Streaming shows and movies have a way of skewing our view of the law, particularly when that entertainment portrays criminal lawyers. Virtually all of us have grown up on cop shows. We’ve known—or, at least, we think we’ve known—what it means to be a criminal defense lawyer since we saw our first criminal defense TV law show or movie. Defense attorneys themselves are not immune to this fantasy la-la land.

Countless times I’ve heard colleagues talk about their once-in-a-lifetime “Perry Mason” moments while prosecutors deride the “CSI effect”—the purported requirement among jurors that prosecutors produce highly scientific evidence like DNA, fingerprints, or shoe impression evidence, even if their cases are, in their view, provable without it. These are criminal lawyer TV show references.

Perry Mason was a television defense lawyer—often, it should be added, propped up by his private investigator, Paul Drake coming in at the last minute with crucial evidence to support the criminal defense.

In its heyday, CSI portrayed astonishingly well-funded crime labs using cutting edge technology and state of the art science to solve complex and intractable criminal law whodunnits. Prosecutors bemoaned the fact that CSI raised the bar scientific evidence required to convict a criminal defendant.

Side note: an Iowa medical examiner was a consultant on one of these shows. If prosecutors complain now that it unrealistically raised expectations regarding the science of prosecution, they only have their own white lab coats to blame.

So clients and potential clients are to be forgiven if they come into a legal crisis with mistaken perceptions and unrealistic expectations about what the law is—and is not.

No quick fix-er.

Universally, clients want a quick and inexpensive fix to resolve their legal crisis. In short, they want a fixer that will avoid a conviction and an expensive jury trial. This is often a fantasy born of TV reruns of Law and Order.

Every television show has an antagonist. Not just lawyer shows.  In Hawaii 5-0, it was Wo-Fat, mastermind criminal and spy. To fuel this antagonism—and advertising—Wo-Fat had to be very nearly Detective McGarrett’s equal, highly trained and recurring nemesis.

This dynamic also exists in criminal law shows. The prosecutor has to be able to realistically vanquish her peer criminal defense lawyer. So there are often plot twists during an hour of formulaic television that require additional criminal investigation and legal maneuvering to defeat the villain and their criminal lawyer.

Sometimes, to prolong the story, the villain wins and walks out of the courthouse with his Armani-clad defense attorney with a few choice words for the prosecutor. This only fuels the prosecutor’s resolve—and your desire to tune in again next week. Same time. Same channel.

Problem is, it doesn’t work like that in real life. Defects in the investigation and prosecution do exist. But they are very rare because police training is typically thorough and adaptive. As with every job, there are performance metrics.

There is a phrase in the law that helps dissuade those who believe that, among the binary choices of jury trial or plea agreement, there is a third option.

Tertium non datur.

Nothing worth doing is easy. Moreover, there is no third way. There is either jury trial or plea agreement. I do not sell rainbow unicorn fantasies to potential clients or clients about an easy dismissal even if other lawyers do.

No such thing as “Dismissed on a Technicality.”

In keeping with the above, most of us have heard the phrase “dismissed on a technicality.” Because police consult Hollywood—dating all the way back to Los Angeles Police Detectives consulting with the Dragnet radio and television show in the 1950s and 1960s—we’ve grown up on a lexicon of misinformation regarding the operation of the Constitution on the criminal law. When cases get dismissed, police shows tell us that they were “dismissed on a technicality.”

Because this is important I will repeat it. Dismissal on a technicality has happened never. Never in the history of the United States has evidence been excluded, or, suppressed—in common vernacular, “tossed”— because a comma was out of place in legal document or a lawyer ended a sentence with a preposition.

It is true that the Fourth Amendment requires the place and things to be searched to be described with particularity. Moreover, police officers may not execute a search warrant looking for a stolen elephant in a desk drawer. But other than that, it’s Snopes-worthy that a case ever gets “dismissed on a technicality.” If defense lawyers had been consulting with all those police dramas instead of police detectives, the play-acting police chief who comes out to do a press conference about the reason the bad guy walked away free and clear would have to admit that, sadly, her officers did not do the great job they thought they were doing. They instead violated the founding documents of our Nation and the judge had no choice but to exclude illegally collected evidence and dismiss the prosecution for lack of the legally collected variety.

In short, no judge in the history of the United States has ever dismissed a prosecution because of a formatting error in a document—a so-called mere technicality. They only do so when officers violate the criminal constitutional rights of the Defendant. Such defects are fatal to the prosecution to deter police misconduct in the future.

They didn’t read me my rights.

Man, if I had five bucks for every time this comes up. But, again, not my clients’ fault. I blame Hollywood. Moreover, in full disclosure, I fell for this one as a budding new lawyer. It took a a seasoned, grizzled investigator in a cowboy hat to sit me down and ask rhetorically whether I had learned anything in law school.

This was the polite version.

“Miranda means jack.”

He explained: Miranda is required when (1) the suspect is in “custody,” a term of art the judge defines, not clients or lawyers; (2) a police officer interrogates the suspect seeking answers to incriminating questions; and (3) the suspect makes incriminating statements.

Even then, when all three conditions are met, the Defendant does not get the grand prize of dismissal. They get the consolation prize of excising the incriminating statements from the universe of facts available to the jury at trial.

Feeling hurt by this dressing down bv a nonlawyer I looked to my boss standing in the doorway after I made a commotion throughout the office that I “had to get my client released from jail because they didn’t read him his rights.”

“Don’t look at me. He’s right,” said my boss unsympathetically.

Over two decades later, I couldn’t have asked for a better lesson on that subject matter and I am thankful to that now retired investigator and my boss for setting me straight.

Therefore, I do not blame criminal defendants and potential criminal law clients when they usually add to their explanations that, “also they did not read me my rights.” I also suffered from this misconception and own it.

Just remember that Hollywood taught all of us that the last thing an officer does before perp walking the bad guy in handcuffs across his lawn to the police squad car is: read him his rights. Therefore, the Miranda warning has become a set of seemingly required, magic words for every cop show arrest. Because of that formula, no one can be blamed for thinking the arrest would unravel if they forgot to Mirandize the bad guy!

So these are the three most common misconceptions regarding the criminal law. At my criminal law firm in Cedar Rapids, Iowa, we practice a kind of active legal listening. We want to know what your objectives are in the litigation and we strive to reach desired outcomes, within limits and reason, by providing a high level of service, communication, and value. We don't sell sugar-coated unicorn rainbows to grab fees. Here, we tell the truth.

Contact us about your ongoing criminal prosecution in an Iowa courthouse.