily get to the latter through the former.

It was particularly interesting to see my Above The Law pal David Lat as one of the debaters, something at which he is a master.  David too notes that people don’t seem to be thrilled about learning law.

As a result, citizens often adopt a willful blindness regarding law and the legal system. Such ignorance has negative consequences. It reduces compliance with the law. It makes for a less informed electorate.

No question that the law is a pervasive and critical factor in every American’s life, and yet one that shockingly few know anything about. But David, who feels that no image of a female law student in crotchless panties should not be made immediately and publicly available, takes it to the next level.

Fictional representations of the law, even when imperfect, are a step toward correcting this. They function as civic education, getting people interested in the law.

So Ally McBeal helped?

Sometimes these depictions are distorted for entertainment value.

Wait, David. Are you saying all murder cases don’t go from arrest to verdict in an hour?

What about inaccuracies in fictional representations of the law? They are a concern, although less so in the information age, when accurate information is just a few keystrokes away.

Because most people will immediately run to the computer after watching a TV show and fact-check?  And if it says so on the internet, it must be true. The internet can’t be wrong, you know (cue French model).

Sensationalism in fictional depictions is an issue as well. But sensationalism is no less present in the coverage of high-profile trials like those of George Zimmerman or Casey Anthony, which is where people will otherwise acquire their knowledge of the legal system.

This could have been an opportune moment for David to decry the sensationalism, if not outright stupidity, of putative news channels. After all, what’s holding the viewers’ attention by pandering to their bias when compared to the billions of brain cells murdered?

But, no. Better the public learns it wrong, and is thereafter absolutely certain they now “know” the law because they saw it on TV with color commentary from relatively attractive angry women (Nancy Grace excepted) than intelligent, accurate and thoughtful color commentary from lawyers who actually do this stuff and know what they’re talking about. John Madden would have been canned from Monday Night Football by half-time.

Only one voice out of five offered a critical view. Nancy Marder, a Chicago-Kent lawprof, opens with a bang:

Televised criminal trials do more harm than good.  They hurt defendants’ right to a fair trial and they actually reduce the public’s understanding of our judicial system.

Say what? Spoon-feeding bad information 24/7 isn’t the bedrock of American Exceptionalism? How can that be?

In addition to the fairness issue, it is ironic but true that televising trials in an effort to educate the public actually misinforms the public.  Viewers form a judgment about the defendant and come to believe they know what decision the jury should reach.

Marder goes on to argue, properly if inadequately, that watching a trial on TV isn’t the same as being a juror in a trial, and the impression that viewers get that they are in the same position as the very jurors deciding the case is false.  While certainly accurate, as the jurors aren’t forced to endure HLN’s insights, this doesn’t go nearly far enough in distinguishing what one learns from watching television from actual knowledge.

Room for debate is a great concept, provided it offers differing views and, frankly, substantive views from knowledgeable people. That they asked no criminal defense lawyer (nor current prosecutor, for that matter) to opine is a reflection of the New York Times myopic grasp of who has a view worthy of promotion.

But aside from the players, not a single debater, save Marder to a small extent, made anything of the obvious reality that television viewers can watch a trial all day and all night, but without knowing what they are seeing, without context, without a foundational knowledge to understand, it’s just entertainment. It’s tap dancing.

Am I sucking all the fun out of the TV program? Well, maybe a bit, but there is no reason why, if they are compelled to air a trial in its entirety, it can’t include neutral and accurate commentary that strives to illuminate rather than titillate. It could serve to educate, at least to a small extent since nobody will ever become a lawyer by watching television, but the more crap that’s served to Americans to keep them from changing the channel, the more damage to our civic virtue. Marder is right, bad information “actually misinforms the public,” and there is no benefit in making people stupider.

 

 

 

13 comments on “A JD By Watching TV

  1. Nigel Declan

    But if the sort of fair, knowledgeable televised trial coverage which you describe is not available, which is the lesser evil when dealing with a trial which is of interest to the public-at-large: television coverage of a trial, which lacks context but which is an accurate depiction of the criminal trial process, or no television coverage, which avoids this problem but, since people can’t watch the proceedings directly, leaves those non-lawyers who are interested at the mercy of the Nancy Graces and Lawrence O’Donnells who will present their highly biased views of what happened each day in court? Being a formerly-practicing lawyer from Canada, where television cameras are not permitted for any court proceedings, I have no practical experience on either side of this debate (and, based on my personal experience up here as well as I what I read from American criminal law blogs, Canadian journalists are, on average, no more knowledgeable about how the law and the justice system actually work than American journalists – including a number of pseudo-journalists and “legal experts” who talk nonsense on both sides of the border).

