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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The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:

The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:

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The book, "Silence of the Lambs," by Thomas Harris, was published in 1989.  The movie was released in 1991.  Both the book and movie hold up well over time.  They are just as engaging and creepy today as when they were released.

Clarice Starling (played by Jodie Foster in the movie) is an FBI trainee who is sent to meet with convicted serial killer and cannibal, the brilliant psychiatrist Hannibal Lecter (Anthony Hopkins).  The FBI is hunting a new serial killer known as Buffalo Bill, and they hope Dr. Lecter will open up to Starling and provide some insight.

Dr. Lecter does have information on Buffalo Bill, but he will not give it up before forcing Starling into a quid pro quo to get personal information from her.  Much of the story's force comes from the relationship between Starling and Dr. Lecter.  The desire to save Buffalo Bill's latest victim (who happens to be a powerful Senator's daughter) makes the situation urgent for the FBI.  But Dr. Lecter has all the time in the world.

Both the book and movie are smart and scary.  The book provides a little more detail and background.  But the parts changed or left out of the movie mostly made it better.

The movie won several Academy Awards, including all of the top five categories:  Best Picture, Best Actor for Anthony Hopkins, Best Actress for Jodie Foster, Best Director for Jonathan Demme, and Best Adapted Screenplay.

This is one of my top favorite movies of all time.  Check out the movie and book here:

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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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The American Bar Association released a list of what its panel of judges has determined to be the 25 Greatest Law Novels Ever.  Here are a few of my favorites that also made their list:

To Kill A Mockingbrid by Harper Lee is one of my favorite all-time books - law or not.  And I'm certainly not alone.  Harper Lee won the Pulitzer Prize for this novel, and Gregory Peck won an Oscar for his protrayal of Atticus Finch in the movie version.  Atticus defends a black man accused of raping a white woman in depression-era Alabama.  This story has themes of race, class, and justice, but it is told through the eyes of a child.  If you haven't read it since high school (or maybe never did), it's worth another look. 

Crime and Punishment by Fyodor Dostoyevsky is an fascinating psychological study in guilt.  The main character's increasing paranoia after committing murder is something that has stayed with me for years.

A Time to Kill by John Grisham is my favorite Grisham book.  This was his first book.  It is based on a real-life case.  The book is a story of race and revenge in the south with great characters.  The movie (starring Matthew McConaughey, Sandra Bullock, and Samuel L. Jackson is also excellent.

The Firm by John Grisham is not my favorite Grisham book (that award goes to A Time to Kill), but it's an exciting read.  A top graduate from Harvard Law School, Mitch McDeere is recruited to a high-paying job with great benefits.  He soon discovers that his new firm is a cover-up for serious criminal activity, and that his life and career are on the line.  The movie starring Tom Cruise is a faithful rendition of the book.

Presumed Innocent by Scott Turow is about a prosecutor accused of murdering his colleague/mistress.  This was Turow's first novel, and it's filled with political intrigue and legal maneuvering.  The movie starring Harrison Ford is a great rendition of the book.

The Stranger by Albert Camus revolves around the murder trial of Meursault. Meursault's lack of emotion is interpreted as a lack of remorse, and he is condemned to the guillotine.  But facing death, he finds himself oddly comforted by the simple fact of his own life.

And here are a few on my To-Read List:

Anatomy of a Murder by Robert Traver is based on a real life case.  A man kills his wife's rapist and claims the insanity defense at trial.  Robert Traver was the pen name of a Michigan Supreme Court Justice, John D. Voelker.  I've used the movie (starring James Stewart and directed by Otto Preminger) in my criminal law and procedure classes as a tool to teach the insanity defense.

Native Son by Richard Wright is also based on a true story.  It follows the life of Bigger Thomas, a young Chicago black man whose discomfort with whites drives him deeper and deeper into trouble for reasons he cannot seem to explain, and results in him being condemned to death for two murders.

And Honorable Mention goes to:

In Cold Blood by Truman Capote is a nonfiction true crime book written in the style of a novel.  It was one of the first to be written this way, and it remains one of the best.  For a great behid-the-scenes look at both this book and To Kill a Mockingbird (above), check out the movie Capote.   Philip Seymour Hoffman won an Oscar for his prtrayal of the author.

Do you agree or disagree with these choices?  Let me know!

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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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Sorry this is a bit off topic, but I'm going to Hawaii this week, and I've got it on the brain.  Here are my favorite movies set in Hawaii (in no particular order) - I could stretch to find tie-ins to crime and law in each of these, but I wouldn't consider any to be truly legal drama or crime movies.  Just some good movies set on a beautiful island.

(Click the pictures to check out the movie.)

The Descendants
(George Clooney)

Forgetting Sarah Marshall
(Jason Segal, Russell Brand, Kristen Bell, Mila Kunis, Jonah Hill, Paul Rudd)

And, of course, no list of Hawaiian movies would be complete without Elvis...
Blue Hawaii
(Elvis Presley)

And because it's the only decent crime show set in Hawaii, honorable mention goes to:
Hawaii Five-O

Okay, that's it, one of you needs to write a good legal drama set in Hawaii!  Who's in??

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I am developing recommendation lists of the best all-time legal movies (drama and comedy), best crime movies, best legal and crime TV, best legal and crime novels, and best true crime books. 

This is a work in progress, but I wanted to post the movies I have listed so far.  Check it out:  Best Legal and Crime Movies

Feel free to let me know your thoughts on my lists, and let me know what your favorites are!

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