Show Summary Details

Page of

 PRINTED FROM the OXFORD RESEARCH ENCYCLOPEDIA, CRIMINOLOGY AND CRIMINAL JUSTICE (criminology.oxfordre.com). (c) Oxford University Press USA, 2016. All Rights Reserved. Personal use only; commercial use is strictly prohibited. Please see applicable Privacy Policy and Legal Notice (for details see Privacy Policy).

date: 17 November 2017

A Genre Study of Prosecutors and Criminal Defense Lawyers in American Movies and Television

Summary and Keywords

The term genre refers to a set of thematically or stylistically similar popular cultural texts. Courtroom narratives form both movie and television genres, and criminal trials form subgenres. Each entry in the criminal subgenres contains a criminal trial and pits a prosecutor against a defense lawyer. This article discusses the genre conventions for these characters.

Where the defense lawyer is a protagonist, the client is a co-protagonist. The client is either innocent or is being unjustly prosecuted. The defense lawyer, often presented in heroic terms, struggles to get the client acquitted (or the punishment reduced). The defense lawyer must overcome obstacles that the antagonist prosecutor places in the lawyer’s path. Defense lawyers are loners who are lacking in personal life or emotions. Perry Mason is the iconic genre defense lawyer.

Where the prosecutor is the protagonist, the crime victim (or survivors of a deceased victim) are the co-protagonists. Prosecutors are relentless, honorable, and often politically ambitious. They must struggle to overcome obstacles erected by defense lawyers. Like defense lawyers, prosecutors lack a personal life or emotions. Jack McCoy on Law & Order is the iconic genre prosecutor.

These generic conventions have become stale. Consequently, creators of pop culture products in the criminal courtroom subgenre employ genre-busting narratives that have refreshed the genre. Defense lawyers often work for clients they suspect are guilty and try to get them off through the use of technical defenses. Guilty clients deceive gullible lawyers into putting on cases with perjured testimony. If the client confesses guilt, the lawyer betrays the client to protect the public. Defense lawyers have personal lives, feelings, and emotions, and some are anti-heroes. Genre-busting prosecutors often have unpleasant personalities, and they don’t hesitate to bend ethical rules. As in the case of defense lawyers, prosecutors have inner lives and personal relationships. These genre-busters have destabilized the generic conventions and may well have established new conventions.

Keywords: genre, conventions, film, movies, television, lawyers, criminal defense lawyers, prosecutors, narrative, objective narration

The Courtroom Genre and the Criminal Trial Subgenre

This article concerns criminal defense lawyers and prosecutors in American courtroom dramas presented on both film and television. It contends that there is a well-developed genre of movies and television shows centering on courtroom dramas and an established subgenre centering on criminal trials. It seeks to identify the character conventions of the lawyer protagonists who populate this subgenre.1

The term genre identifies a group of cultural texts that are thematically or stylistically similar.2 This article considers genre in both film and television (See Greenfield, Osborn, & Robson, 2010, pp. 51–67 for discussion of genre theory in studying law and film). Westerns, detective stories, romantic comedy, science fiction, police procedurals, and war stories are familiar examples of film and television genres that share thematic elements (Bordwell & Thompson, 2013, pp. 331–348; Mittell, 2010, pp. 234–258; Neale, 2003; Stam, 2000, pp. 126–30). Some genres exist only on television, such as reality shows, game shows, situation comedies, or soap operas.

Texts situated within a particular genre share common narratives and stock characters. They also share technical elements, such as music, lighting, costumes, iconography, and locations. Producers of film and television products rely on genre conventions to predict the marketability of the product and exploit genre in advertising, such as in trailers. Critics compare new products situated in a particular genre to previous products. Consumers rely on genre in selecting what products to consume and in setting their expectations of what they will be watching. They appreciate the comfortable feeling of consuming new products that fit into a familiar genre.

Of course, the boundaries of genre are malleable, and genres are constantly evolving (Neale, 2003). Creators of new pop culture products always seek to produce something that seems new and original, rather than just a stale retread of what has gone before. As a result, creators are constantly mixing genres or challenging (“busting”) the previously established generic conventions.3 At some point, this article suggests, the genre-busting techniques become so prevalent that the traditional conventions are destroyed.

There have been hundreds of American courtroom films and television series (Bergman & Asimow, 2006; Villez, 2010, p. 11). To qualify for admission to the American courtroom genre, a film or television series must include an adversarial trial that consumes a substantial amount of screen time and is an important event in the development of the narrative. Sometimes the focus of such films is on a part of the trial process (such as a criminal preliminary hearing or a jury deliberation). Film and television trials center on the clash of opposing lawyers and often explore a conflict between law and justice. Courtroom dramas share important conventions involving narratives, narration style, characters, iconography (such as law books and gavels), and location (courtrooms and law offices). Consequently, it seems fair to say that they form a genre (Bordwell & Thompson, 2013, pp. 334–336; Chase, 2002; Greenfield, Osborn, & Robson, 2010; Rafter, 2006; Rapping, 2003; Silbey, 2001). Criminal courtroom dramas form a subgenre of the courtroom genre. In the criminal trial subgenre, the narrative pits prosecutors against defense lawyers.

There are obvious differences between film and television genres. In particular, movies have about two hours to tell a story; it is therefore relatively easy to determine whether a particular movie falls into the courtroom genre. However, the time limits imposed on movies require stories to be streamlined; this often prevents detailed development of the histories and personal lives of the characters. In contrast, a television series has an episodic structure that permits extensive character development.

TV series typically feature multiple protagonists in an ensemble format, with each episode featuring several (but less than all) of them. Each episode is thematically related but tells a separate story.4 Many episodes tell several stories, called the A and B stories, which are both resolved by the end of the episode. In a particular show involving lawyers, not every episode places them in the courtroom, and some of the trials involve civil rather than criminal cases. Nevertheless, I classify a television show as part of the courtroom genre and the criminal subgenre if a substantial number of the episodes places the protagonists in court prosecuting or defending criminal trials.

