There is a joke about why lawyers use complicated language, sometimes called legalese:
So they can charge higher fees.

There may be a little bit of truth in that, but the full answer is, well, more complicated.

One of the reasons the law is often written in complicated or hard-to-understand language is because of the way law develops.  In the United States, we use something called stare decisis.  (That's pronounced starry de-sigh-sis.)  Stare decisis means that we look at past cases to help us interpret the law today.  

This helps maintain consistency throughout time and helps lawyers and litigants predict the outcome of their own case.  Those are good goals.  But one of the downfalls of stare decisis is that words and phrases from hundreds of years ago - like stare decisis - stay with us.  

Another reason the law is so complicated is that sometimes lawyers will disagree about what a word or phrase means.  If a word or phrase or phrase can be interpreted in more than one way, more words will need to be added to make sure it is interpreted as intended.  A misinterpreted word can lead to huge unintended consequences.

A good lawyer who is writing a law or other legal document will try to think of every possible way the document could be misinterpreted in the future.  The lawyer then has to write more into the law or document to guard against these possible future misinterpretations.  As words and phrases are misinterpreted in laws and documents, over time, lawyers will include all the possible guards against all the possible misinterpretations that exist or might exist in the future.  This is how a short sentence can turn into a page-long paragraph.

A third reason the law sounds so complicated is because terms of art have developed over time.  A particular word or phrase might have a specific meaning in the law that is completely different than what it means outside the law.  

An example of this is the word "continue."  In everyday, to continue something means to keep going.  But in court, to continue something means to put it off for another day or time.  For example, a lawyer might ask to continue a hearing until the afternoon because she has a more pressing appearance scheduled in another courtroom that morning.

Or a word might not be used in everyday life, but it might have a well-known and easily understood meaning in the law.  These words and phrases are often in Latin (see "stare decisis" above).  These uses of words often provide shortcuts for lawyers, but they can make the law sound confusing and complicated to a nonlawyer.

Legal movies and television can use these words to great affect.  A memorable scene from "Legally Blonde" is a great example of this.  Elle (Reese Witherspoon) squares off against her rival in a discussion of the differences between the terms malum prohibitum (a regulatory crime) and malum in se (a dangerous crime).

Finally, another reason the law is so complicated, especially in criminal law, is because of a little thing called the Constitution.  The Due Process Clause of the Constitution requires fundamental fairness.  This means that a criminal defendant must be put on notice of possible crimes he may commit.  This, in turn, means that criminal laws cannot be vague or overbroad or they will be held unconstitutional.  Law are often written in a complicated way to try to prevent that from happening.

The Due Process requirement of fundamental fairness also means that any ambiguity in a criminal law will be interpreted in the defendant's favor.  That is called the rule of lenity (another phrase from centuries ago).

An example of the rule of lenity is found in United States v. Santos, 553 U.S. 507 (2008).  The U.S. Supreme Court discussed the possible definitions of “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956.  Specifically, the Court discussed whether "proceeds" covers criminal receipts or profits.  The Court stated:

So, if Congress wanted to include both receipts and profits in its definition of proceeds, it would have to amend the law to include those specific terms.  And the law just got more complicated.

The next time you hear someone ask why the law is so complicated, you can give a lawyer's favorite answer to any legal question:  It depends.

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Although it is an older movie, "Presumed Innocent," starring Harrison Ford, is educational and can be used to teach many legal lessons.  It can be effectively used as part of a legal ethics or criminal law and procedure class. 

The basic premise of the movie is that Harrison Ford's character, Rusty Sabich, is an assistant district attorney who is accused of murdering his colleague and lover.  His boss, the elected district attorney, played by Brian Dennehy, assigns Rusty to handle the investigation into Carolyn Polhemus' death (played by Greta Scacchi).  Along the way, he hides his relationship with her, destroys evidence, learns that the boss was also sleeping with her, and winds up accused of murder. 

Right away, there is a conflict of interest.  Probably the District Attorney's Office handling the investigation at all would be a conflict, especially in a smaller office like the one depicted in the movie.  Normally, such a case would be handled by the state Attorney General's Office.  Rusty has an even greater conflict than Carolyn's other colleagues because he had an illicit affair with her.  Rusty does not disclose his affair to his boss (even when the boss confides his own affair to Rusty), which creates a greater appearance of impropriety.

