In our ‘Oh, Really’ feature, the Biederman Blog’s editors and alumni— voracious consumers of trendy matters — cast a curious, skeptical, fun and smart end-of-the-week eye on popular culture and its entertaining products, sharing their keen observations about legal matters these raise.
The HBO series “The Night Of” has won critical acclaim. In this crime drama, Nasir, a community college student from a working class, Queens, Pakistani-American family heads out with friends to a party one Friday night. He meets a beautiful, mysterious young woman. After a night of drinking and ingesting other substances with her at her place, he blacks out. He awakens the next morning to find her stabbed 22 times.
The rest of the series is “Did he, or didn’t he?” and tracks his attorneys–a weary, down-on-his-luck ambulance-chaser, and the other a wet-behind-the-ears Pollyanna—as they build a defense. Their work is cut in with the hunt of a dogged detective who is “just one case away from retiring.” The series culminates in the young man’s trial, when we learn his surprise fate. The show’s performances are stellar, the direction is spot-on, and the writing —by the masterful Richard Price—is superb. But, really, how about the law in this hit? (Some spoiler alerts ahead, fyi.)
Dubious evidence, ethics
As great as Night Of was and still is (it’s available, of course, on demand), there are subtle but important issues with the admissible evidence in the courtroom scenes. There also are major legal ethics issues that will leave practitioners—including wannabes who have barely completed Evidence or Legal Ethics courses in law school—scratching their heads.
Let’s fast-forward the show’s courtroom setting where the bulk of the criticism resides. Here, the rules of evidence seem more suggestions, than rules. The prosecutor’s opening statement is rightly dramatic, vividly describing the victim, brutally stabbed 22 times. But the prosecutor, curiously, relies on a prop in her jury performance: She holds up a crime scene photo, showing the dead girl lying in her own blood, her lifeless eyes piercing the jury. It’s a great performance. Would any actual judge allow such prejudicial a display, designed solely to evoke jurors’ emotions. Sure, evidence photos might be allowed, if the prosecution or defense sought to prove a material fact, like the body’s position. But Perry Mason crime scene photo flashing? Perish the thought.
Meantime, hearsay evidence is scattered throughout witness testimony. Neither prosecutors nor defense counsel object to it. In fact, both sides seem stuck in their chairs, sans objections. Shouldn’t there be at least a few for realism’s sake? Deciding hearsay can be confounding: If a statement is made outside the court, then offered by a witness who only heard it second-hand, it is hearsay and likely inadmissible, right? It’s unreliable, just as videotaped surveillance may be, especially if it is not tightly linked to the charged crime. But a key incident in the show involves Nasir’s attempted escape from custody at the police station. There, officers grabbed him, then wrestled him to the ground. Not only does an officer testify about this dust-up, jurors also see a surveillance tape of it—a recording that, in reality, would be tough for prosecutors to get admitted. The tape might make for good drama. It’s more visually interesting than a cop droning on. It gets in without due foundation.
Drugs and the defendant
Meantime, the show also allows the prosecutor at one point to call a character witness to testify that Nasir had sold him drugs. This occurred years before and involves Adderall, a common attention-deficit medication for which Nasir had a prescription. But, pray tell, how is this disclosure relevant to show that Nasir’s a killer? The proffer here is that he’s a bad character. It’s wobbly logic to escalate this flaw to homicide. And would a real court admit character evidence to prove a defendant’s propensity to commit specified crimes? Not usually, especially because the alleged wrong-doing occurred years before, even before the defendant was of legal age. If the testimony were non-specific and reputational (“Nasir is generally a very violent person”) it might be acceptable. But this described act is specific, and such bad legal strategy that a real life judge would pound a gavel and toss it out.
As for the defense attorneys, they at one point seek the testimony of the victim’s drug dealer to impeach the dead girl’s character. In a real homicide case, they might get to introduce general reputation or opinion evidence (“She was or wasn’t a peaceful person”)– but nothing more specific. Judges also seek to protect the reputation and rights of victims, especially if they are dead and can’t defend themselves. So how is it that the series’ judge allows the victim’s drug dealer to say he sold her ecstasy and ketamine in the days before her killing. That’s pretty hardcore stuff. Do we hear hizzoner’s real gavel slamming down and ruling out this ugly approach?
Let’s also put the hammer down on this part of the show: the relationship between Chandra, the young defense attorney, and defendant Nasir. Toward the series’ end, while counseling her client in a holding cell about legal strategy, they make out. Not good. The Model Rules of Professional Responsibility bar attorneys from a sexual relationship with a client. Oh, right, swapping spit may not add up to a sexual relationship. But she’s clearly become intimate and crossed a line. Here’s where it gets more surreal: There’s a surveillance tape of their make-out sesh, but it’s shared only with the defense team and Nasir. The only consequence is Chandra’s demotion to second chair, and she is barred from giving the closing argument.
Oh, really? She doesn’t get thrown off the case, post-haste? And the prosecution and press don’t get this info and run with it?
Wait for it …
The bad gets worse: In the show, Chandra must persuade Nasir to testify on his own behalf. This is a risky role for any defendant, much less someone charged with murder. But, wait for it: Nasir says he’ll do it, if Chandra will … smuggle balloons of drugs into the prison visiting room! And she does! See ya later, Model Rules and your prohibitions against attorneys aiding in or committing crimes with or on behalf of clients.
By the way, she smuggles in the dope, and he testifies. Then … well, find the show and see for yourself.