This article focuses on the conventions for the construction of prosecutor and defense lawyer characters in the movie and TV criminal courtroom genres. These conventions have become stale and clichéd. Consequently, the creators of courtroom dramas increasingly turn to narratives that bust the genre. This article treats movies and television separately, but suggests that the generic conventions (and genre-busting techniques) are similar in both media and that each medium influences the other.

Most pop culture stories in all genres contain a familiar narrative pattern often referred to as the “classical Hollywood style” (Bordwell, 1985, pp. 63–72), and the courtroom genres are no exception. A hero or anti-hero serves as the protagonist and is opposed by an antagonist. The story begins when an event disturbs the established equilibrium and sets the protagonist on a quest to solve the resulting problems. In the middle of the narrative, the protagonist must seek to overcome a series of obstacles (mostly erected by the antagonist) that block the way to achieving that objective. The narrative concludes when the protagonist either achieves or fails to achieve the objective. In criminal courtroom drama, the beginning establishes the characters and provides necessary back story; the equilibrium is disturbed by the commission of a crime or the arrest of a suspect. The middle involves a trial that preserves suspense and discloses additional information about the crime, the defendant, and the lawyers. The end usually consists of a jury verdict (or some other resolution, such as dismissal of the case by the judge or a plea bargain) that convicts or acquits the defendant and restores equilibrium.

The courtroom subgenre usually has a double protagonist structure. When the protagonist is a criminal defense lawyer,5 the co-protagonist is the client who becomes the defendant in a criminal case. The client is in trouble and the lawyer seeks to get the client out of trouble. The genre convention demands that the defendant be factually innocent of the crime or at least be able to assert a plausible excuse or justification for his actions or be threatened by over-punishment (often by the death penalty). Justice, therefore, demands that the defendant be acquitted or, at least, given a lighter sentence than the prosecution seeks. In courtroom dramas focused on the prosecution side, the double protagonists are usually the prosecutor and the crime victim (or the survivors of a deceased victim). In these stories, the defendant is a depraved criminal and justice requires that the defendant be convicted and imprisoned or executed.

Every good story requires an antagonist. When the defense lawyer is a protagonist, the antagonist may be the judge, the prosecutor, the police, or some other character who seeks to prevent the defense lawyer and client from achieving the objective of getting the client out of trouble. In many stories, the police and prosecutors are harsh, overbearing, corrupt, and vindictive. The antagonist may also be the local culture that is crying out for a conviction and (often) an execution.

When the prosecutor is the protagonist, the defense lawyer is usually the antagonist who places obstacles in the path of the justice-seeking prosecutor. The defense lawyer is often tricky and presented in a negative light. In some cases, the antagonist is the prosecutor’s boss or a competing federal law enforcement agency. The boss or competing agency tries to prevent the protagonist prosecutor from seeking justice for various political or economic reasons. The antagonist may also be the local culture, which sympathizes strongly with the defendant.

Narratologists distinguish between “objective” and “subjective” narration (Mittell, 2010, pp. 220–221). In an objective story, relatively little is disclosed about the inner life of the characters, such as their feelings and emotions. In a subjective story, much more is disclosed about such matters. In the criminal trial subgenre, the convention calls for “objective” characters, so that we learn little or nothing about how the lawyers feel. Obviously, we must understand the character’s motivations, so it becomes necessary to disclose something about what the character wants or needs, but such information is minimal. Indeed, we often learn very little or nothing about the lawyers’ personal lives. In this respect, the lawyers resemble detectives and cowboys in other (but closely related) genres. In contrast, soap operas or melodrama are “subjective,” meaning there is a much greater emphasis on the inner lives and personal relationships of the characters.

The next section is about defense lawyer protagonists; the following section examines prosecutor protagonists. The conclusion emphasizes that genre busting narratives have destabilized generic conventions and, perhaps, have become the contemporary conventions (otherwise known as “the new normal”).

Criminal Defense Lawyer Protagonists in the Criminal Courtroom Subgenre

In the criminal courtroom subgenre, when the defense lawyer is a protagonist, the client co-protagonist is in deep trouble with the law. Things seem hopeless. The vastly superior forces arrayed against the defendant include the police, the prosecutor, an often-hostile media, and local public opinion. Many times, the prosecutor antagonist is harsh and overbearing and cuts ethical corners (for example, by poisoning the jury pool through pretrial publicity or failing to disclose exculpatory evidence). Most criminal defendants are poor and relatively helpless. The lawyers are usually loners who must find some way to overcome the long odds against the client. The lawyers often fail to achieve their objective of acquitting the defendant (or at least lessening the defendant’s punishment). Nevertheless, the lawyers are portrayed positively as seekers of justice. Typically, they are competent, courageous, and self-sacrificing. The lawyer is presented objectively; we see what they say and do but we learn relatively little about their personal lives, feelings, or emotions. The conventions of the genre relating to criminal defense lawyers were largely established on television and copied in the movies.

Generic Criminal Defense Lawyer Protagonists on Television

Perry Mason (1957–1966) embodies the generic criminal defense lawyer on television. Indeed, the character of Perry Mason (played by Raymond Burr) is undoubtedly the most important fictional lawyer in American history, perhaps in world history (Bounds, 1996; Nevins, 2009; Nevins, 2000; Rosenberg, 1998; Stark, 1987). Mason was the invention of the prolific Erle Stanley Gardner (1889–1970), an attorney and author of pulp fiction. Starting in 1933, Gardner wrote 82 Perry Mason novels. During the 1930s, Warner Brothers made six Perry Mason films that imitated the wise-guy comedic approach of The Thin Man (1934). Gardner hated these movies and never again surrendered creative control over his character.

The movies were followed by a radio series consisting of an astounding 3,221 fifteen-minute episodes and finally by the well-remembered television series. There were 271 one-hour televised episodes running from 1957 to 1966. Later, 30 made-for-television movies revived the character, played by an older and heavier Raymond Burr. After Burr’s death, a few other actors attempted the role but could not attract an audience, so there were no more TV movies. But Perry Mason lives on in syndication; the TV episodes and movies can often be seen on American daytime TV.

