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date: 26 September 2017

Representations of Law, Rights, and Criminal Justice

Summary and Keywords

Criminal justice and its institutions are key objects of popular culture and attract extensive media attention. The portrayal of the justice system, its rules, professions, and institutions has been invigorated with the invention of new media technology. The authorities’ reaction to wrong doing has proven not less exciting to the audience than the criminal acts themselves. French sociologist Emile Durkheim emphasized that every member of society has an interest in social cohesion and wishes to see perpetrators appropriately punished. The media plays to this basic inclination. From the reactions of the justice system to crime people take clues not only for its effectiveness but the public also wants to see its basic values represented in the work of officials and their decisions. Therefore, aspects of procedural and distributive justice are picked up by popular imagination and exploited to the full by media producers. Beyond recognition that media depictions of criminal justice will follow media conventions and will therefore be distorted in systematic ways, it has to be acknowledged that those representations and the expectations they formed have become a major force in society. Political repercussions and influences on how crime is dealt with are a consequence.

Keywords: courts, judges, prosecutors, lawyers, law film, courtroom drama, TV law series

The Ubiquity of Law and Crime in the Media

Representations of criminal justice and its institutions form one of the main topics within film and television, as well as in related media. They are of course found in the news. The first purpose-built cinema already announced a film about Alfred Dreyfus facing court martial as “sensation of the hour” (Dirks, 2016). Tellingly, lawyer Atticus Finch of the courtroom drama To Kill the Mockingbird (USA, 1962) headed the American Film Institute’s (2003) list of the most outstanding movie heroes. Scholars have filled the library shelves with books about law, crime and their prominence in popular culture. Crime and the media or law in film classes are no longer exceptional at law schools and find their way into social science curricula. Films and television series have familiarized audiences around the globe with the institutions of criminal justice. Their emphasis on rights that individuals have, on fair trial, legal representation and a whole raft of aspects of particularly U.S. justice, has a profound influence on how people imagine the law, its institutions and its personnel. News reporting tends to pick up strange and often outrageous events. So news media are quick to scandalize matters of criminal justice. This is different for the bulk of films and television series. Despite variations by subgenre and shifting emphases within national cultures, portrayals of criminal justice have one substantial liberal political message: they invite people to trust the law but be guarded against the abuse of power.

For writers, film directors, producers and actors, the depiction of criminal justice holds the promise of success. They can create masterpieces and establish lasting careers. The justice system abounds of memorable and iconic features: including courtroom decorum, formal dresses, legal speech and court manners. It offers a microcosm of opposing and complementary social roles. They invite dramatic, comedic and satirical treatment. A wide spectrum of approaches is possible from documentaries and docudramas to the depiction of phantasy scenes. In The Devil and Daniel Webster (a.k.a. All that Money Can Buy, USA, 1941, after Benét, 1937) the ultimate adversary calls a jury of “murders, traitors and thieves” out of hell and still, through the power of sheer oratory, the lawyer manages to persuade them. When sound for movies was invented, legal themes became especially attractive as the altercation between pleading parties in front of the court was just the type of action required to fill the audio track (Nevins, 1996, p. 45). Roles in dramas around criminal justice are highly sought after by leading actors as they allow to practice their art most effectively. No wonder that star actor Henry Fonda bought the film rights (Miller, n.d.) to 12 Angry Men (USA, 1957) to be able to play “juror number eight” turning around the fate of the accused. As decisions of criminal courts can have life-changing consequences, articles, books and moving images of them form an ideal vehicle to send political messages, to champion the rights of the disadvantaged and to accuse the powerful of wrongdoing. Drafted in defense of Captain Dreyfus, Emile Zola’s article “J’accuse” on the front page of L’Aurore newspaper (1898) had profound political influence in France. To this day, it has defined the social role of the “intellectual.” Lawyers, judges, prosecutors, or even paralegals are coming into contact with people from all walks of life and this way stories are easily developed in all sorts of directions. Finally, genres can be mixed: a legal drama may be complemented with action scenes, as in The Star Chamber (USA, 1983) with a depiction of twisted gender relations, as in Witness for the Prosecution (USA, 1957), or the audience may watch how the character of men is tested in war, as in The Caine Mutiny (USA, 1954). The case may start with conventional detective work, before it goes to court and may be followed up by scenes in prison. In the end, the real culprit will have been appropriately dealt with, as typical for a German TV judge show, or an innocent man is executed under the most horrendous circumstances, as in King & Country (UK, 1964). In short, depictions of criminal justice cater for any artistic, journalistic and political ambition, they promise to attract an audience and it is therefore no wonder why they fill the news and why a plethora of films, books, and television series are produced attracting some of the most outstanding talents.

In this encyclopedia, there are special entries dealing with, for example, the portrayal of the police, or of the death penalty, so the present text concentrates mainly on the key aspects of criminal justice defined by the work of lawyers, public prosecutors, and judges. This article will not cover news media. Apart from the trend to report the unusual and negative, to personalize and moralize, an international overview of the reporting on criminal justice by news media is difficult to attempt. Situations vary widely, depending on such factors as control of the news media, qualities of the criminal justice institutions, and dominant attitudes. However, it will be argued that the portrayal in film and fictional TV programs largely follows a meta-pattern. To understand why audiences care at all about depictions of criminal justice and its institutions, a socio-legal perspective is introduced. To understand how audiences are drawn into stories, an entertainment value theory will be added. After establishing that the idea of having legal rights is promoted, further political effects are discussed. Along the way, the main trends as well as special cases and developments are noted.

Socio-Legal Background

Why do people care at all about criminal justice? This question has to be answered to find out why stories of criminal justice and its institutions have attracted journalists, filmmakers, writers, TV professionals, and audiences alike. Criminal justice is indicative of the state of human relations and of society. This idea has been widely developed in social sciences since Emile Durkheim (1976, p. 181) formulated his theory of social solidarity and cohesion. According to Durkheim and his followers, all members of society share an interest in seeing its basic values effectively defended. People feel safer if the authorities are able to punish rule breakers. They scan their environment for signs of unruliness and crime with the feeling that too much of it presents a serious danger. A poignant formulation in this tradition has been found by Albert Pepitone (1975), who notes that

the essence of moral socialization is the universalistic orientation; that is, every person socialized in some degree is an interested party to normative violations and has several simultaneous perspectives on it. Everyone is a judge of such violations, a potential administrator of sanctions, an actor who should comply with norms, and one who should receive punishment when a violation is committed.