    1. SHG

      Think of it this way. Imagine if they showed brain surgery on TV, without commentary. Would anybody watching, even watching every second of it, be any more capable of performing brain surgery than they were before?

      The assumption is that a little knowledge is better than no knowledge. Of course, the adage is “a little knowledge is dangerous.” My concern is that bad knowledge which give the impression of good knowledge is worse than a little knowledge, as it leaves the viewer thinking he has a clue when in fact he not only doesn’t, but has it all wrong.

    2. C. N. Nevets

      “…dealing with a trial which is of interest to the public-at-large…”

      It seems to me there’s bit a of a Chicken v. Egg scenario here, though. Are trials televised because they are of interest, or do trials capture the public interest because they’re on TV so much?

      For interest, for all the interesting socio-political and cultural issues which might have been raised by the Zimmerman trial, it seems like other trials raise just as many or more and have no television coverage and (it seems like a therefore would be appropriate here) little public interest.

      For example, the recent Weekley trial. “White cop shoots and kills seven year-old black girl during filming of reality TV show.” Add to that Detroit, (at the time) in the verge of bankruptcy. Add to that the the trial ended in a hung jury. Seems like plenty of public interest could and should be directed towards such a trial, but there is almost no television and almost no interest.

      All that is a long-winded way of saying, however the televising of trials might be justified, I don’t think it can really be in terms of public interest without falling into a circularity trap.

  2. C. N. Nevets

    Can anyone show evidence of education taking place?

    I mean, as near as I can tell, trials are viewed through such thick filters of confirmation bias that they serve to entrench assumptions, not to educate about either practical or philosophical matters. The conversation after a televised trial seems only to further polarize, not to generate intellectual engagement that advances learning.

    1. John Neff

      A trial is a contest where the outcome is in doubt. I think most viewers have pre-judged the case and a watching to see what the outcome will be. If there is an educational outcome it may be to teach people to avoid jury duty.

      TV can be used to sell stuff and increase the audience size for events and under favorable conditions inform and educate. In the case of a trial there is a conflict with informing and education.

  3. John Burgess

    [Name deleted], a former federal prosecutor — and now an author — has an entertaining blog, [blog deleted], in which she (and guest writers) dissect the latest episodes of “Law & Order: SVU”. She does a good job of picking out where the police and lawyerly behaviors stray from reality.

    [No link provided, as per, but the blog is easy enough to find. When the TV broadcast season is over, though, the discussions turn more toward her mystery novels.]

    1. SHG Post author

      Et tu? I would have thought you knew better. If I want someone’s blog promoted at SJ, I’ll include it. If you think I ought to know about it, send me an email, but never include it in a comment.

      And by the way, when you write “she does a good job,” that’s based on your decades of experience as a criminal defense lawyer?

      1. John Burgess

        Ouch! And my apologies. I didn’t realize that just naming a blog was against the rules. Now I know.

        “Decades of experience as a defense lawyer”? No, not at all. Rather it’s her (to me) rational discussion of the problems with the scripts coupled with my admittedly limited first- and second-hand experience with the law. I see the blog as a corrective to the Nancy Graces of the world.

        1. SHG Post author

          One of the perks of ownership is getting to decide whose name/blog gets some juice off my dime. There are a lot of people who would like to promote themselves, their friends and blogs they like here. If it was allowed, it would not only prove problematic for spam, but I reserve the right to name/promote only those people and blogs that I think deserve to be promoted. My soapbox, and all.

  4. Bruce Coulson

    Wait, you mean all the time I spend reading legal blogs doesn’t qualify me to be a lawyer? Oh darn…

    There’s a significant difference between ‘entertainment’ (or or even ‘infotainment’) and reality; that’s why the phrase ‘artistic license’ exists. Even if a producer WANTED to educate people by showing the ‘nuts and bolts’ of a trial, it wouldn’t work, because I’m sure that much of what is happening is meaningless without context or prior knowledge, there’s not a lawyer or law professor in every home answering questions (“why did the attorney do THAT?”)… and a lot of it would involve matters that unless you already knew the law, would be very boring. (Much of it may well be boring to the participants, for all I know.) And boring is not what you want in entertainment, even if boring is good in real life.

    A major comic book company tried to present a murder trial of one of their major characters (‘The Trial of the Flash!’). Not only was it very inaccurate (according to an attorney who read it), it turned out to be boring and ended that particular run of the comic.

    Commerical TV can’t present trials accurately, with an eye to educate; they have to make money. Public TV could, I suppose; but who would watch it?

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