Every Perry Mason episode has the same plot. Mason’s clients are always innocent. His antagonists, police lieutenant Arthur Tragg and prosecutor Hamilton Burger, always catch and prosecute the wrong man or woman. Mason uncovers the truth with skilled detective work by himself, secretary Della Street, and investigator Paul Drake. As a result of devastating cross-examination (usually in California preliminary hearings rather than at trial), Mason always reveals the true culprit, heroically rescuing innocent defendants from wrongful conviction. The character of Perry Mason is at the objective extreme. He lacks nuance or dimension. He’s never concerned with the realities of law practice or collecting a fee. He is stolid, humorless, and asexual, apparently lacking any personal life or any feelings other than a desire to ferret out the truth and vindicate his client. He is the very personification of the generic criminal defense lawyer. Many television series follow the stock criminal defense lawyer character convention established by Perry Mason, at least in most of their episodes. These include The Defenders (1961–1965), Petrocelli (1974–1976), Matlock (1986–1995), Murder One (1995–1997), and Harry’s Law (Asimow, 2012, pp. 115–116).

Generic Criminal Defense Lawyer Protagonists in the Movies

An almost endless list of movies follows the conventions for criminal defense lawyer that were established by Perry Mason.

To Kill a Mockingbird (1962)

Perhaps the most famous example of the criminal defense lawyer convention is Atticus Finch (Gregory Peck) in the immortal film To Kill a Mockingbird (Asimow, 1996; Asimow & Mader 2013, pp. 44–59; Lenz, 2003, pp. 66–73). Finch is an admired lawyer and a committed parent, scratching out a living in the racist atmosphere of Maycomb, Alabama during the 1930s. His client, Tom Robinson, is a black man falsely accused of raping a white woman. Finch doesn’t want the case—it can only bring trouble to him and his family—but the local judge prevails on him to take it. The case is hopeless from the start. The local jury will always prefer the word of white people over black people, particularly in a case of alleged black on white sexual violence.

With great skill and commitment, Finch discredits the prosecution witnesses and demonstrates that the client was physically incapable of choking the victim. He delivers an inspiring closing argument. All for naught, however. Robinson is quickly convicted. Soon thereafter, he is dead, supposedly shot while trying to escape. The sheriff, the judge, and the prosecutor are not Finch’s chief antagonists; they are forgettable characters who are simply doing their jobs. Finch’s real antagonists are the father of the alleged victim and the racial animus of the jurors and the town.

Finch closely follows the generic rules for heroic criminal defense lawyers. He is a loner who is highly skillful, committed, and self-sacrificing in defending his hapless client. We see that he is a devoted parent, but he seems to have no other personal life, and we learn little about his feelings except that he wants to win the Robinson case.

Breaker Morant (1980)

Breaker Morant (Bergman & Asimow, 2006, pp. 278–282) is one of numerous military justice movies with similar narratives. This film, set in the Boer War of the early 1900’s, involves the court martial of two British soldiers (Morant and Handcock) who are accused of killing prisoners and a civilian. They are factually guilty, but have a solid following-orders defense. As Australians, they are handy scapegoats, offered up to placate the Germans who are considering joining the war on the side of the Boers. At the very least, the death penalty sought by the prosecution is excessive given the chaotic conditions of guerilla war.

The defense lawyer is an Australian solicitor, Major J. F. Thomas, who has never tried a criminal case and seems greatly outmatched by the resources and skills on the prosecution side. Indeed, the prosecutors use all sorts of dirty tricks to prevent Thomas from establishing his defense. Yet Thomas displays great skill and tenacity, infuriating the British command structure. Like Atticus Finch, he fails to overcome the heavy odds against him. Morant and Handcock are shot at sunrise. The film tells us little about Thomas’ inner life, except for his obvious disdain for the command structure. In contrast, the film contains a rich presentation of the characters of co-protagonists Morant and Handcock.

Presumed Innocent (1990)

In Presumed Innocent (Bergman & Asimow, 2006, pp. 81–85), Rusty Sabich (Harrison Ford)—himself a prosecutor—is accused of killing his former lover Carolyn Polhemus, but he has been framed and is not guilty of the crime. The circumstantial evidence against him seems overwhelming. Sabich is fortunate to be represented by Sandy Stern (Raul Julia). Stern has to put up with all kinds of unethical behavior from prosecutors Tommy Molto and Nicco Della Guardia.6 With the aid of some excellent luck and prosecution blunders, and a few borderline moves of his own, Stern prevails and the judge dismisses the case against Sabich. Although Sabich’s character is richly developed, we learn little of Stern’s feelings and emotions.

A sampling of additional movies that follow the rules for the stock criminal defense lawyer character might include Compulsion (1959), The Young Philadelphians (1959), Suspect (1987), True Believer (1989), A Few Good Men (1992), In the Name of the Father (1993), Murder in the First (1995), People v. Larry Flynt (1996), Snow Falling on Cedars (1999), Conviction (2010), and countless others.

Genre Busting

The stories of noble but one-dimensional criminal defense lawyers rescuing factually innocent (or at least unjustly charged or excessively penalized) defendants have become rather stale (Chase, 2002, p. 101). To produce fresh material, creators of movies and TV shows have frequently departed from the generic pattern. The discussion below mentions a number of these genre-busting techniques, which have become so prevalent that they have destabilized the genre and perhaps have established a new generic convention for criminal defense lawyers.

Guilty Defendants

The generic pop culture convention is of the criminal defense lawyer who represents a co-protagonist client who is factually innocent. This, of course, is a comfortable myth. In reality, nearly all criminal defendants are factually guilty; defense lawyers attack the prosecution’s case by trying to exclude evidence, prove a justification or excuse, or argue reasonable doubt. If the defense case is weak, defense lawyers plea bargain as best they can, and nearly all criminal cases are settled by plea-bargains or dismissals, not by jury trials.