(pp. 198–199)

Depictions of criminal justice, especially those resembling the classic courtroom drama, invite recipients to take the position of a lawyer, judge, juror, or other official. They make them feel the dilemmas of key figures, even of those about to ignore the law, and to think of an appropriate punishment.

According to common perception—which is not shared by some lawyers and judges—the ultimate goal of the legal system is “justice.” The striving for it makes good entertainment. People want to see justice done, and many working in the system want to make it function, or at least look, that way to bolster up support for the law. Through their upbringing and later socialization, individuals acquire the values of their society or group, some of which relate to criminal justice, and they expect the authorities to live up to them (on procedural fairness, see Tyler, 2006). People are not only interested in how they themselves would fare with the law but also how others are treated (Machura, 2001). Regarding criminal matters, justice comes as procedural fairness, on the one hand, and distributive, respectively retributive justice, on the other. Criteria for procedural fairness, an evaluation of the way decisions are reached, are largely similar for people of different social background and from different countries. This makes it easier for audiences around the world to understand films set in a particular national legal system (Machura, 2005). Fair procedures do not discriminate among parties and are characterized by impartial decision-makers who carefully sample and consider all relevant evidence, respect the rights and personae of those appearing in court, and allow defendants and witnesses to state their case or experiences. Defendants can be legally represented by lawyers. There also has to be a path to appeal a decision (on criteria, e.g., Leventhal, 1980; Tyler & Lind, 1992).

Distributive justice—aimed at an evaluation of the allocation of benefits and burdens—is complicated (Deutsch, 1971) and fraught with ideological divisions. However, when it comes to crime, most people in most societies at least have no difficulty in distinguishing crimes that are severe, with murder ranking most highly, and other crimes considered less severe. Moreover, the media concentrates on those most heinous offences anyhow. Retributive justice—the meting out of punishment—is a form of distributive justice, but as society defends against wrongdoing, it is thought to be especially emotionally charged (Hogan & Emler, 1981, p. 136; Tyler et al., 1997, pp. 113, 129). Legal scholars have developed a typology of objectives of punishments, including simple retaliation, deterring the offender, or the general public, incapacitation of the offender and rehabilitation. But, social science research shows that to the public “all the aims of sentencing sound worthwhile” (Roberts, 1996, p. 493). Media are able to draw on any of these aspects of punishment with ease.

Cultural differences and local media trends notwithstanding, with the advent of cinema, television and the Internet, a cultural globalization has taken place that in its effects is not second to economic globalization (Machura & Ulbrich, 2001; Sarat, 2011, p. 1). Ideas, myths, and stories travel almost unrestrained. Countries with a large media industry, and among them especially the United States, effectively teach the world about law and crime. Their media’s messages go even deeper when they come along as entertainment and even if the audience may want to be skeptical, they have opened themselves up more than they would have in an educational setting or political debate.

Entertainment Values

Criminal justice makes excellent entertainment. Public spectacles of trials and punishment on the main squares of towns and cities used to be displays of power (Foucault, 1975) and they catered for all sorts of unsavory sensations. Even in modern routinized and rationalized trials, occasionally the courtroom turns into a theater. There are certain qualities of criminal justice that suggest a typology of “entertainment values.” Audiences and media producers have knowledge of them, the latter more so than the former; they seek them out and they cater to them. The entertainment values of conflict, norm violation, humor, threat or reward, representation of the public and identification by viewer, weak and strong authorities (heroes), discovery and mystery, self-reference, stories and believability can be recognized.

Conflict and norm violation, as well as allowing for moral judgement, especially of actors, are, according to Luhmann (2000, pp. 27–33), criteria used by media to decide about the news value of events. These criteria are immediately met by crime stories. There can be multilayered constellations of conflict: perpetrator against victim, perpetrator against the community, perpetrator against the state appropriating the conflict, and so on. Crimes are defined by norm violation, usually by acting against provisions of the criminal code and occasionally offending against a norm defined by customary, traditional, or social “law.” A clash between norms of universal recognition and norms used locally is possible. In the drama Breaker Morant (Australia, 1980), dealing with historical events during the asymmetric war of the British against Boer guerillas, three junior officers of the special unit Bushveldt Carbineers face court martial. They had dealt with captured enemy commandos according to “rule .303,” named after the caliber of their rifles. The rules of war in the outback of Transvaal knew no mercy, and the generals were applying international law only as and when it deemed opportune. In popular fiction, representatives of the law are often allowed to operate by a special moral code, but only insofar as they serve a superior sense of justice (Greenfield & Osborn, 1995; Nevins, 2000, pp. 611, 641). The thrill of a story is enhanced if the audience feels a protagonist’s dilemma when serving the law by operating outside the law. The viewers then have to decide for themselves when things go too far. In the area of crime, norm violation and moral judgement are usually interlinked. When the heroes to a story are allowed to break the law, an attempt is made to explain their behavior.

Humor can be a key ingredient in the depiction of criminal justice and its institutions. Drama and comedy are closely related genres. The very same formal and intimidating features of a criminal trial can be used to great effect to amuse the audience. In The Lady of Shanghai (USA, 1947), a dim-witted sailor, who had an affair with the wife of his lawyer, finds himself in court for murder. All odds are against him because the husband has vowed to have his revenge. The tension is broken by an immensely witty scene in which the lawyer examines and cross-examines himself as witness. Funny scenes can be found in countless other courtroom dramas, featuring hard-of-hearing witnesses (Witness for the Prosecution, USA, 1957), drunken jurors (Young Mr. Lincoln, USA, 1939) and strange expert witnesses (episode “Bond,” 2015, of The Good Wife, USA, 2009–2016).

Threat or reward are common features. The innocents are threatened with miscarriage of justice, the guilty are about to escape punishment, likely to commit another offence. The audience is made to sympathize with those striving for justice. A number of films are raising the stakes even higher, when an inexperienced lawyer has as first case a client facing the death penalty. The reward is to establish themselves in their career, saving a man’s life. The threat is utter failure. In the Polish masterpiece A Short Story About Killing (1988), the rooky lawyer experiences defeat: the socialist state decides to hang the troubled teenager who ended the life of a taxi driver in what is known as the longest murder scene in film history. In desperation, the lawyer visits the president of the court, to learn if he could have achieved more. The older man replies that there was nothing he could have done, he only wished that they had been better judges.

