Objection: What Film Gets Wrong About Criminal Law

Bob Odenkirk as Saul Goodman in ‘Breaking Bad’/Image © AMC

Each chapter of Adam Benforado's captivating new book could be an episode of "Law & Order": the nineteen-year-old who falsely confessed to a brutal murder, the victim who sent an innocent man to prison with a life sentence when the real perpetrator was standing right next to him in the lineup, the school teacher with a brain tumor who appeared to turn him into a pedophile. In Unfair: The New Science of Criminal Injustice, now available, Benforado reveals the hidden forces that shape the behavior of suspects, detectives, judges, witnesses, experts, and others. His focus is on contrasting the common stories we have about how these people make decisions and where problems arise with what the latest evidence from psychology and neuroscience has to say.

According to Benforado, one of the reasons that the conventional stories are maintained despite being inaccurate is that they are reinforced by television and movies. We sat down with Adam to get the inside scoop on what depictions of prosecutors and defense attorneys on screen get wrong.

SIGNATURE: As a lawyer and criminal law professor, do you find it hard to watch all of the crime dramas that fill up the airwaves? Does it feel like work?

ADAM BENFORADO: No, I love a lot of them! "The Wire," "True Detective," "The Killing," "Broadchurch," "Dexter," "Peaky Blinders" - I'm hooked just like the rest of America. But I do have to turn off the part of my brain that sets off an alarm every time a screenwriter takes liberties. Television shows and movies are about entertainment, not about accurately depicting the work of cops, lawyers, and offenders. That's always a secondary concern.

SIG: Can you give us an example?

AB: Well, real defense attorneys usually want to keep their clients as far away from the prosecution as possible, but on screen it's quite common to have scenes where the two sets of lawyers and the defendant are sitting at a table actively negotiating a plea bargain. Why do writers and directors choose to mislead the audience? It's a lot more dramatic to have the defendant centrally involved: We can watch him squirm in his chair as the prosecution tries one last ploy and cheer as the clever assistant D.A. gets him to reveal some critical incriminating detail about the case. Good defense attorneys work very hard to avoid just such drama.

SIG: What do you think is the most damaging mistake that TV and film make in portraying lawyers?

AB: I think it has to do with ingraining the stereotypes that already exist about lawyers. There are generally two stock attorney characters on screen: the good lawyer, who is utterly principled and works tirelessly for justice, and the bad lawyer, who is amoral, willing to do whatever it takes to win and advance his own interests. The good lawyer is a rare bird, indeed - Atticus Finch, Perry Mason, and Clarence Darrow come to mind. Far more often, we are presented with the bad lawyer - Fletcher Reede, played by Jim Carrey in "Liar Liar," who is a human fibbing machine, or Al Pacino's John Milton in "The Devil's Advocate," who is literally Satan.

SIG: So I see why, as a lawyer, you wouldn't like these depictions - but why are they harmful?

AB: The stock characters are damaging because they present a very misleading picture of dishonesty. Scientists have actually done a considerable amount of research into why people bend or break the rules and that research suggests that dishonesty doesn't come down to bad apples choosing to pursue their own interests. Real lawyers aren't faultless saints and they aren't irredeemable sinners either. They are - like the rest of us - creatures of their situations, influenced by things that make it easier or more difficult to rationalize their behavior. As I explore in Unfair, when real attorneys engage in misconduct, it may often be because of forces beyond their awareness or control.

SIG: What is something a lawyer might do that would be considered misconduct?

AB: A good example is when a prosecutor fails to turn over evidence of the defendant's innocence to the defense team. This is legally required and not doing it can have catastrophic consequences. In one case I discuss in the book, a prosecutor failed to turn over a blood test that excluded the defendant as a suspect, and without that critical evidence of innocence, the defendant was convicted and placed on death row.

SIG: Why would a lawyer do such a thing if he wasn't actually a bad apple?

AB: The psychological research offers a number of possibilities. One thing we know is that people are actually more likely to engage in dishonest behavior when they believe they are helping others than when they believe they are acting selfishly. And prosecutors have a lot of people counting on them - the victim's family, the police officers who worked the case, fellow prosecutors who depend on keeping up conviction rates, the public, and the prosecutor's own family, who will suffer if his career stagnates. In such circumstances, withholding a bit of evidence might not seem like such a bad thing, particularly if you've already convinced yourself that the defendant is guilty in spite of the evidence. Research also suggests that people are more likely to break the rules when the harm from their actions is less direct. When a prosecutor fails to turn over evidence, the effect on the outcome seems much, much more attenuated in comparison to planting evidence or paying off a jury, so it's a lot easier to justify.

SIG: I imagine you know a lot of lawyers; do you think they believe the film stereotypes about attorneys?

AB: My sense is that a lot of them do. And that's really problematic. The onscreen depictions are actually reassuring because most lawyers watch and think, okay, Maurice Levy (Avon Barksdale's slimy lawyer from "The Wire") - that's clearly not me. And I'm not at all like Saul Goodman from "Breaking Bad" either, so I must be totally in the clear. The result is that they don't take care. And then those in charge use the wrong tools to address the problem. Convinced that the source of dishonesty is found in a few bad apples, they ignore the toxic environment in certain prosecutor's offices.

SIG: So, that's the bad news, but do you think onscreen depictions get anything right?

AB: I think the best ones remind us that our criminal justice system is deeply emotional. It's populated by flawed people. It is not some sterile laboratory experiment with legal robots. A lot of my students come to law school thinking that being a good lawyer is all about losing your emotion, looking at the facts - a woman raped in her own home, a child beaten to death by his dad - through a cold and detached perspective and then just applying the relevant law. They mistakenly think it's possible to set aside your background and identity, and your biases, and be truly objective. Even if that was possible, I don't think we want attorneys who don't feel. I think good films help remind us what's at stake in criminal cases. We haven't discussed it, but great documentaries can accomplish the same thing.

SIG: But I imagine we can still run into some of the same problems with documentaries about the world of criminal justice?

AB: You're exactly right. After all, in this day and age, most documentaries are trying to tell a great story too. As we saw with the allegations that "The Jinx" misled viewers in showing footage out of chronological order in the last episode, the pressure to really enthrall the audience can sometimes run up against the need to be completely accurate.

SIG: So, will we be seeing Unfair serialized on HBO anytime soon?

AB: Ha - I actually think that would be fantastic. My agent is standing by.