Yesterday, I posted the questions raised by David Giacalone at f/k/a about lawyers and pop culture, and asked what anybody else thought. Not one stinking comment. Not one. Plenty of people read the post, and not one person was willing to respond. What a buch of weenies.
Perhaps this question, important enough for David to ask and worthy enough for me to repeat, didn’t interest anyone else. Fine. Be that way. It’s your loss, because David’s question is not only an important one, but one that should stir a bit of thought amongst the lawyeratti, especially the young guys like Malum and the scotch-swilling, bow-tie adorned, gun-toting Young Shawn. What was wrong, boys? Did all that thinking make your heads hurt?
Despite the apparent lack of interest, this is an issue that real lawyers who try real cases should be highly concerned about. The relationship between our job, making facts and their implications clear to people with diverse cultural understandings and influences, is huge. Ignore it at your peril.
I recall a case where my defense theme fit perfectly with the movie, Looking for Mr. Goodbar. I mean perfectly. And so I plotted out my themes and researched and put it all together in my head, and then . . . it dawned on my that this was a movie from 1977. 1977? Would any of my jurors have been born yet? The likelihood was that I would have a few who would understand and appreciate the theme, if they could still remember stuff despite their advanced years. But I would have a few who would be utterly clueless as to the meaning of my theme. It was be a miserable failure.
What we think of ourselves, and of lawyers, and of defendants, and of cops, means nothing. We don’t get to vote in the jury room. What they think, on the other hand, is critical. Meeting their expectations, or missing them as the case can be, is the silent death of our case in the back of their minds.
So I know what I grew up with for lawyers and cops and witnesses. I know what my expectations of evidence and investigations would be. But I don’t think I reflect the norm these days. I have a teenage daughter and I’ve seen MTV. That world is totally foreign to me. And frankly. pretty disgusting.
I similarly avoid the legal and cop dramas on TV. I don’t watch CSI or Law & Order. I know many do, so they won’t miss me. But it’s not what I want to do with my free time. But many jurors do. And if it’s on TV, it must be true.
That said, here’s David’s questions.
• Are jurors “influenced” by popular culture representations
of law and lawyers?
Absolutely. What other basis would jurors (or anybody) have to know anything about the law?
• Do lawyers and judges think that jurors are being influenced
by popular culture representations?
As I am the authorized spokesperson for all lawyers and judges everywhere, I answer by noting that the ever shifting paradigm of popular cultural representations of law, in all its emanations and penumbras, inherently influences the intrinsic outcomes from a normative perspective, given its pedagogical underpinnings. In other words, how should I know? I assume most would think about it if someone pointed it out to them, but in the grand scheme of things, popular culture probably doesn’t come high on the list of influences lawyers and judges lose sleep about. Except immediately after OJ and when the case involved high tech evidence.
• How does the influence of popular culture representations
change the legal system?
If it dawns on us, as it did to me in my Looking for Mr. Goodbar example, that I can make use of popular culture to further my case, then it can have a significant influence on what I do. In a more macrocosmic way, it brings little change. But the problem isn’t with pop culture, but systemic resistance to change and its institutional love of stability. One huge example of change is the Supreme Court’s use of a video, and subsequent placement on youtube, in Scott v. Harris. What were the chances that Scalia hangs out on youtube?
Of course, what judges wear under their robes today, as opposed to 50 years ago, may disclose a lot. The only think I know is that some judge in Milwaukee who still sports a pompadour isn’t ready to wear an ascot.
But if a lawyer goes into battle without an understanding of the pop culture that influences his jurors, as one of the many factors that form our jurisprudence, then he’s not doing his job.
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I think in criminal defense, the biggest issue you face with pop culture is that your jurors will have favoritism towards the prosecution. They are more often portrayed as heroes than villains in television and movies. Defense attorneys are often seen as scheming and corrupt. I think it’s our obligation as defense attorneys to portray ourselves in such a way as to dispel that assumption as early as possible. Be personable during voir dire, don’t look too slick, give arguments that make sense.