In depictions of crime and justice, readers and viewers are typically invited to identify with at least one of the key figures. Most of the time, the audience is made to sympathize with a police detective or a lawyer. But not exclusively so; for example, the drama Der gerechte Richter (Germany, 2000) is about the choice of an idealistic judge not to take part in Stalinist injustice and to rather face severe mistreatment. Sometimes the public, in whose name justice is administered, finds itself represented in a film. For example, the passing of time and the progress of a case can be depicted by showing a series of newspaper front pages. The viewer is put in the position of a reader looking at the papers. Juries are supposed to represent the people in court. The camera in American productions is often positioned inside the jury box, and the events unfolding in the courtroom are seen from the perspective of one of their members (Machura & Ulbrich, 2001, pp. 126–127). The lawyers speak directly to the viewer. Once more, the audience is drawn into the story.

Following Durkheim’s ideas, readers and viewers are to no small degree driven by an interest in seeing justice done. Judges, police, prosecutors, lawyers, and other professionals are supposed to work toward this end. The appearance of weak and strong authorities, of heroes, is key to popular crime stories. It is here that the standard formula of Hollywood storytelling casts its spell. The one person who makes a difference is at its very heart. In The People Against O'Hara (USA, 1951), for example, a lawyer played by Spencer Tracy seems to sink ever deeper into alcoholism and threatens to be of no use at all. He nevertheless turns the case around in the end. The ultimate lawyer-hero, however, must be Young Mr. Lincoln (USA, 1939). John Ford’s film alternates between showing the future U.S. president acting admirably and at other times unsuccessfully in court. He eventually achieves a stunning victory. The final cuts show Henry Fonda’s figure blending in with the shining white statute at the Lincoln Memorial, to the refrain of “The Battle Hymn of the Republic”: “Glory, glory hallelujah.”

For there to be drama, heroes need to have powerful adversaries. Rafter (2006, p. 136) wrote of “justice figure” and “injustice figure.” Concerned lawyer and judge representatives sometimes misread this constellation and complained that popular culture paints a negative image of their profession. But it is typically the villain who is punished toward the end of the story, at least losing his case and occasionally his life. Inherit the Wind (USA, 1960) is inspired by the famous Skopes trial of a teacher who defied state law to teach the theory of evolution in school. Here, the fanatic prosecutor Brady outs himself as self-indulgent and finally dies from a stroke. In television series especially (Asimow, 1999/2000, pp. 557–578), which need to attract viewers time and again, the audiences expect the heroes to be regularly successful against adversaries, and the story writers oblige.

Solving a crime mystery and discovering evidence often form a thrilling aspect of stories on crime and justice. The police detection and the private-eye genres are exactly focused on this. Courtroom dramas and other shows blend in with their success formula. Public prosecutors form a link between detection and trial. On her first day as Assistant Prosecutor, Judith Jansen, in Lucia de B. (The Netherlands/Sweden, 2014) proudly shows around her dissertation on “Profiling and Chain Argumentation,” marked “with distinction.” The fatal events set off when she wrongly makes a nurse the suspect for a series of baby deaths in hospital. Having learned about her mistake, Judith Jansen later breaks into the office of her superior to locate suppressed evidence in favor of the nurse. Film and TV lawyers often collaborate with paralegals or in-house detectives to solve crimes. In the German Anwalt Abel (1988–2001) series, the lead character investigates cases himself and is supported by his secretary, Jane. In the U.S. series The Good Wife (2009–2016), a cynical Calinda Sharma exploits her sex appeal to gather evidence, and crosses the line to committing serious offenses.

Greenfield and Osborn (1995, p. 120) once wrote about “lego-films” to characterize the formulaic nature of many productions. Experienced viewers will be able to recognize certain patterns of action. This is not necessarily off-putting. The concept of “genre contract” can be evoked here. The media makers are assured that the public will buy their product or switch on their devices as long as they offer them an intelligent variation of previous films, TV series, or printed stories. The public, in turn, feels they can rely on being served up content they prefer. While this has a conservative element, there is also an inbuilt mechanism of regeneration and change. Even if the change only involves a recombination of proven formulas. Viewers may watch The Caine Mutiny (USA, 1954) for its qualities as courtroom drama or as war movie, and there even is a love story between the youngest officer and a bar singer. Ideal for the whole family to have an evening together at the cinema. Self-reference of film can be an additional delight for the connoisseur. Viewers who have seen many courtroom dramas may compare specific scenes with those they already know and notice the development, or absence of, between certain examples.

Stories are another ingredient of crime and justice entertainment and documentaries. They are already important for obtaining an indictment or making a defense in court. “In the courtroom, whoever tells the best story wins,” declares lawyer and statesman John Quincy Adams in Amistad (USA, 1997). Bennett (1978, p. 4) wrote, “stories are powerful means of transmitting precise interpretations of distant and complex events to people who either did not witness those events or who did not grasp them from the storyteller‘s perspective.“ Much effort goes into developing the right story for a media product. For a judge show on German television, a team of lawyers and scriptwriters scanned crime reports in newspapers, rulings reported in law journals, and other sources for ideas. Audience reaction was systematically studied to further select the most promising stories. The U.S. lawyer series The Good Wife (USA 2009–2016) made it its trademark to base episodes on causes célèbre and current legal-political controversies. Moreover, there is the story in the trial and the story of the trial (Jackson, 1996, p. 27). One consists of the murder or other crime committed, and the other may be about the attempted manipulation of evidence, police bias, and lawyer trickery.

Stories may pick up on powerful cultural narratives, such as the parable of the lost son, the rape myth, the myth of the treacherous “alien,” or the narrative of God’s own suffering people. As these examples show, they are sometimes taken from religious belief or nationalistic tales. “We see with the interpretive frameworks we bring to events as much as we see with our eyes.” (Scheppele, 1994, p. 96) Alluding to the fable of the lost son, in the Star Chamber (USA, 1983), a disillusioned judge joins a conspiracy of colleagues who seek to serve justice as they see it. They review cases where they think a guilty defendant got off. Yet the judge repents, stops the hired killer, and the final scenes show him in league with police acting against the vigilante judges.

