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October 12, 2010

By: Joel Cohen

Anyone who has seen even a few "Law & Order" episodes knows the time-tested, formulaic players in the TV justice system. That is, a smarmy, unctuous defense lawyer with a dismissal motion lodged in his hip pocket ("I'll see you in court!"); a wisecracking arraignment judge who has never been to the law library and who, given the opportunity, might remand Mother Teresa herself ("Bail? You've got quite a sense of humor, counselor. Next case."); and an over-the-edge, sanctimonious prosecutor who would prosecute his own grandmother for driving without a seatbelt, as a felony ("No one—no one—is above the law!").

Now, anyone even mildly familiar with the actual criminal justice system knows that it never happens this way in the real world. Indeed, it is the rare defendant who will sit with his lawyer in the prosecutor's office or in an interview room at Rikers Island and dramatically overrule his lawyer in order to directly confess his crime to the prosecutor. The confession, of course, is the prelude to a guilty plea designed to gain a lower sentence, as happens in nearly every episode. 

In the real world, prosecutors and judges sometimes cajole or even threaten defendants directly, or far more cautiously, through their lawyers—that if they don't plead guilty, "things will go a lot worse at sentence." (Going through the lawyer makes sense, of course, since a fellow member of the legal fraternity is far less likely to go under oath to repeat the potential abuse of a defendant's rights by a judge in the robing room, although it does happen.)

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