As for me personally, I don’t look like what jurors picture as a defense attorney. I’m a young, petite female. This helps a lot, especially when I’m going against a stereotypical prosecutor who sees themselves as a fighter for justice and tries to let the jury see them that way, too. I want jurors to put their initial assumptions aside and hear what I have to say. I’ve found that when they get past expectations, they often give me more credit than I would have expected as long as I give them legitimate arguments.
However, this doesn’t stop them from wanting to pat me on the shoulder in a grandmotherly way after the verdict and say, “Good job” to me. I can’t see anyone doing that to McCoy on Law & Order.
Are jurors “influenced” by popular culture representations of law and lawyers?
I was a juror on a criminal case only once, but I’ve spent hundreds of hours reading and watching courtroom drama of one kind or another. Of course it’s an influence.
It’s not just popular culture’s representation of law and lawyers that matters, however, there’s also the way pop culture represents crime and cops. Part of the jury’s job is to judge the reasonableness of a witness’s stories, and since many of these stories are about experiences we’ve never had ourselves, we are going to have to compare them to things we’ve read about, heard about, or seen on television.
I remember a chat forum argument about a homeowner who shot a guy he mistakenly thought was a burglar who may or may not have been trying to kick in his door. A lot of people argued the homeowner should have known the guy wasn’t a burglar because he rang the doorbell, and no burglar would do that. Others argued that burglars ring doorbells all the time to check if the home is occupied. Both sides brought to the argument a sense of how burglars work based on stuff they probably got, at least in part, from popular culture. It’s not hard to imagine a similar discussion taking place in deliberations.
Windy, not only does it happen in fact, but it’s what they are instructed to do by the court in weighing the evidence in light of their “common sense.”
What common sense do most normal people have about how crimes are committed or how criminals behave? Whatever they see on TV or in the movies. This is not merely the closest thing they have to a point of reference, but their only point of reference.
And a little secret: Many of us lawyers talk plenty about crime, but we don’t actually envision what happens because we’re not there when the crimes occur. So while the clients tell us things, the picture in our mind’s eye is borrowed from somewhere else. We may have greater expertise that some other people, but we’re still only lawyers.
Maggie,
I agree. I’ve thought about a voir dire question on “favorite TV legal show”. Law & Order fans would be off my jury, Boston Legal fans would be on. CSI fans might be on or off depending on the importance of the lack of CSI-type evidence in the case.
(When I started reading your comment, I was expecting something from YSM so my brain naturally read “Maggie” as “Matlock”. This threw me for a considerable loop when I got to the second sentence of your second paragraph!)
I heard a story once about a young lawyer starting in the public defender’s office and a more senior attorney was very concerned as the new guy didn’t know popular culture well. The more senior lawyer was afraid this ignorance of popular culture would lead to fewer jury wins as he knew that to relate to the jury you had to get your nose out of the law books and know popular culture. Later the two found they worked together well. In fact, they bachieved success working together, even writing a book and founding the Innocence Project. Scheck was the more senior attorney and Neufeld the “new guy.”
The point is that Barry’s instincts were correct as knowledge of popular culture helps you relate and lack of it is almost like a language barrier.
As far as Law and Order as an influence, I used to worry that the net effect was negative for defense attorneys as we’re usually portrayed as either incompetent bottom feeders or highly skilled immoral sharks. But then I heard a defense attorney describe the fact that juries, who hear frequently via popular culture about DNA and other scientific tests, can be more easily swayed in cases in which these tests aren’t done by an argument that stresses how the government could have proven this case BRD with a simple, now widely known, test but because they didn’t perform one, the burden isn’t met.
In other words, perhaps even when popular culture is a wind blowing in our faces, perhaps we can tack into it successfully by not only knowing it, but also knowing its effects better than the state does.