Finally, as Black (1999, p. 142) pointed out, stories must be believable. At least for a moment the recipient must be able to give up her disbelief or a film, book, or television series would not work. It is an art of its own to involve audiences into goings-on that on cool reflection cannot be real. Discussing Witness for the Prosecution (USA, 1957), Bergman and Asimow (1996, p. 186) argue that the title could just as well have been “Why the Spousal Privilege Prevented Testimony from a Witness for the Prosecution.” As long as the defendant believed that he was legally married, he was protected. In the Japanese masterpiece Rashomon (1950), the ghost of the deceased samurai tells his story in court through a medium. This may only work because many of the other conflicting testimonies are introduced through flashbacks in which witnesses recalling their experiences and because it is prepared by the exotic sensation of a shamanistic ritual. Pop cultural products are often given a degree of leeway that allows the storytelling to transgress logic.

While there are inherent qualities in crime and criminal justice topics lending themselves very well to entertainment, there also is a dominant place of production for the world market.

The American Template

Given a powerful media industry, a complex and sometimes controversial justice system, and a long history of severe, often particularly violent crime, the criminal justice system in the United States, moreover, its fictionalization, forms the pattern that is followed by many products around the globe. When it comes to depiction of lawyers, courts, and related institutions, cultural globalization takes on an American flavor (Machura & Ulbrich, 2001).

The United States has a rich cultural repertoire of crime legends. Printed media in the 19th century was already sensationalizing violent events taking place in the West during the territorial expansion of the nation. In John Ford’s The Man Who Shot Liberty Valence (USA 1962), the newspaper editor prevents the lawyer-politician from making the disappointing truth known: “This is the West, sir. When the legend becomes fact, print the legend.” Cinema eagerly exploited crime stories such as that of the bank robbers Bonny and Clyde (Bonny and Clyde, USA 1967), visualized Wyatt Earp’s vita of horse chief and town marshal (e.g., Wyatt Earp, USA 1994), or famous trials like the one against Dr. Samuel Mudd (Prisoner of Shark Island, USA 1936). Moreover, famous lawyer figures, even those who went into politics like the abovementioned Abraham Lincoln and Daniel Webster, became film heroes. In parts of the United States, crime is a real threat to citizens, as evidenced by the number (Lubkin, 2013) of gun-related deaths. The country also has one of the largest prison populations in the world (Collier, 2014; Ogletree & Sarat, 2015, p. 2) with many more perpetrators being monitored by justice agencies.

Having accumulated the economic means and attracted the world’s best talents, Hollywood eclipsed other film industries for most of the 20th century. The system of self-censorship developing in the 1920s and 1930s (Springhall, 1998), as a side-effect made sure that films were palatable for the widest possible, indeed a world, audience. Its provisions (Motion Picture Association of America, 1930) obliged filmmakers to present the law as victorious in the end, and required that legal institutions and officers of the law be portrayed in a positive light. For dramaturgical reasons, there were villains and injustice had to threaten, but the final message was to be a reassuring one. There were other kinds of tales occasionally, and with the cultural turn of the 1960s, more critical films were made (Chase, 2002). In And Justice for All (USA, 1979) the protagonist learns that moral corruption has become a prerequisite of being able to serve as lawyer or judge. “You are out of order,” he shouts at the trial judge. Yet large parts of the audience at the time, in countries like France and Germany, were being affected by the same currents, and thus the films had their markets. Later cultural changes were equally successfully mastered by the U.S. film industry. For example, female characters are since at least the 1990s more frequently seen in powerful positions and more often favorably portrayed, or, what is perhaps the true test, feature as formidable villains.

In addition, some aspects of U.S. justice, especially criminal justice, very much allow fictionalization, especially in visual media. In some Latin American countries, a trial often is conducted through paperwork; in many European countries, the trial is conducted in open court but with a judge taking the evidence and only complementary action by lawyers; and in totalitarian states, the court hearing just enacts a foregone conclusion. By contrast, the U.S. court trial resembles a public duel between the two parties. In German courts, the leading idea is that judge and lawyers act as a kind of team to establish what the case is (Machura, 2007b); in a U.S. court, judges and jurors are presented with competing versions of the truth. Despite that in reality the jury is used only rarely and most cases are decided through plea bargaining by the prosecution and the defense or dealt with swiftly by a single judge, most U.S. courtroom dramas show aspects of a full-blown jury trial. Again, these have specific theatrical qualities that are not found in other jury countries. Already in the process of jury selection, the inbuilt tension between the ideal of the unbiased jury, on the one hand, and lawyer strategies to get a sympathetic jury, makes for entertainment. The election of judges and prosecutors, common in the United States but not known to most other parts of the world, is a double-edged sword and can play out in very different ways (Machura, 2008). On the one end of the spectrum there is John Ford’s wonderfully human Judge Priest (USA, 1934; also The Sun Shines Bright, USA, 1953) about a judge who has excellent rapport with the people of the town; on the other end, there are the scheming, manipulative prosecutors of The Good Wife (USA 2009–2016). Punishment can be draconian in the United States. The death penalty is imposed and carried out in some states. Under the “three-strikes laws,” people with a criminal history of petty crimes have been placed in long incarcerations. Accordingly, the stakes can be high, making good material for news, fiction, and documentaries. And these are only some of the features that lend themselves to tales of pop culture.