Thus the genre has long since come to include narratives of factually guilty defendants. There are at least three subcategories of the factually guilty defendant narrative—vigorous defense of a client suspected or even likely to be guilty, lawyers who have been deceived by the client, and lawyer betrayal of the client.

Vigorous Defense of Probably Guilty Client

Criminal defense lawyer protagonists routinely assert technical defenses on behalf of clients they assume to be factually guilty. Thus, on The Practice (Rapping, 2003, pp. 35–43; Thomas, 2001; Thomas, 2009), the lawyers often assert illegal search and seizure defenses to exclude critical evidence against clients, often drug dealers. They attack the prosecution’s evidence to establish a reasonable doubt defense. They sometimes cut ethical corners, and usually get away with it—a trait Simon describes as “moral pluck” (Simon, 2001). In the deeply (and delightfully) cynical Chicago (2002), defense lawyer Billy Quinn (Richard Gere) concocts a phony story for client Roxie Hart (Renee Zellweger) to tell on the stand. Movies in which defense lawyers make use of technicalities or outright cheating to win acquittals leave viewers with an uneasy feeling that the lawyers have thwarted justice. Even the pop culture lawyers sometimes admit that they are disillusioned with work that consists of putting bad people back on the street.

Anatomy of a Murder (1959), perhaps the finest courtroom drama of all time, is a classic genre-busting film involving vigorous defense of a client the lawyer knows is probably guilty (Bergman & Asimow, 2006, pp. 64–68). Lt. Manion shot and killed Barney Quill in front of a roomful of witnesses, but why did he do it? Was it a calculated killing stemming from a jealous rage (because he thought Mrs. Manion was carrying on an affair with Quill)? Or was Manion in the grip of an “irresistible impulse” caused by learning that Quill had raped Mrs. Manion—which qualified for the insanity defense? Lawyer Paul Biegler (James Stewart) coaxes the client into asserting a phony insanity defense. Biegler is presented in an objective fashion; there’s next to nothing about his personal life, much less his emotions. The film broke genre boundaries because it suggests that the lawyer coached a guilty client into asserting a false defense. Director Otto Preminger, who hated censorship, directly challenged Hollywood’s self-imposed Production Code (1934–1968) in Anatomy by allowing a probably guilty criminal to walk free (Asimow & Mader, 2013, pp. 26–30). The film’s frank treatment of sexuality also seriously undermined taboos in the Code.

Clients Deceive Lawyers

Another genre-busting story line calls for the client to deceive the lawyer. This causes the lawyer to put on a false defense that may well include perjured testimony. An early and classic challenger to the genre involving a deceived lawyer was Witness for the Prosecution (1957) (Bergman & Asimow, 2006, pp. 162–165). However, the film honored the Hollywood Production Code’s requirement that crime in the movies must never pay by killing the deceitful but very guilty defendant.7 In these stories, the lawyer often becomes emotionally over-committed to the case and suffers bitter disillusionment when the truth comes out.

In more contemporary versions, the client often gets away with it. In Primal Fear (1996), for example, client Aaron Stampler (Edward Norton) fools his lawyer Martin Vail (Richard Gere) as well as an expert psychiatrist into believing that Stampler has a multiple personality disorder. The bad personality (Roy) emerged and killed the Archbishop of Chicago, while the good personality (the meek Aaron) is incapable of such a thing. The strategy works—Stampler is found to be not guilty by reason of insanity. Actually, Stampler faked it; there is no multiple personality—just a vicious killing. Here the defense lawyer is portrayed as an arrogant but gullible dupe. This type of story has been repeatedly used in contemporary movies such as Jagged Edge (1985), The Music Box (1989), and Guilty as Sin (1993), in all of which the defense lawyer becomes emotionally (and sometimes romantically) committed to the all too guilty defendant. The same story line was used to good effect on The Practice (Thomas, 2001, pp. 135–136).

Lawyer Betrays Client

Another variation of the guilty client story occurs when the lawyer discovers that a client previously believed to be innocent is actually guilty. This often occurs because the client confesses to the lawyer, but nevertheless insists on a vigorous defense, which will include the introduction of perjured testimony. Under the rules of ethics, the lawyer should withdraw from the case. If that is not possible, the lawyer should defend the client, on technical or reasonable doubt grounds, but cannot introduce testimony that the lawyer knows is perjured (Asimow & Weisberg, 2009, pp. 234–248). In the movies and television, however, the lawyer almost always betrays the client by making sure the client is convicted of this crime or some other crime or by killing him (Asimow & Weisberg, 2009, pp. 248–253). Thus pop culture lawyers are expected to protect the public rather than their clients.

The classic example of lawyer betrayal occurs in … And Justice for All (1979). Defense lawyer Arthur Kirkland (Al Pacino) is defending his worst enemy, Judge Henry Fleming (John Forsythe) on rape charges. Fleming initially denies the charges but later confesses to Kirkland that he is guilty. Nevertheless, Fleming expects Kirkland to put on a full-fledged defense that will rely on perjured witness testimony. At the trial, Kirkland’s opening statement betrays Fleming. Kirkland tells the jury “My client, the Honorable Henry T. Fleming, should go right to fucking jail, the son of a bitch is guilty.” Variations of this story appear in movies like The Lincoln Lawyer (2008), From the Hip (1987), and The Devil’s Advocate (1997). It has also appeared repeatedly on television in episodes of LA Law, The Practice, Harry’s Law, and other shows (Asimow, 2012, pp. 119–121).

