In general, attorneys enjoy a good Hollywood courtroom drama just as much (or even more so) than the rest of us — they just appreciate it on a different level. Besides the baseline satisfaction of munching popcorn to the highly-dramatic twists and turns of a good legal potboiler, they get to enjoy a hearty laugh at the numerous courtroom gaffes and mangled interpretations of the law that inevitably pop up within. For a bit of post-Halloween, pre-Thanksgiving fun, here are three of our favorite fictional Hollywood film lawyers who are portrayed as legal eagles, but who wouldn’t last very long in a real court of law.
(Note: Plot spoilers follow for all the films discussed, so if you haven’t seen one or more of the movies in question, you may want to avoid those sections of this article.)
1. Tom Cruise’s Strategy Is Suspect in A Few Good Men (1992)
The character: Lt. Daniel Kaffee (Tom Cruise) ― an inexperienced, overconfident, and cynical young U.S. Navy lawyer who is assigned to defend two Marines charged with killing a troublemaking fellow Marine.
The plot: After mostly getting his butt kicked in court throughout the film, Kaffee redeems himself by calling Col. Nathan Jessup (Jack Nicholson) — whom he suspects ordered the murder — as a witness and catching him in a lie.
Kaffee then proceeds to goad the flustered Jessup into confessing that he orchestrated the whole murder in open court, which he accomplishes by shouting at the witness that he wants “THE TRUTH!” while ignoring a sustained objection as well as increasing warnings and eventually a contempt charge from the judge. The judge is so impressed by this display of grit and heart that he forgets about the whole contempt issue, and Kaffee’s clients are exonerated while Jessup gets arrested.
Why he’s bad at the law: First of all, plowing ahead with a line of questioning through a sustained objection, admonishments from the judge, and even a contempt charge is a terrible strategy in court. If you could get away with that, then things like objections and judges would be relatively useless in our legal system and every attorney would ignore them.
Even if you got the information out that you wanted by going renegade in court, the judge can instruct the jury to disregard any testimony that came from a disallowed line of questioning. The judge could even declare a mistrial if they felt the improperly-obtained testimony had prejudiced the jury beyond repair.
In real life, this scene would have most likely ended with all of the incriminating testimony stricken from the record and Kaffee being led away in handcuffs, staring at a contempt of court charge (which is an actual legal charge that can lead to fines and jail time, not just something the judge says when they’re irritated with you, as it seems to be in this film).
Second, hanging your entire defense strategy on someone incriminating themselves in court is also a really bad plan because the Fifth Amendment to the U.S. Constitution allows any witness to decline to answer questions without penalty if the answers might lead to self-incrimination.
In real life, all Jessup has to say to answer Kaffee’s question is that he pleads the Fifth — which may look bad to jurors, but it certainly doesn’t provide enough evidence to win a case in slam-dunk fashion. (And yes, the Fifth Amendment applies in military court too.) In fact, if a judge thinks jurors might view a Fifth Amendment assertion as proof of guilt, he or she may even take steps to make sure the jury doesn’t find out that a witness invoked the Fifth Amendment — as Judge Lance Ito did when Detective Mark Fuhrman famously asserted the Fifth during the O.J. Simpson trial.
Heck, the judge in this scene even tells Col. Jessup he doesn’t have to answer the question that ends up undoing him. While the movie implies that Kaffee knew Jessup’s massive ego would override his instinct for self-preservation and make the strategy work, in reality, any attorney would know this tactic could only pay off if you’ve hit the Mega Millions jackpot of self-destructive witnesses.
Admittedly, though, “I assert my Fifth Amendment privilege” just doesn’t have the same dramatic ring to it as “YOU CAN’T HANDLE THE TRUTH!”
2. Tommy Lee Jones Doesn’t Understand Double Jeopardy in Double Jeopardy (1999)
The character: Travis Lehman (Tommy Lee Jones) is a weary parole officer and former law professor.
The plot: Libby Parsons (Ashley Judd) is an innocent woman who is wrongfully convicted for her husband’s murder. In reality, the husband is a con-man who faked his own death and framed her to collect on a life insurance policy, which she pieces together during the first half of the film.
While serving time, a fellow inmate informs Parsons that, if her husband really is still alive, she can now take revenge on him with impunity since the Double Jeopardy Clause of the Fifth Amendment says you can’t be tried for the same crime twice.
Later in the film, Parsons casually asks Lehman, her parole officer, about this little legal loophole and he confirms it: She now has a license to kill. She proceeds to go after the treacherous jerk and exact her revenge.