The legal profession is one of the defining ingredients of U.S. popular legal culture. Again, the peculiarities that make it worth depicting in films and television become clear from an international comparison. To start with, a hierarchy of law schools casts a shadow over the careers of graduates (Asimow & Mader, 2006, p. 61). This is less so in, for example, England and Wales, where lawyers receive their final preparation in the Inns of Court and it seems to matter less where they studied. In countries like Germany, all future lawyers, judges, and prosecutors go through a common apprenticeship and only then specialize. The key differences have to do with personal achievement in rigorous final exams. U.S. fiction can juxtapose a Georgetown or Harvard graduate with one from an institution well down the league table. Then there are the “two hemispheres” (Heinz et al., 1998): lawyers working in large law firms for the government or big corporations, in contrast to the rest who subsist on a diet of meager pickings, some having to defend moneyless clients. Rich lawyers seem suspect to Americans (Pfau et al., 1995, p. 307; Asimow, 2001). It is legal for lawyers to advertise their services in the United States, even in television spots, but advertising is closely controlled in other countries, where the size of his or her shingle may be about everything a lawyer has to compete with. Some American lawyers operate according to the “business model”: aiming for profit and, if necessary, taking any steps short of openly breaking the law or the lawyer ethics code in order to win cases (Asimow & Mader, 2006, pp. 212–213). Michael Asimow (1999/2000, p. 562) classified film lawyers according to whether he and his assistants would like to have that character as a friend or as their lawyer. Drawing on the psychological cultivation theory, he argues that frequent and recent exposure to films with unfavorable portrayals of lawyers forms a negative perception of the profession as a whole (Asimow, 1999/2000, p. 556). However, frequent dealings with lawyers can also contribute to negative stereotypes (Macaulay, 1987, p. 187; Asimow, 1999/2000, p. 542; for a German sample, see Machura, 2015, pp. 408–409). People in the United States have a peculiar relation to lawyers, they elect them to high public office on the one hand, and on the other, make them objects of public ridicule (on lawyer jokes, see Galanter, 2006). In contrast, lawyers are a less prominent profession in other countries, and in some, such as Germany, for example, they fare comparatively well in trust surveys (Machura, 2015; with a recent dip, Zitka, 2016, p. 14). Having a rich variety of lawyer stereotypes in the public conscience allows the telling of lots of stories in an easy-to-follow fashion. To these aspects, the more active role of lawyers in U.S. courts can be added. They are the movers and shakers, and if the ethics of some is perceived as dubious, news and entertainment are nonetheless guaranteed. The dominant pattern of storytelling, however, requires that bad and failing lawyers are pushed aside by heroes who set things right. But what is the function of lawyers in the justice system? They translate people’s problems into the language of the courts, they operate the key levers of the justice system. They reconstruct interests in terms of rights and raise them.

Cinema of Rights

Films and, increasingly, TV series related to law inform the public about rights, including human rights, and the procedures to uphold and defend them. Law-related films and series are among the most popular media genres. In addition, they attract some of the most creative filmmakers and tend to involve legal experts. In many cases, those expert lawyers like the film industry professionalsstrive to make a political point. In the tradition of Hollywood cinema, they construct powerful stories around the travails of their main characters. The audience is invited to sympathize with victims of rights abuse and to identify with the lawyers who are struggling to achieve justice. “Every person matters,” and “American justice is on trial,” declares lawyer James B. Donovan in Bridge of Spies (USA, 2015) to justify his decision to protect his client. Patterns vary, from the lawyer defending an innocent client unsuccessfully (e.g., To Kill a Mockingbird, USA, 1962) or successfully (e.g., Young Mr. Lincoln, USA, 1939) to the victorious victim who was defending his right not to be discriminated against (Philadelphia, USA, 1993) to jurors protecting an innocent person (12 Angry Men, USA, 1957) to the righteous officer of the law defeated by corrupt machinations (e.g., Open Doors, Italy 1990). Their efforts are opposed by “injustice figures” (Rafter, 2006, p. 136) exploiting their power and perverting legal procedures. This configuration effectively prepares the audience for a rights discourse. Genre-specific dramatization requirements expose viewers to a variety of tropes. These include examples of what can be perceived as rights abuses. Nevertheless, here, films and television series often suggest that having legal safeguards in place is more important than their occasional utilization for disagreeable ends. The overall main message of law-related films and television series amounts to an endorsement of the law as social mechanism to regulate behavior, with an inbuilt liberal agenda.

There have been press campaigns to alert the public to the plight of innocents suffering at the hands of a misguided justice system. The most notable example is the case of Alfred Dreyfus, who was falsely convicted as a spy, but eventually released from prison and rehabilitated. The motion picture has proven to be very effective in portraying human suffering and arousing audiences’ sympathy. Personalization of public legal topics is a major trait of those media and so attention is shifted from abstract legal rules to single cases, in which the needs of individuals often stand against abstract rules (Chase, 2002). In other instances, the rules have been distorted by corrupt individuals, and that is why there is suffering. Attention then quickly turns to the personae of the decision-makers (Röhl & Ulbrich, 2000, pp. 381–382). The moral limits of behavior and what constitutes justice can be discussed. The workings of the justice institutions can be questioned, as can who is entrusted with power. Occasionally, as in To Kill a Mockingbird, a tale of deep-rooted racism, society looks at its own shortcomings and injustices.

Representations of Law, Rights, and Criminal JusticeClick to view larger

Figures 1 and 2. The motion picture as medium lends itself to the depiction of emotions. In Lucia de B., the main character is dragged out of the courtroom after her sentence is upheld by the appeals court (Figure 1). Later, the devastated assistant prosecutor Judith Jensen confesses to Lucia in prison (Figure 2).

Source: Film still from Lucia de B.

In Lucia de B. suspicion falls on the title figure, a nurse who was around when the babies died, and who had previously worked at an old peoples’ home, where deaths were also allegedly happening too often. Lucia de B. behaves in cold manner, and she does not cooperate with the police. She has a criminal record for prostitution. The audience learns that as a defenseless child she was rented out to men by her own mother—and this is now turned against her as evidence of bad character. Even after Jansen demonstrates Lucias innocence, her boss declines to drop charges. The press creates a public climate of enmity, turning the nurse into a folk devil. The appeals court reinstates the original verdict. “I have not done this,” the accused shouts in desperation and is dragged away by officers (Figure 1, top). Only much later is her name cleared and she begins to educate the public about criminal justice. The most pitiful figure, however, is cut by Judith Jansen, when she visits Lucia de B. in prison and asks for forgiveness (Figure 2).

Representations of Law, Rights, and Criminal JusticeClick to view larger

Figure 3. In Amistad (USA, 1997), numerous parties line up in court to raise legal causes.

Source: still from Amistad.

Not only do they portray human suffering, mainstream law-related stories also offer up the notion of rights as a panacea. Everyone has rights that can be pursued with the help of lawyers who are morally and technically up to the task. The courts are the place to fight for justice. A stunning example of this tradition is Stephen Spielberg’s Amistad (USA, 1997). In this story based on a historic case from the mid-19th century, a group of Africans is at the heart of the events. Out on the ocean, they rose up against the crew of the slave ship, were subsequently taken prisoner by a U.S. Navy frigate, and now stand trial. The procedure starts with the most astonishing variety of parties’ claims (Figure 3):

  • The district attorney representing the state brings charges of piracy and murder against the group.