The movie does a good job of showing the different roles and obligations of prosecutors and defense attorneys.  The main character is a prosecutor who is charged with a crime.  The movie shows his interactions with his hired defense attorney, played by Raul Julia.  It shows advice given by the defense attorney to his client, like pleading the Fifth in the grand jury, even though his client may not want to take it.  It also explains why he should do so even though it will make him look guilty - you don't want to give the prosecution pre-trial statements to use against you.  The movie also shows strategic decisions made by the defense attorney along the way.

There is a part in the movie where the prosecutor wants to put in evidence statements that Rusty made to him.  The judge correctly rules that the the prosecutor will not be permitted to testify in the case unless he steps down as prosecutor and lets someone else take over the case.  This points to a key mistake that many books, TV shows, and movies make, which is having the attorney investigate crimes and question witnesses alone.  That's what investigators are for.  (Learn more about this in my free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.)

"Presumed Innocent" also shows the practical reality that sometimes things outside the courtroom can make all the difference in the outcome of a case.  (SPOILER ALERT)  In that case it was the defense attorney's knowledge of the trial judge's past unethical behavior that gave the defense an edge. 

The movie can be used as a good example of how to show probable cause to get a search warrant.  In the movie, the police had Rusty's fingerprints on a glass in Carolyn's apartment, phone records showed many calls between Rusty and Carolyn, including one call the night of the murder, Rusty's blood type matched semen found inside the victim (the book and movie were pre-DNA), and unknown carpet fibers were found in the victim's apartment. 

NOTE, however, that the police in the movie choose not to search for a murder weapon.  In reality, the police will always search for a murder weapon at the home of their primary suspect.  (The reason this is done in the movie is because a twist at the end revolves around discovery of the murder weapon.)

Finally, there are two incidents in the movie where Rusty destroys evidence.  That is obviously a big no-no -- for an attorney or anyone else. 

This is one of the few examples of a movie that gets most of the legal stuff right.  (It would probably be my second choice of an accurate legal film after My Cousin Vinny.)  It is also a compelling story that stands up to the test of time.  The book upon which the movie is based, also called "Presumed Innocent" by Scott Turrow, is excellent as well.  (Click below to check out the movies or book.)

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A recent Grey's Anatomy episode, "Sorry Seems to Be the Hardest Word" (season 10, episode 9), made it clear that the show should stick to medicine and stay out of the courtroom.  Or at least hire a legal consultant when a storyline turns legal.

In the episode, Calley went to trial in a medical malpractice case.  The mistakes throughout the episode were many and cringeworthy. 

To start with, a period of four months supposedly passed between the time of the act of malpractice (a hip replacement surgery that ended with both legs amputated from an Olympic snowboarded) to the time of trial.  Four months!  Anyone who has had even the slightest interaction with America's court systems knows that nothing moves that quickly.  Least of all a civil lawsuit involving detailed medical information that goes to a jury trial.  Four years would be slightly more realistic.

But, I understand there are more important time needs in the story, so I'll move on.  An even more flagrant problem, and one that had no requirement in teh story, was the confusion between a civil lawsuit, which this was, and a criminal prosecution, which this wasn't.  The writers do not seem to understand something very basic that most Americans should know about their legal system.

There are two completely separate and different legal systems in our country.  Civil cases are where people (or corporations or governments) sue other people (or corporations or governments) for some wrong.  If the person suing (plaintiff) wins, they are usually awarded money.

Criminal cases are where the government (and only the government), whether state, city, or federal, charges someone with a crime.  If the government wins, the defendant might be fined, and/or be sent to jail or prison, or in some cases even be put to death.

The terms used in each of these two systems are often different.  And this is where Grey's Anatomy got so embarrassingly off-track.  After the plaintiff's attorney finished questioning a witness, he exclaimed, "The prosecution rests."  Since this was a civil lawsuit, there was no "prosecution."  There was only a plaintiff. 

SPOILER ALERT  At the end, when the verdict was read, the jury foreperson announced, "Not guilty."  Again, since this was a civil suit, no one could be found guilty or not guilty.  Those terms are only used when someone has been charged with a crime.

There were several more minor errors throughout the show.  Most of these problems could have been easily corrected by having a legal consultant read through the script and/or be present for filming. 

The result of so many basic and easily-fixable errors was that the show looked poorly researched and inauthentic.  If their medical errors are as bad as their legal ones, I have to seriously question this show's credibility.  Not that a medical or legal show has to bee 100% accurate, but such basic mistakes can seriously undermine the show.

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A common question that is asked is what is an alibi defense?  An alibi defense is a classic example of a type of defense called failure of proof defenses.