Subjective Narration

Modern audiences are not attracted to protagonists who are goody-two-shoes like Atticus Finch, or sexless robots like Perry Mason. Today we demand nuance in our protagonists; they cannot be all good or all bad. They must have a personal life, emotions, and feelings.8

Consequently, criminal defense lawyers, especially on television, usually have inner lives and romantic relationships. This subjective material is described in character arcs that extend over entire seasons or even multiple seasons. This was the strategy of The Practice, which involved a down-at-heel firm specializing in low-grade criminal and civil cases. The lawyers had personal problems and experienced failed (and often inappropriate) romances (Epstein, 2003, pp. 840–845). One partner, the unattractive Ellenor Frutt, had a miserable personal life. The narratives deal extensively with the lawyers’ inner lives and personal relationships, so much so that the series often felt more like a soap opera than a member of the courtroom genre. A frequent theme was the lawyers’ distaste for their clients and their disillusionment with putting depraved and vicious people—especially drug dealers—back out on the street (Rapping, 2003, pp. 35–43).

The ultimate in subjectively portrayed defense lawyers is Ally McBeal (1997–2002), a show focused on the personal life and feelings of the lead character (Asimow, 2014; Sharp, 2009, pp. 221–232). Indeed, viewers often saw Ally’s dreams, fantasies, and emotions projected on the screen through ingenious special effects. The most famous example was the dancing baby, symbolizing Ally’s concerns with her biological clock. Although there were many trials in Ally McBeal episodes (more often civil cases than criminal), the legal stories were often quite fanciful and served mostly to dramatize the concerns that the character was experiencing in her own life.

Most of the contemporary successful defense-oriented television series, such as LA Law, Boston Legal, Suits, as well as The Practice, include a great deal of subjective material about the personal lives and feelings of the protagonist defense lawyers. Similarly, episodes of The Good Wife always include material about Alicia Florrick’s personal life along with legal and political stories. Unlike Ally McBeal, Alicia is not at the subjective extreme; she’s reluctant to reveal information about her personal life to other characters, and she tends to soldier on regardless of how she feels.

Thus the criminal trial subgenre has clearly evolved along the objective to subjective axis. It is likely that if someone sought to revive Perry Mason today, Perry and Della Street would be carrying on a troubled romantic relationship. And who knows—Hamilton Burger and Arthur Tragg might be considering marriage.

Prosecutor Protagonists in the Criminal Courtroom Subgenre

The generic prosecutor protagonist is a hard-working, incorruptible, moralistic official who enforces the law despite all kinds of good reasons not to. Often the prosecutor is up against difficult odds because of serious evidence issues. The prosecutor is pitted against crafty and well-paid defense lawyers, who pull all sorts of unethical tricks. In other cases, the jury seems strongly predisposed in the defendant’s favor. Often, the prosecutor’s superiors (or a federal agency) want him or her to drop the case for political reasons or because they do not want to squander resources in trying a weak case. As in the case of defense lawyers, we learn relatively little about the inner lives of the generic prosecutors; the focus is on what they do, not about how they feel. In these stories, the crime victims (or the victim’s friends or family) are the co-protagonists, and the victim characters are subjectively portrayed. The generic constraints on the character of prosecutors were established in older movies,9 so this part begins with the movies and shifts to television.

Generic Prosecutor Protagonists in the Movies

Manhattan Melodrama (1934)

Jim Wade (William Powell), in Manhattan Melodrama, is the iconic pop culture prosecutor. Wade unflinchingly prosecutes his boyhood friend Blacky Gallagher (Clark Gable) for the murder of Richard Snow. Wade wins a conviction and later (as governor of New York) refuses to commute Blacky’s death sentence. Wade does all this despite his friendship with Blacky and the fact that Blacky killed Snow to save Wade’s political career. And Wade sticks to his guns even though his wife Eleanor leaves him because of his refusal to commute Blacky’s death sentence. Wade is tough, moralistic, and dedicated to law enforcement, despite all personal concerns. The plot is unusual in that the co-protagonist is the criminal defendant rather than the crime victim.

Marked Woman (1937)

Assistant district attorney David Graham (Humphrey Bogart) tackles the New York mob. His chief target is the previously untouchable Johnny Vanning (Eduardo Cianelli) who controls the city’s saloons and the prostitution racket. A group of prostitutes led by Mary Dwight (Bette Davis) works for Vanning’s clip joint. After Dwight’s innocent younger sister is killed at one of Vanning’s parties, Dwight and the other women switch sides. Dwight is badly beaten and her face is marked by knife cuts. Thus she becomes the victim co-protagonist and works with Graham to bring Vanning down. Graham is highly ambitious and moralistic and uses every available tactic to coerce or persuade the prostitutes to betray Vanning. He gives a great closing argument to the jury about the evils of the mob. So far as the movie discloses, Graham has no emotions or personal life. Graham shows a flash of interest in Dwight as the movie closes, but the difference in their social class makes a relationship improbable.10

The Accused (1988)

The double protagonists in this film are victim Sarah Tobias (Jodie Foster) and prosecutor Kathryn Murphy (Kelly McGillis). Tobias was gang raped in a bar. Murphy plea-bargained the case against the rapists, fearing that the defendants would win acquittal on the ground of consent (Tobias dressed and danced provocatively and smoked marijuana). As a result, the rapists received a relatively light sentence for “reckless endangerment” rather than rape. After Tobias accused Murphy of selling her out, Murphy successfully prosecutes the onlookers who egged on the rapists for solicitation of the crime. Murphy disregards the instructions of her superior to drop the case because he thinks it is unwinnable. Murphy comes up with a new eyewitness and secures a conviction of the cheerleaders for solicitation. This decision is politically unpopular, and she puts her job on the line to seek justice. Viewers learn relatively little about Murphy’s inner life aside from her troubles at work, but Tobias’ character is richly developed.

Ghosts of Mississippi (1996)

In 1963, Byron de la Beckwith (James Woods) murdered Mississippi civil rights leader Medgar Evers. However, two trials of de la Beckwith ended in hung juries. His widow, Myrlie Evers (Whoopi Goldberg), continued to press for action in the case, but to no avail. In 1994, prosecutor Bobby de Laughter decides to retry de la Beckwith even though many witnesses are dead and the transcript of the original trial has been lost. His superiors oppose this action as a waste of prosecutorial resources. But co-protagonists de Laughter and Myrlie Evers press on, find additional witnesses and the missing transcript, and win a conviction. This film does present some subjective material; De Laughter’s wife divorces him, white society shuns him, and he and his children are in physical danger.

