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Tuesday, August 23, 2016

The Night Of (Updated)

I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.

Some comments (with spoilers, for those of you who are not caught up) after the jump.

Two big evidentiary issues came up in the last episode: Naz's assaults of two high school classmates and his selling Adderall to college classmates. The first seems impermissible--we have not seen any indication that the defense has offered evidence of Naz as a non-violent person or that he was acting in self-defense, so the door has not been opened for the prosecution to offer character evidence, nor do these incidents have any non-character connection to the murder at issue. The second seemed impermissible while I was watching it, just more evidence to show he is a bad person (and through specific instances of conduct on direct, no less). But I think this could come in as preparation or plan--that the drugs they took (which explains why he blacked out or cannot remember his actions) were provided by him, not the victim.

Financial advisers may want to protect their client's confidentiality, but the law does not accord them a privilege akin to that between an attorney and her client. Just subpoena the guy.

Finally, and unfortunately, the show again falls into the trap described by Paul Bergman and Michael Asimow in their book Reel Justice: "Almost without exception, trial movies present women lawyers in viciously stereotypical terms. It's almost as if filmmakers are scared stiff of powerful, successful women." The show fell down this hole on Sunday by having Chandra, the young female lawyer, make-out with Naz--on surveillance camera, no less, and for no discernible reason. The show had shown her as a competent and serious, if new and overwhelmed, lawyer rising (somewhat) to the occasion. Why would she throw that all away and what is served by undermining the character like that? Narratively, I suppose the goal is to force John Stone to step-in as first chair, completing his redemption story and, perhaps, getting Naz off the hook?. But why must it be at the cost of the female attorney destroying her career? And, come to think of it, Chandra is not the only example in the show. Allison Crowe, Naz's second lawyer, is shown as a media hound who behaves unethically in a number of ways--in stealing Naz as a client (without speaking to Naz himself), in insulting John in open court, in jacking up her price (from pro bono to costly) when he did not do what she wanted, and then in dropping Naz as a client (without informing the court) by telling him, basically, "fuck off." I overlooked it at the time because she was supposed to be the bad guy in that part of the story, an antagonist to John. But now, in light of the development with Chandra, it seems to be a broader problem in how women lawyers are presented--another example of Bergman and Asimow's thesis.

Update: I should say something about the female prosecutor, who  been no great shakes, including telling a witness what to say. Interestingly, though, the attitude towards her seems to be that she is a world-weary part of a machine that continues of its own force once it gets rolling. Mostly, she is depicted as a typical prosecutor, putting the most-favorable spin on ambiguous evidence. This is how the adversary system is supposed to work.

Posted by Howard Wasserman on August 23, 2016 at 12:03 PM in Culture, Howard Wasserman | Permalink

Comments

One other evidence issue: during cross examination of the lead detective, Chandra asks about Naz's rejection of a plea offer (and the terms of that offer).

Posted by: Donald | Aug 23, 2016 1:52:18 PM

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