The easy explanation of an alibi defense is that the defendant claims he was somewhere else when the crime occurred.  To assert this defense in court, the defendant must generally bring forward some proof - a receipt, time-stamped photos, credit card charges, or a witness who saw the defendant.  The stronger the evidence that supports the alibi, the more likely such a defense will be successful.

Once the defendant has asserted an alibi defense and put on some evidence of it, the burden shifts back to the prosecution to prove the defendant was the person who committed the crime and was in the place where the crime was committed. 

Of course, it is the prosecution's burden of proof to begin with to prove beyond a reasonable doubt that the defendant was the person who committed the crime.  However, if the defendant puts on some alibi evidence and the prosecution is unable to rebut it, the defendant may be entitled to an acquittal (a finding of not guilty).

There is of course a big difference between the defendant's mom or wife testifying that he was with her the entire night (the most common alibi evidence), and a security camera capturing the defendant's image miles from the crime scene at the time the crime took place.

I once had a case where the defendant's wife had a long explanation about how she knew the defendant was with her the night of the robbery because they had signed loan documents that night, which were dated.  However, it later turned out the robbery occurred the night after the loan documents were signed.  The wife still testified her husband was with her that night, but after the passage of over a year, she was unable to bring forward any more specific proof.  He was convicted of the robbery.

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Also, get a free printable and portable Miranda Card, detailing the Miranda rights as read by the police.

When someone is in police custody, and the police want to question that person, the suspect must first be read their Miranda rights.  The suspect must then waive those rights before police may question him or her.

The Miranda rights are based on a United States Supreme Court case called Miranda v. Arizona, 384 U.S. 436 (1966).  That case basically held that a suspect or criminal defendant must be informed that they have certain rights, and must give up those rights before the police may question them.  This was done to counter police abuse and misconduct, which was often done to get someone to confess.

In movies and on TV, the Miranda rights are usually read as soon as someone is arrested.  This is unnecessary unless the person is going to be immediately questioned.  The rights need not be read to someone until he or she is going to be interrogated by law enforcement.

So, what exactly do the police need to say?  Here is a safe way for police to read someone their Miranda rights and get a valid waiver, so that whatever the person says can later be used against him in court:

1.  You have the right to remain silent.  Do you understand?

2.  Anything you say may be used against you in court.  Do you understand?

3.  You have the right to the presence of an attorney before and during any questioning.  Do you understand?

4.  If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.  Do you understand?

5.  Do you wish to waive these rights?

The police should try to get a "Yes" answer to each question to ensure the person understood and voluntarily waived each of his rights. 

Sign up here to get a free printable and portable Miranda Card that has this information in a convenient and easy to use format:

The Miranda Card lists the rights as statements that a police officer would say them to a suspect.  The card is small enough to cut out and carry in your pocket.  Many police officers carry a card like this and use it to ensure they properly advise a suspect of his or her Miranda rights, and get a valid waiver. 

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This is an almost daily scene in television and movies:  An undercover police officer begins discussing an illegal transaction with a known criminal.  The criminal asks, "Are you a cop?"  Of course, the police officer says he is not.  The criminal is satisfied, and they conduct their illegal transaction.

In real life, if an undercover police officer is asked whether he or she is a cop, do they have to tell the truth?  The short answer is no. 

Police officers are allowed to lie to suspected criminals.  The police officer who lies and says he is not a cop will not get in trouble, and any evidence he collects as part of the undercover operation can be used in court.

I have sometimes been asked, isn't it entrapment when a police officer lies and says he is not a cop?  Again, the answer is no. 

Entrapment generally occurs when a police officer (or other government agent) induces the defendant to commit a crime he would not have otherwise committed.  Simply providing someone the opportunity to commit a crime is not entrapment.  Certainly telling someone that he or she is not a cop would not induce someone to commit a crime they would not have otherwise committed.

So, why do television shows and movies always do this?  I don't have a good answer for that.  Maybe it's an easy way to show the criminal is suspicious of the undercover cop.  Maybe it's laziness or ignorance on the part of the writers.  One thing is for sure:  it is overused and suggests an incorrect legal standard.

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It is common advice given to new lawyers in trial:  Never ask a question you don't know the answer to.  The idea is that you don't want to be surprised by a witness and have someone (intentionally or unintentionally) torpedo your case from the witness stand.

The following legendary story of grandma going to court illustrates this concept in a funny and unexpected way:

(Unfortunately, this story isn't true.  http://www.snopes.com/legal/grandmacourt.asp.)