  • The defence lawyer demands habeas corpus rights for his clients.

  • The queen of Spain claims the “slaves” as property to be returned and is represented by the U.S. secretary of state based on an international treaty.

  • The frigate’s navy officers, as private citizens, claim “salvage of the high seas of ship and all her cargo.”

  • Señores Ruiz and Montez demand their “goods” and wave a purchase contract.

  • The Africans want freedom and to be returned home.

In a long and winding story, the Africans and their supporters, led by two lawyer heroes, one young and inexperienced, the other an ex-president, in the end sway the Supreme Court to free the Africans, despite political intervention. This is the metanarrative of popular legal culture: people have rights that can be defended in court.

Lawyer Heroes and Rule of Law

Films and TV series on criminal justice and its institutions have a profoundly political subtext. Not only do they educate the audience about the rights that can be claimed in court and legitimate legal procedures; they also point at the people who are expected to handle the business of making justice a reality: lawyers (Greenfield & Osborn, 1995, pp. 107, 120). Although, in the United States and other countries, law is seen as something that can be understood by lay people, for example by a jury. Law as a technical subject, inaccessible to the scrutiny of the people, is depicted as suspicious even. The law needs to be rooted in basic understandings of right and wrong. In Young Mr. Lincoln (USA, 1939) the title figure, studying Blackstone’s Commentary of English Law, the “living law” (Ehrlich, 2002) of the Americans by implication, and pondering a legal career, is pleased to find that it is about exactly that. In court, he stops the all-to-eager prosecutor in his tracks: “I may not know much of law Mr. Felder, but I know what's right and what's wrong. And I know what you're asking is wrong.” Audiences very much respect on-TV and on-screen heroes who, as their trustees, solve crises, who know better about the law, about right and wrong, than the other characters depicted (for TV judges, Porsdam, 1999, pp. 102–105). In the film, Lincoln’s interest in law starts when he is handed Blackstone’s Commentary by humble, even illiterate farmers. The latter in a mythical connotation standing in for the nation (Böhnke, 2001, p. 53). Lincoln prevents the lynching of his clients and stops a miscarriage of justice, demonstrating better judgment than people in the town and lawyers alike, but always only acting as an instrument of the true law of the people. This simple concept is bound to upset critics. But as Greenfield, Osborn, and Robson (2001, p. 115) and others argue, the audience measures lawyers, on-screen and off-screen, by such an ideal.

The institutions of law must allow the just application of the law in fair procedures. On a very basic level, many films and television series point out the importance of a separation of powers. Political might does not triumph over the due process. The rule of law—and not of man—needs to be safeguarded. Countless films draw their themes from transgressions between the legal and the political systems and entertain and educate the audience by depicting a heroic struggle to stop corruption. In Amistad, John Quincy Adams, is asked how his successor in the office of president of the United States could have possibly interfered with the Africans’ trial unchallenged. Adams points to one of his potted plants: both arms of power, the courts and the executive, share the same stem. Herein lies the danger so often alluded to in popular culture.

Films and television shows outlining the abuse of power by private forces and the superiority of legal instruments are also a staple of popular fiction. The state monopoly on the legitimate application of physical force (Weber, 1997, p. 272) is typically advocated. In the episode “Room Number 2,” Inspector Montalbano, the title figure of the Italian series The Young Montalbano (2015), learns that the sales agent, Custonaci, makes his living by mediating conflicts between mafia families. The scene that is relevant here takes place in a barn, as Custonaci places green olives where they can be crushed by the stone wheel of an age-old mill. Confronted by Inspector Montalbano, Custonaci professes, proudly, to have stopped an outbreak of war between the Cuffaro and the Sinagra families. He made the clan elders accept that a brute related to one mafia family is allowed to avenge the rape of his sister, committed by a member of the other family. It is then arranged that the police find the murder weapon in the avenging brother’s house, so that the clans are even. As Montalbano hands Custonaci over to uniformed police officers for his part in the horrible deal, the camera shows the giant stone wheel in the foreground at a standstill, the olives are safe for now.

Similarly, the superiority of modern state law over outdated traditional justice is another topic of popular culture. The hit slapstick comedy Kidnapping, Caucasian Style (USSR, 1967) tells the adventures of an anthopoligist visiting the remote region. The local council leader takes an interest in an unwilling local beauty and resorts to the age-old practice of kidnapping her as precursor to marriage—yet, he and his accomplices fail miserably. Exercising a crude form of citizens’ arrest, the girl’s friends stage a prank. Told by the girl’s cousin that he would be dealt with according to the “law of the mountains,” and threatened that “you will wash your sin with blood,”1 the gentleman pleads to be brought before a Soviet court. In the end, the perpetrators stand a regular trial (Figures 4–7). There is a further twist to this in that many Russians are critical of state courts, too. In the comedy, the defendant with the weakest nerves frantically applauds the Soviet court, calling it “the fairest court in the world!” Thi man goes by the name “half-idiot” in the film, and he has just repeated a slogan that appeared on posters in Soviet courts. Russians still invoke the “half-idiot” when making cynical remarks about contemporary courts.

Representations of Law, Rights, and Criminal JusticeClick to view larger

Figures 4–7. The comedy Kidnapping, Caucasian Style (USSR, 1967) mocks traditional custom to settle grievances as well as Soviet courts.

Source: stills from Kidnapping, Caucasian Style.

Warnings against self-appointed judges taking the law into their own hands and vigilante justice abound in American popular culture. In The Life and Times of Judge Roy Bean (USA, 1972) and other films, such as The Westerner (USA, 1940), the “Judge” terrorizes the town. The dangers of lynching are made present in Young Mr. Lincoln (USA, 1939) and The Hanging Tree (USA, 1959). Vigilante justice appears in a variety of other constellations, too. Having apprehended three suspects, a posse in The Ox-bow Incident (USA, 1943) forms a kind of ad-hoc jury but reason fails to win out. Just as the three have lost their lives, the sheriff arrives and breaks the truth that they were innocent. Films like the Star Chamber (USA, 1983) and Minority Report (USA, 2002) make clear that experienced judges acting on their own, and even futuristic technology, should not replace proper legal procedures, or life becomes very cheap.