Generic Prosecutor Protagonists on Television—Law & Order

Law & Order tied for the longest-running television series in history (Asimow & Mader, 2013, pp. 159–177; Epstein, 2003, pp. 832–838; Keetley, 1998; Lenz, 2003, pp. 156–167; Mader, 2009, pp. 117–129; Rapping, 2003, pp. 27–35). It ran an amazing 20 years. Every episode had the same two-part narrative structure. An off-screen narrator intones “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their stories.” The show begins with a murder (usually with someone finding a dead body). In the first half, the police investigate various clues, and eventually identify and arrest a suspect whom they believe committed the crime. In the second half, the prosecutors put the defendant on trial and usually (but not always) succeed in convicting him or her after a trial or through a plea bargain.11

The prosecutorial segment of each episode always confronts interesting and difficult ethical and cultural issues such as whether a killer should be held criminally responsible. Sometimes the prosecutors cut ethical corners, but always for what viewers would consider a good cause—convicting an evil and often vicious criminal who might otherwise weasel out of punishment. The prosecutors often must grapple with thorny problems of criminal law and procedure and must make difficult tactical choices. Cases are often plea-bargained rather than subjected to a full-scale trial and jury verdict. And sometimes the prosecutors lose.

Law & Order confirmed and reinforced the generic conventions for prosecutor protagonists established by movies like Marked Woman. In the 20-year history of the show, there were only two prosecutor protagonists—Ben Stone for four years and Jack McCoy for sixteen years. These prosecutors are tough and tenacious but principled and fair. Their job is to represent the people and convict bad guys. Typically, the defendants are represented by canny and sometimes shady defense lawyers who put all sorts of legal and evidentiary obstacles into the paths of the police and the prosecutors (Epstein, 2003, pp. 835–838). On Law & Order, there is seldom a victim co-protagonist; the story is about the police and the prosecutors.

Remarkably, the narration in Law & Order is nearly as objective as Perry Mason. Over the 20-year time span of the program, we learn next to nothing about the personal lives of the cops or the lawyers. They appear to have no romantic relationships, no feelings, no emotions, except those connected with their work. Rarely, there are elliptical references to the characters’ pasts, usually involving alcohol abuse and failed relationships. One of the mysteries of the success of Law & Order is how viewers could empathize with characters who are so lacking in personal dimension.

“Blue Bamboo” is a beautifully written episode that screened during the fifth season of Law & Order. The defendant is Martha Bowen who killed Shiunro Hayashi. Hayashi had previously hired Bowen to sing at his nightclub in Tokyo, seized her passport, and prostituted her. The prosecutors argue that Bowen seduced and murdered Hayashi (when he visited New York) as retribution for his past abusive behavior toward her. The defense (presented as shady and opportunistic) argued battered women’s syndrome (BWS). The theory was that Bowen killed Hayashi because she was afraid he would hunt her down and kill her for getting him in trouble. The jury acquits Bowen despite the obvious weakness of her BWS defense. The prosecutors are defeated not so much by the efforts of the defense lawyers and BWS experts but by the virulent anti-Japanese bias of the 1990s. The episode shows the prosecutors taking a tough and politically unpopular case to trial, despite the risk that the jury would decide that the evil Japanese victim deserved his fate.

Genre Busters Involving Prosecutors

As noted above, the conventions of the criminal defense genre usually make prosecutors the antagonist. When the protagonist is a defense lawyer, the prosecutor is likely to be ethically challenged, overzealous, or politically motivated to pursue weak cases. However, cases in which the prosecutor is the protagonist and is also portrayed negatively are relatively rare.

Prosecutorial Anti-Heroes

Night Falls on Manhattan (1997)

This film busts the genre conventions for prosecutor protagonists. It presents the prosecutor, as well as the entire district attorney’s office and the police, as anti-heroes. Dope dealer Jordan Washington guns down three police officers who were trying to arrest him. Washington argues self-defense; he claims that the cops were planning to assassinate him because he had refused to make payoffs. Neophyte Sean Casey (Andy Garcia), the son of one of the cops who made the bungled arrest, is assigned to prosecute Washington. Casey is idealistic but naïve. He learns that Washington was telling the truth, but he covers this up, along with the fact that his father had forged the arrest warrant. The film portrays the prosecutors as bottom feeders who couldn’t get a better job and who will always bend the law to get a conviction.

Shark (2006–2008)

The television series Shark presents an example of a prosecutorial anti-hero (Rapoport, 2009, pp. 163–173). It centers on prosecutor Sebastian Stark (James Woods) who becomes a special prosecutor after giving up on the defense side (he had defended a murder client who went on to kill his wife). Stark is always presented as overly aggressive and highly unethical in his determination to put the bad guys behind bars. In one episode, after he fails to convict Wayne Callison, he frames Callison for a different crime, casually destroying evidence and holding back exculpatory evidence (Rapoport, 2009, pp. 170–171). He tells his staff “Truth is relative. Pick one that works.” He’s always pushing them to cut ethical corners. And firing them if they make a mistake. All in all, Shark easily qualifies as a genre-busting prosecutor anti-hero.

Subjective Prosecutors

Although the generic prosecutor is portrayed objectively as lacking any personal or inner emotional life—like Jack McCoy on Law & Order—some prosecutors have busted that genre. Chuck Rhoades in Billions (2016) is a remorseless and ambitious prosecutor as U.S. Attorney for the Southern District of New York. In these episodes, the viewer learns a lot about Rhodes’ feelings and family life, including his peculiar sexual proclivities.

Similarly, although The Practice centers on a defense firm, prosecutor Helen Gamble appears as a protagonist in many episodes. Gamble is subjectively portrayed (Epstein, 2003; pp. 840–842). Gamble carries on an inappropriate romantic relationship with Donnell himself even though they oppose each other in court. She is often compelled by her boss to make prosecutorial decisions with which she disagrees, and she deplores the unethical tactics of some of her colleagues (Rapping, 2003, p. 39).