Of course, in real life, attorneys are not usually afraid of the witness revealing embarrassing information about them, but are concerned the witness will say something unexpected about the evidence that effectively ruins the attorney's case.  This can happen as a result of lack of proper preparation.  Or, in criminal cases, it can happen because of little or no opportunity to talk to the witness before trial.

A victim or witness is not required to speak to or cooperate with the attorneys on either side of a criminal case.  Unlike in a civil case, there are usually no depositions or interrogatories, or other opportunities to question a witness before trial.  The witness may have been questioned to some degree during a grand jury proceeding or preliminary hearing.  But often a criminal attorney has to rely on statements the victim or witness previously made to police or others. 

That is why, in the field of criminal law, it is a myth to suggest that a lawyer should never ask a question to which she does not know the answer.

For an example of why an attorney should not ask a question without first knowing the answer, check out the Academy Award winning movie "Anatomy of a Murder" with George C. Scott and Jimmy Stewart:

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As discussed in a prior post, the criminal justice system can be broken down into 6 stages.  Knowing what happens in each stage, and the people, procedures, and rights involved, is critical to understanding and writing about it.

The first stage is the Crime Stage.  This is basically when the crime occurs, and it is the key to any trip through the criminal justice system.

A crime may be instantaneous or it may be continuing.  Examples of instantaneous crimes are most murders or robberies.  A continuing crime, however, is usually a more complex scheme or criminal enterprise, such as a drug dealing operation or a ponzi scheme.

Generally, the people involved at the crime stage include the person or people committing the crime, the victims of the crime, and any witnesses to the crime.  If a police officer or federal agent is undercover, the crime could involve that person as well.

The setting for the crime stage can be literally anywhere, from a board room or bedroom to a back alley, outer space, or cyberspace.

An example of a movie that is entirely focused on the crime stage is Ocean's Eleven.  In that movie, the key characters are the criminals (led by Brad Pitt and George Clooney), as well as the target victim (Andy Garcia), and his casinos.  The majority of the movie is spent following the criminals as they recruit others to participate in and fund the crime, plan the crime, and finally execute it.  

The crime stage begins when the crime is committed or when the criminal scheme or enterprise begins.  It ends when the crime is completed or is stopped (by arrest or some other means).

In Ocean's Eleven, the movie begins at the beginning of the crime stage, with George Clooney conceiving of the crime, an extremely complex theft of a casino vault.  The movie ends after the crime has been completed.

(If you've never seen Ocean's Eleven, or don't own it, click on the pictures below to check it out.)

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What is required to prove a criminal defendant is legally insane?  Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane.  It is important to note that the insanity defense is rarely used and has even been abolished in some states.

Insanity is generally considered an "excuse" to committing a crime.  An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant.  

Insanity is also considered to be an "affirmative defense."  An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it.  For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true.  

Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question.  Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence.

In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime.

The focus of determining a defendant's sanity is his mental condition at the time of the crime.  (This is one way the test for insanity is different than the test for competence to stand trial.  For a discussion of the differences between sanity and competency, check out this prior post.)

To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime.  Generally, the mental disease or defect may be permanent or temporary.

The M'Naghten Test

The defendant's mental condition must satisfy the legal standard for insanity.  The M'Naghten test is traditionally the most commonly used  test to determine insanity.  Under the M'Naghten test, a person is considered legally insane if: 

1.  at the time of the crime
2.  he suffered from a defect of reason that resulted in him either
     a.  not knowing the nature and quality of the act he performed, or
     b.  not knowing his act was wrong.

A defendant knows the nature of his act if he knows what act he is performing.  He knows the quality of his act if he understands the consequences that flow from his act.

For example, a woman is charged with murdering her baby by drowning.  To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning.

Alternately, the defendant can show she did not know that her act was wrong.  The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state.

In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong.  This would be an example of a moral wrong.

Insane Delusions

If someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion.  If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense.  If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane.

For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen.  The victim pointed the pen at the defendant, who believed he was about to be shot.  The defendant pulled out a gun and shot the victim.  The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense.

However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them.

Irresistible Impulse Test

The irresistible impulse test is sometimes used in conjunction with the M'Naghten test.  Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions.

It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions.  (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.)

Model Penal Code Test

Another test for insanity is set out by the Model Penal Code.  Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to:
1.  understand the criminality or wrongfulness of his conduct, or 
2.  to conform his conduct to the law.

This is sometimes called the "policeman at the elbow test."  In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law.

A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses.  Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime.

To understand the differences between insanity and competency to stand trial, click here.

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