Regular court trials and decisions by judges and jurors appear as the norm in popular culture. Alternative methods of case disposition, if they appear at all, are shown as problematic, if not as corrupt, practices. In the episode “Doubt” of The Good Wife, plea bargaining results in a complete injustice. The trial did not go well for a young woman accused of murdering a fellow student out of jealousy. Only toward the end of the program is the defense team able to present the exonerating expert evidence. Just when the jury has voted unanimously to acquit, the judge enters and dismisses them because there has been a plea bargain. Pressured by her mother, who wanted a chance to see her daughter leave prison in her lifetime, and against her lawyer’s advice, the in all likelihood innovent defendant had accepted responsibility in exchange for a shorter sentence.

Injustice: Historic Cases, Military Courts and National Tradition

If the institutions of criminal justice, including lawyers and judges, are predominantly portrayed favorably, historic cases and military justice are shown in a rather different light. Here, films and television series warn of abuse of power and of rampant bias (Kuzina, 2002, 2005; Greenfield et al., 2001). When it comes to military courts, there is even a structural problem: they lack independence. Those higher up the command chain interfere with trials. Individualized justice, the hallmark of a proper justice system, is replaced by the necessities of war, political interests, and even the self-interest of senior officers. The World War I drama Paths of Glory (USA, 1957), exemplifies the subgenre. Colonel Dax, a lawyer himself before the war, cannot prevent the sacrifice of his men, either in a staged court martial for cowardice or at trench warfare. So critical was the message of the film that it was banned in France (Bergman & Asimow, 1996, p. 79).

In addressing historic cases, producers are able to draw on public awareness of high-profile crimes and trials, and in many cases, the audience has not fully come to terms with the events. Lucia de B. exemplifies a scandalous real trial. In other stories miscarriages of justice are at least threatening (e.g., Inherit the Wind, USA, 1960). In the United States, the death penalty has been attacked in films that dramatize real cases, as in I Want to Live (USA, 1958), a drama about the fate of a young mother on death row. In films about historic trials, independent and reasonable justice is in danger. Judgement of Nuremberg (USA, 1961), is a powerful fictionalization of the postwar trial against leading Nazi jurists, one of the proceedings against various Nazi elites which followed the more widely known trial of the main perpetrators of war crimes. The film introduces evidence actually used at the Nuremberg trials, including films documenting the horrors of concentration camps. Even here, the film’s hero, an American judge played by Spencer Tracy, has to overcome all sorts of attempts to influence his decision.

When the fictionalization of historic cases and military justice come together, the result is an indictment of systemic failure and character weakness. A prime example is the French television production L’affaire Dreyfus (1995). Machinations include the investigating officer forging key evidence and a uniformed messenger entering the judges’ deliberation room conveying an order to read a paper that cannot be challenged by the defense. In The Prisoner of Shark Island (USA, 1936), before the trial starts, the military judges are instructed to be hard and even to disregard the rules of evidence. Consequently, Dr. Mudd’s defense is doomed. Defense witnesses in Breaker Morant (Australia, 1980) are conveniently transferred to India, the defense attorney only receives the dossier in the last minute, and this is only the start of the trial. Contrary to recognized military custom, even the defendants’ extraordinary bravery in repelling a Boer attack on the compound does not win them the slightest mitigation.

Criticism of the justice system in mainstream productions falls short of what the subgenres of the court-martial film and the historic-injustice film present. Productions may reflect the audience’s unease with the way the courts work in a specific country. But the relation between media portrayal and public opinion on the agents of law is not necessarily unambiguous. In a study with law students in North Wales, the consumption of fictional law series was found to have no effect on their trust in the courts, while respondents who had seen more TV reality-police shows had lower trust in the courts (Machura et al., 2014, pp. 297–298). Reality police series invite viewers to identify with the crime-fighting police, and as the credits roll, the audience typically learns that lenient sentences were given to perpetrators. Italian courts are famous for long trials, and Italian judges are accused of not working hard enough (on the perceived length of trials, see European Commission, 2013, T15, T23, T31). So in the episode “Find the Lady” (2006) of the series Il commissario Montalbano (1999–present), the viewer finds Judge Scognamiglio at his desk, passing time by constructing a ship in bottle (Figure 8). When the busy Montalbano enters, the judge only just has time to cover the object with a newspaper.

Representations of Law, Rights, and Criminal JusticeClick to view larger

Figure 8. Italian popular fiction often depicts officials failing to tend to their duties.

Source: still from episode “Find the Lady” (2006) of the TV-series Il commissario Montalbano (Italy, 1999–present).

There are specific traditions within the law and crime-film genre that contain harsh critique. French and Italian productions often depict the heroic but failing struggle of an individual in a the system that has itself been corrupted. In such stories, organized crime is well represented in the law-enforcement agencies and in politics or a caste of upper class people make sure they stay above the law. In Germany, abuses of power during totalitarian rule, as well as widespread protection of colleagues against reckoning, form a major trope (Machura & Böhnke, The Legal System in German Popular Culture in this encyclopedia). In the United States, a predominantly liberal tradition in which lawyers and courts championed the rights of the people was interrupted by more cynical portrayals in the 1970s, and was followed by more varied depictions in later years. And there are genres, such as the vigilante film, in which the justice system has failed a single citizen, who then takes matters into his own hands (Robson, 2016).

These subgenres and developments in law and crime-related films and television series notwithstanding, the message overall is more upbeat, in part out of dramaturgical necessity, resulting in the following of a specific metanarrative. A specific political perspective on criminal justice is supported.

Liberalism as Overall Political Message

Films and television series in the Hollywood tradition emphasize the contributions of individuals to community affairs and their development into citizens or professionals successfully taking responsibility. This inbuilt heroism nurtures high expectations among people for officials and authorities. Popular culture even assigns roles and responsibilities to viewers should they ever be faced with issues related to criminal justice (Podlas, 2001; Machura & Kammertöns, 2010; Machura, 2011). As citizens and voters, they are to play their small part in the upholding of the norms of society against transgressions and to support the legal system.