Why he’s bad at the law: For all of the flaws that exist in our imperfect legal system, lawmakers and jurists generally try not to engineer situations where someone just gets a free ticket to commit murder with no possible legal consequences. If the legal doctrine of double jeopardy actually worked this way, someone who was convicted of, say, assault would then have a lifetime license going forward to assault the victim whenever they felt like it without fear of prosecution. And if a Hollywood screenwriter came up with such a scenario based on an interpretation of the law, you can probably bet that a legal expert thought of it at some point long before that.
In reality, double jeopardy only means that you can’t be tried again on criminal charges arising from the same criminal incident after you’ve been found guilty or not guilty. If you commit a whole new crime in a separate incident, you can be charged and tried for that criminal act just like any other. The fact that Parsons’ husband was presumed dead after her earlier conviction wouldn’t affect this in the least.
Not only that, but Double Jeopardy takes the protagonist on a whirlwind chase that culminates in New Orleans, while the original crime took place in Washington state. Double jeopardy only applies to being tried again in the same jurisdiction, which means that being tried for the same criminal incident by a court in another state or a federal court isn’t out of the question.
In other words, Ms. Parsons would be in for a much more complicated case than she expects after she strolls off into the sunset at the end of the film. And you should definitely not heed any legal advice from Tommy Lee Jones’ character in this movie.
3. Al Pacino Has a Courtroom Conniption in …and Justice for All (1979)
The character: Arthur Kirkland (Al Pacino) — a young defense attorney who is blackmailed into defending the unethical Judge Fleming, whom he despises, against physical and sexual assault charges. (The blackmail is based on an old violation of the attorney-client privilege that Fleming knows about.)
The plot: After having suffered a number of dispiriting professional disasters throughout the film, Kirkland is pushed past his breaking point when Fleming freely admits his guilt during an attorney-client conversation, and after he also discovers that Fleming is bribing witnesses to create a fake alibi.
As the trial begins, Kirkland completely snaps and uses his opening statement to declare that Fleming is guilty in open court. When the judge tells Kirkland he’s out of order, he screams back with a famously manic reply: “YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER! THE WHOLE TRIAL IS OUT OF ORDER!”
Kirkland is hauled out of court ranting and raving by the bailiffs, but Fleming is shown burying his head in his hands, implying that Kirkland has irreparably damaged his case.
Why he’s bad at the law: Well, turning on your own client and declaring their guilt in court is pretty much the definition of a bad attorney. Not only that, but it’s a not very intelligent way to take a moral stand, either, because absolutely none of Kirkland’s rage-fueled tirade in this scene would be admissible in any kind of legal proceeding against Judge Fleming. All Kirkland’s outburst would accomplish is to get him sanctioned and probably disbarred for legal malpractice and to cause an immediate mistrial, followed by Fleming getting a new (and presumably more stable) lawyer.
All of this is pretty unnecessary, by the way, because American Bar Association (ABA) rules actually prohibit attorneys, whether they’re representing the plaintiff or the defendant in a case, from making knowingly false statements, failing to correct statements they know are false, or offering evidence they know to be false.
If a witness — anyone except the defendant themselves in a criminal matter — is going to give false testimony or if false evidence is going to be introduced, and an attorney knows it, they’re allowed to (and even required to) notify the judge. This is true even if said testimony or evidence appears favorable to their own client. The judge could then declare the false testimony or evidence inadmissible in court.
Instead of following the bar rules and availing himself of the safeguards against unethical conduct, though, Kirkland indulges in an emotional meltdown which only serves to guarantee that what he knows is absolutely never going to help the assault victim or the court.
And, really, it’s hard to have much sympathy for Kirkland here, since he’s only in this bind because he’s getting blackmailed over a serious ethical violation in the first place. Maybe don’t violate attorney-client privilege and then conceal it from the bar next time.
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American Bar Association, Center for Professional Responsibility. (2016). Rule 3.3: Candor toward the tribunal. Model Rules of Professional Conduct. Retrieved from http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html
Couric, K. (Reporter). (1999, October 5). Alan Dershowitz Discusses Double Jeopardy Clause in Fifth Amendment [Television series episode]. The Today Show. Retrieved from https://highered.nbclearn.com/portal/site/HigherEd/browse/?cuecard=34340
Fifth amendment: An overview. (n.d.). The Legal Information Institute at Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/fifth_amendment
Margolick, D. (1995, September 8). Judge Ito says Simpson detective doesn’t have to face jury again. The New York Times. Retrieved from http://www.nytimes.com/1995/09/08/us/judge-ito-says-simpson-detective-doesn-t-have-to-face-jury-again.html?pagewanted=all