Colorado Springs Criminal Defense Game – Spot The Violation, Take A Shot

By October 22, 2008Criminal Defense

I don’t really like watching legal shows on television. I don’t enjoy legal shows for the same reason many medical practitioners dislike “House”: they get everything wrong. Wrong legal decisions, wrong procedure, wrong ethics. Take last night’s episode of “Raising the Bar,” the new legal drama on TNT, for example. Every other minute one of the attorneys was committing a new ethical violation, without apparent consequence. Prosecute someone you don’t actually think is guilty? No problem. Trade away one client’s constitutional rights to benefit another client? Why not? Play a judicial role in your lover’s criminal matter? Yeah, okay, even the characters thought that one was taking it all a bit too far. While all that drama might make good material for a drinking game – spot the violation, take a shot – it creates frustrations for the practicing attorney.

Like it or not, people come into the real judicial system with expectations created by popular entertainment. Usually those expectations are way off base. As a deputy district attorney in the past and as a criminal defense attorney more recently, I’ve had to sit across the table from a victim, a witness, or someone accused of a crime and dispel those false expectations. And it ain’t easy to convince someone they don’t know what they “know.” You know?

For example, how many times has someone said to me, “The police officer didn’t read me my rights. Can I get my case dismissed?” Can you get your case dismissed? Well, maybe, but probably not, lots of emphasis on “probably not.” It seems like every arrest on TV involves the officer reciting the suspect’s Miranda rights as he slaps the handcuffs on. Real life usually goes a little differently. According to the Supreme Court, the police do not have to read you your rights unless you are in custody and they intend to interrogate you. That means if you talked to the police out of custody – say, standing on the side of the road or at a friend’s house, for example – they don’t have to tell you that you have the right to remain silent. (Incidentally, if you don’t know by now that you have the right to remain silent, I suspect either you’re a recent immigrant or else there’s no hope for you). Also, if the police arrest you and don’t care to hear your side of the story, they don’t have to read you your Miranda rights as they haul you off to jail.


If that whole example seems like too much of a downer, consider this common misconception: “Violators will be prosecuted to the fullest extent of the law.” Even the mainstream news gets this one wrong, since I often hear on my morning radio show that Ms. So-and-so-first-time-felony-offender is looking at up to X number of years in prison. Let’s be straight: very few people get prosecuted to the “fullest extent of the law,” and those who do are almost always murderers or repeat offenders. The reasons for this should be clear. From a practical standpoint, there are too many thousands of people passing through our local judicial system to impose anything close to the maximum on everyone; there simply aren’t enough courtrooms, judges, or beds in the jailhouse. That’s why over 95% of all cases get plea bargained to something less than “the fullest extent of the law” (more on this subject next month). It also makes sense to show leniency from a “justice” standpoint. Take the case of one well-known first time felon: Jean Valjean committed a B&E (a class 4 felony in Colorado) when he broke a window pane and stole a loaf of bread from a bakery. If prosecuted here, today, to the fullest extent of the law, Valjean would be looking at a maximum of 2 to 6 years in the Colorado Department of Corrections. In the story, he received 5 years hard time. In real life, the absolute most he’d ever be likely to actually receive on his sentence, even without the benefit of a plea bargain, is probation. Of course, probation would have shortened Victor Hugo’s novel considerably.

The good thing, I suppose, is that when I know what someone’s faulty expectations of the judicial system are, I can usually correct them. I do worry though about those folks who try to handle their cases (especially felony cases) without an attorney to tell them the difference between real life and entertainment. After all, you wouldn’t try to do your own surgery just because you saw someone do it on “Grey’s Anatomy.”
So please, watch television responsibly and don’t expect real life to resemble “Law and Order” or, even worse, “Boston Legal.” Oh, and don’t expect me to be able to resolve your case in an hour.

Caryn J. Adams
Attorney at Law