Part of the liberal agenda is a certain ecology of trust. Following a Durkheimian perspective, a society shares a deep-rooted interest in social cohesion, is on the look-out for signs of disintegration, and feels more secure if rule breaking can be punished. Therefore, people want to endorse the authorities, but they are critical of any detrimental developments. Confidence levels vary based on a number of circumstances (see Machura, 2011). In Northern and Western Europe, for example, people predominantly trust in law, its institutions, and professions. Citizens in Scandinavian countries, in particular, rate them highly. In Eastern and Southern Europe, with a legacy of authoritarianism and private abuse of state power, trust is less developed. Romania and Bulgaria are on the most negative end in surveys, close to Russia (Machura, 2011, pp. 244–245). In parts of the world where the reality falls short of basic ideals of justice (see the Argentine case in Asimow et al., 2005), pop culture representations of, say, American lawyers or German police officers, despite all complexities, suggest the direction for reform to take.

The culturally dominant depiction of the justice system is on balance positive: for dramaturgical reasons, lawyer heroes win their cases most of the time, judges are often wise and trustworthy, and the law, as well as the courts, are useful instruments for advancing one’s good cause. Furthermore, the choice of topics often suggests a liberal political perspective. Countless films introduce the perils of manipulated trials and attack cruel punishments. Film and television make the public aware of rights and emphasize good lawyers and impartial judges as arbiters of justice. Alternative forms of “justice” are shown in a very bad light. In this context, even the most critical works find their place: as an indictment of those deviations from the rule of law. This must be the essence of a liberal perspective on criminal justice: the system with its proper features may work—but does not deserve blind trust.

For descriptions of films and television series: the Internet Movie Database.

A list of the “25 greatest legal movies” has been collated by the ABA journal. Similar lists with commentary have been compiled by, for example, newspapers or film enthusiasts.

Another digital source are lectures that are put online, for example:

A talk by Jessica Silbey “A History of Law in American Film” is included in: https://blogs.loc.gov/law/2016/08/law-library-event-the-depiction-of-law-in-film-and-television/.

Presentations by Peter Robson, “Women Lawyers on TV: The 21st Century Experience,” and Stefan Machura, “Liberalism and Law in the TV-series The Good Wife,” at the 2014 conference of the RCSL Working Group on Legal Profession can be accessed at: http://www.fernuni-hagen.de/videostreaming/rewi/ls_haratsch/legalprofession14_43.shtml.

Further Reading

Any understanding of crime and justice as depicted within popular media has to start with content analysis. For an introduction that can be also used as basic text in crime, law and media classes, see Asimow and Mader (2006). An instructor’s manual is available. (For suggestions how to teach a Law in Film class see also Machura, 2016). An accessible introduction to crime films can be found in Rafter (2006).

For a guide to analyzing film and television, also in an educational setting, see Machura (2007a). As an example employing the analysis scheme, see Machura and Davies (2013).

Greenfield, Osborn and Robson’s (2001). Film and the law. The cinema of justice (is a very encompassing and theoretically grounded book that summarizes the authors’ scholarship. For an early treatment of law in film see: Black (1999).

Books about the United States or written from a U.S. perspective and following the twists and turns of the country’s popular and legal culture include the following:

Chase, A. (2002). Movies on trial: The legal system on silver screen. New York: New Press.Find this resource:

Denvir, J. (Ed.). (1996). Legal realism: Movies as legal texts. Urbana: University of Illinois Press.Find this resource:

Harris, T. J. (1987). Courtroom’s finest hour in American cinema. Metuchen, NJ: Scarecrow Press.Find this resource:

Kuzina, M. (2000). Der amerikanische Gerichtsfilm: Justiz, Ideologie, Dramatik. Göttingen, Germany: Vandenhoeck and Ruprecht.Find this resource:

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

Porsdam, H. (1999). Legally speaking: Contemporary American culture and the law. Amherst, MA: University of Massachusetts Press.Find this resource:

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

Sherwin, R. K. (2000). When the law goes pop. The vanishing line between law and popular culture. Chicago: University of Chicago Press.Find this resource:

Another category of volumes contains a critical discussion of individual films, mostly Hollywood movies. Bergman and Asimow’s (1996) widely read publication comes in the guise of a film guide. As edition of articles on film, which can be recommended to students and scholars alike, see Strickland et al. (Eds.). (2006).

Many articles can be found in the journal Legal Studies Forum. Some special issues of other law journals dealt with the topic, they include:

Kershen, D. L. (1997). A Symposium on Film and the Law. Oklahoma City University Law Review, 22(1).Find this resource:

Denvir, J. (Ed.). (1996). Symposium: Picturing Justice: Images of Law and Lawyers in the Visual Media [Special Issue]. University of San Francisco Law Review, 30(4).Find this resource:

Marder, N. (Ed.). (2007). Symposium: The 50th Anniversary of 12 Angry Men. Chicago-Kent Law Review, 82(2).Find this resource:

Some edited books bundle articles on the oeuvre of certain film directors, critiques of films and TV series, as well as more general and theoretical discussions, occasionally even touching on audience effects. As examples:

Asimow, M. (Ed.). (2009). Lawyers in your living room. Chicago: ABA Press.Find this resource:

Freeman, M. (Ed.). (2005). Law and popular culture. Oxford: Oxford University Press.Find this resource:

Machura, S., & Robson, P. (Eds.). (2001). Law and film. Oxford: Blackwell and also as a special issue of Journal of Law and Society 28(1).Find this resource:

Machura, S., & Ulbrich, S. (Eds.). (2002). Recht im Film. Baden-Baden: Nomos.Find this resource:

Picart, C. J. S., Jacobsen, M. H. & Greek, C. (Eds.). (2016). Framing law and crime: An interdisciplinary anthology. Lanham, MD: Fairleigh Dickinson University Press.Find this resource:

Robson, P., & Silbey, J. (Eds.). (2012), Law and justice on the small screen. Oxford: Hart.Find this resource:

Robson, P., & Schulz, J. (Eds.). (2016). Law and justice on TV: A transnational study. Oxford: Hart, observes and compares the television programming of different countries over four weeks in October 2014.Find this resource:

Sarat, A. (Ed.). (2011). Imagining legality. Tuscaloosa: University of Alabama Press.Find this resource:

Sarat, A., Douglas, L., & Umphrey, M. M. (Eds.). (2005). Law on the screen, Stanford, CA: Stanford University Press.Find this resource:

Stürmer & Meier (Eds). (2016). Recht Populär. Baden-Baden, Germany: Nomos.Find this resource:

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Notes:

(1.) Thanks Dr. Olga Litvinova for help with translations.