The Genre Unravels

Movie and TV viewers used to be able to count on criminal defense lawyers and prosecutors to follow the rules of the generic conventions of the courtroom criminal subgenre (though there are always exceptions, especially in the movies). Perry Mason on the defense side and Law & Order on the prosecution side established and reinforced the conventions. Defense lawyer protagonists were straight arrows with little in the way of a personal life. Their clients were innocent or unjustly prosecuted, and the lawyers fought hard but ethically for them, striving to overcome all the obstacles placed in their way by hostile prosecutors. When the story was told from the prosecutorial point of view, the lawyers were tough and moralistic, although also lacking in a personal life or any observable emotions.

These conventions are unraveling. Defense lawyers don’t have the luxury of defending the innocent anymore. Their job is to try to put the guilty back on the street, which seems much less heroic. Often the clients deceive their lawyers, and the lawyers betray their clients. The lawyers may be obnoxious, but at least they have personal lives. Similarly, prosecutor protagonists cheat. They have personal lives and may well be unpleasant to oppose or work for.

These genre busters have refreshed the criminal courtroom genres and created characters and stories that today’s pop culture consumers can believe in and empathize with. The lawyers they see on both big and small screens are human and fallible, but they’re fun to watch. Indeed, the genre-busting narratives have now become so frequently employed that they have destabilized the genre and threaten to become the new generic conventions.

Acknowledgment

The author acknowledges the excellent critiques offered by peer reviewers.

Further Reading

Asimow, M. (Ed.). (2009). Lawyers in your living room! Law on television. Chicago: ABA.Find this resource:

Asimow, M., & Brown, K. (Eds.). (2014). Law and popular culture: International perspectives. Newcastle Upon Tyne, U.K.: Cambridge Scholars.Find this resource:

Asimow, M., & Mader, S. (2013). Law and popular culture: A course book. (2d ed.). New York: Peter Lang.Find this resource:

Bergman, P., & Asimow, M. (2006). Reel justice: The courtroom goes to the movies. (2d ed.). Kansas City, KS: Andrews McMeel.Find this resource:

Bordwell, C., & Thompson, K. (2013). Film art: An introduction (2d ed.). New York: McGraw Hill.Find this resource:

Bordwell, D. (1985). Narration in the fiction film. Madison: University of Wisconsin Press.Find this resource:

Chase, A. (2002). Movies on trial. New York: New Press.Find this resource:

Freeman, M. (2004). Law and poplar culture. Oxford: Oxford Univ. Press.Find this resource:

Grant, B. K. (2003). Film genre reader III. Austin: University of Texas Press.Find this resource:

Greenfield, S., Osborn, G., & Robson, P. (2010). Film and the law: The cinema of justice (2d ed.). Oxford: Hart.Find this resource:

Jarvis, R., & Joseph, P. (Eds.). (1998). Prime time law. Durham, NC: Carolina Academic Press.Find this resource:

Lenz, T. O. (2003). Changing images of law in film and television crime stories. New York: Peter Lang.Find this resource:

Mittell, J. (2010). Television and American culture. New York: Oxford University Press.Find this resource:

Papke, D. R., et al. (2012). Law and popular culture: Text, notes, and questions. (2d ed). New Providence, NJ: LexisNexis.Find this resource:

Rafter, N. (2006). Shots in the mirror: Crime films and society. New York: Oxford University Press.Find this resource:

Rapping, E. (2003). Law and justice as seen on TV. New York: NYU Press.Find this resource:

Silbey, J. (2001). Patterns of courtroom justice. Journal of Law & Society, 28, 97.Find this resource:

Sklar, R. (1994). Movie-made America. New York: Vintage.Find this resource:

Stam, R. (2000). Film theory: An introduction. Malden, MA: Blackwell.Find this resource:

References

Asimow, M. (1996). When lawyers were heroes. University of San Francisco Law Review, 30, 1131.Find this resource:

Asimow, M. (2012). When Harry met Perry and Larry: Criminal defense lawyers on television. Berkeley Journal of Sports and Entertainment Law, 1, 101.Find this resource:

Asimow, M. (2014). Ally McBeal and subjective narration. In M. Asimow & K. Brown (Eds.), Law and popular culture: International perspectives (pp. 11–26). Newcastle Upon Tyne, U.K.: Cambridge Scholars.Find this resource:

Asimow, M., & Mader, S. (2013). Law and popular culture: A course book. (2d ed.). New York: Peter Lang.Find this resource:

Asimow, M., & Weisberg R. (2009). When the lawyer knows the client is guilty: Client confessions in legal ethics, popular culture, and literature. Southern California Interdisciplinary Law Journal, 18, 229.Find this resource:

Bergman, P., & Asimow, M. (2006). Reel justice: The courtroom goes to the movies. (2d ed.). Kansas City, KS: Andrews McMeel.Find this resource:

Bordwell, C., & Thompson, K. (2013). Film art: An introduction (2d ed.). New York: McGraw Hill.Find this resource:

Bordwell, D. (1985). Narration in the fiction film. Madison: University of Wisconsin Press.Find this resource:

Bounds, J. D. (1996). Perry Mason: The authorship and reproduction of a popular hero. Westport, CT: Greenwood.Find this resource:

Cawelti, J. G. (2003). Chinatown and generic transformation in recent American films. In B. K. Grant (Ed.), Film genre reader III. Austin: University of Texas Press.Find this resource:

Chase, A. (2002). Movies on trial. New York: New Press.Find this resource:

Corcos, C. (2003). Prosecutors, prejudices and justice: Observations on presuming innocence in popular culture and law. University of Toledo Law Review, 34, 793.Find this resource:

Epstein, M. (2003). For and against the people: Television’s prosecutor image and the cultural power of the legal profession. University of Toledo Law Review, 34, 817.Find this resource:

Greaves, C. J. (2015). Getting lucky. American Bar Association Journal, 101(11), 44.Find this resource:

Greenfield, S., Osborn, G., & Robson, P. (2010). Film and the law: The cinema of justice (2d ed.). Oxford: Hart.Find this resource:

Keetley, D. (1998). Law & Order. In R. Jarvis & P. Joseph (Eds.). Prime time law (pp. 33–54). Durham, NC: Carolina Academic Press.Find this resource:

Lenz, T. O. (2003). Changing images of law in film and television crime stories. New York: Peter Lang.Find this resource:

Mader, S. (2009). Law & Order. In M. Asimow (Ed.), Lawyers in your living room! Law on television (pp. 117–128). Chicago: ABA.Find this resource:

Mittell, J. (2010). Television and American culture. New York: Oxford University Press.Find this resource:

Neale, S. (2003). Questions of genre. In B. K. Grant (Ed.), Film genre reader III. Austin: University of Texas Press.Find this resource:

Nevins, F. (2000). Samurai at law: The world of Erle Stanley Gardner. Legal Studies Forum, 24, 43.Find this resource:

Nevins, F. (2009). Perry Mason. In M. Asimow (Ed.), Lawyers in your living room! Law on television (pp. 51–62). Chicago: ABA.Find this resource:

Rafter, N. (2006). Shots in the mirror: Crime films and society. New York: Oxford University Press.Find this resource:

Rapoport, N.B. (2009). Swimming with Shark. In M. Asimow (Ed.), Lawyers in your living room! Law on television (pp. 163–174). Chicago: ABA.Find this resource:

Rapping, E. (2003). Law and justice as seen on TV. New York: NYU Press.Find this resource:

Rosenberg, N. (1998). Perry Mason. In R. Jarvis & P. Joseph (Eds.), Prime time law (pp. 115–128). Durham, NC: Carolina Academic Press.Find this resource:

Sharp, C. (2009). Ally McBeal: Life and love in the law. In M. Asimow (Ed.), Lawyers in your living room! Law on television (pp. 221–232). Chicago: ABA.Find this resource:

Silbey, J. (2001). Patterns of Courtroom Justice. Journal of Law & Society, 28, 97.Find this resource:

Simon, W. H. (2001). Moral pluck: Legal ethics in popular culture. Columbia Law Review, 101, 421.Find this resource:

Stam, R. (2000). Film theory: An introduction. Malden, MA: Blackwell.Find this resource:

Stark S. D. (1987). Perry Mason meets Sonny Crockett: The history of lawyers and police as television heroes. University of Miami Law Review, 42, 229.Find this resource:

Thomas, J. (2009). The Practice: Debunking television myths and stereotypes. In M. Asimow (Ed.), Lawyers in Your Living Room! Law on Television (pp. 129–140). Chicago: ABA.Find this resource:

Thomas, J. (2001). Legal culture and The Practice: A postmodern depiction of the rule of law. UCLA Law Review, 48, 1495.Find this resource:

Vieira, M. A. (1999). Sin in soft focus: Pre-code Hollywood. New York: Harry N. Abrams.Find this resource:

Villez, B. (2010). Television and the legal system. New York: Routledge.Find this resource:

Notes:

(1.) Another plausible approach is to treat lawyer films and TV shows as genres and courtroom films and TV shows as subgenres. Films or TV shows concerned with criminal trials would be a sub-sub-genre. The lawyer genres would be identified by the presence of one or more lawyers in principal roles, and the narrative would include a significant amount of material about law practice. Obviously, the lawyer genres include vastly more movies and TV shows than those concerned with trials and courtrooms.

(2.) Obviously, a particular courtroom film or television show always fits into several different genres besides the courtroom genre. For example, it may be a comedy, musical, thriller, lawyer story, detective story, melodrama, police procedural, or western. We await the first vampire/courtroom drama.

(3.) For an excellent discussion of genre-busting in the detective story genre, see the discussion of Chinatown in Cawelti (2003).

(4.) Some television shows employ a serial format, in which a single story runs over numerous episodes for an entire season. The serial format requires viewers to see the various episodes in the correct order. Damages, Murder One, Billions, and The Night Of are examples of serial format in the TV courtroom genre. This format allows for the development of much more complex narratives than are possible in the episodic format. Genre-busting characterizations are more likely to occur in a serial than a series.

(5.) On many television shows in the genre, several criminal defense lawyers work in a firm. In a given episode, any member of the ensemble may be the criminal defense protagonist. Obviously, each lawyer in the firm has a different style and personality, but the generalizations about the genre conventions apply to all of them.

(6.) See Corcos (2003, pp. 797–799), describing the cynical, unethical, over-zealous, and politically opportunistic prosecutors in Presumed Innocent as “card-carrying members of the Popular Culture Prosecutors Bar Association.”

(7.) Another early example of the deceived lawyer is The Paradine Case (1947) (Bergman & Asimow, 2006, pp. 209–212), in which the deceitful defendant is executed.

(8.) The huge success of Law & Order, as discussed below, is a puzzling exception to this generalization.

(9.) The straight-arrow image of prosecutors in older movies was, to some degree, dictated by Hollywood’s Production Code. The Code required that the courts should not be presented as unjust. The guidelines of the Production Code Administration applied this rule to prosecutors: “The judiciary and the machinery of criminal law must not be presented in such a way as to undermine faith in justice. An individual judge, or district attorney, or jail warden may be shown to be corrupt; but there must be no reflection on the law in general, and the offender must be punished.” See Vieira (1999, p. 219) for text of the Code and guidelines.

(10.) The real-life background of Marked Woman is spelled out in Greaves (2015).

(11.) Law & Order adapted its format from an earlier show Arrest & Trial (1963–1964), which also split each episode into a police story and a trial story. However, the trial story was told from the perspective of the criminal defense lawyer rather than the prosecutors. Nevertheless, the prosecutors were depicted as honorable and capable.