This is a little different from my normal blog posts. No recipes today, just a conversation about television procedurals and the law. Please comment, ask questions and get involved!
I love procedural television shows. Law and Order, Criminal Minds, The Closer, the excellent but short-lived Unusuals — I like ‘em all. However, there comes a point in every show where I get rankled by the disregard for actual law in favor of an easy plot point. For instance, the whole idea that a trial happens two weeks after an arrest is ridiculous, but I remind myself of the need to increase the pace for the purpose of creating an engaging show.
However, my willingness to suspend disbelief comes to an abrupt halt when I reach that moment in a television show when it falls on the victim to decide whether to press charges against a defendant. The victim wrings his or her hands and agonizes over the decision and engages heartfelt discussions about whether she could put someone in jail. At this point, I usually find myself shaking a fist and yelling “NO” or “WRONG” at the screen.
The victim has no authority to make that decision. The power to bring formal charges and to decide what charges to bring lies solely within the discretion of the prosecutor. A prosecutor may, and often will, take the victim’s desires into account when determining how to proceed, but the prosecutor is not the victim’s attorney and does not have to abide by those wishes.
This issue recently came up in an episode of Bones. I’ve been watching Bones for years and thoroughly enjoy it. So imagine my disappointment when a recent episode featured Doctor Saroyan struggling with the moral dilemma of whether to press charges against the woman who ruthlessly and remorselessly stole her identity. Not only did Doctor Saroyan debate whether to press charges, but she had to decide whether to bring the case as a felony or misdemeanor, all while under pressure from her boyfriend forgive the defendant and let her off the hook. To add insult to injury, the character is a federal coroner, as well as a former NYPD officer, who works closely with the US Attorney’s Office. She should know better.
At first glance, this may not seem like a big deal. After all, television takes many liberties with the law, why is this one any different?
Well, first of all, it’s blatantly wrong. The fact that the prosecutor makes these decisions is not an obscure procedural error, tricky rule of evidence or timeline crunching. It’s a pretty basic component of how our justice system works. Out of curiosity, I did a web search for “how are criminal charges brought?” The very first site I found clearly states that the prosecutor decides whether to prosecute and which charges to bring, so clearly either no one bothered to check whether there was any basis for Doctor Saroyan’s moral dilemma, or no one cared that they were getting it wrong.
Correctness aside, perpetuating the misconception that the victim controls prosecution has real life consequences. We live in an era where the general public learns more about law from fictional television programs than in school and therefore these television procedurals have a lot of power to shape how people view the system and how they think it works.
“How could you do this to me?” “If you ever loved me you’ll drop the charges.” “If you don’t drop the charges, I’m going to kill your [child, dog, cat, mother, etc.]” These are all common phrases heard on jail telephone recordings when the defendant is blaming the victim for the prosecution and demanding that he or she drop the charges. These conversations are often followed by the victim informing the prosecutor that he or she does not wish to pursue prosecution and begging for the charges to be dropped. If the prosecution goes forward, the defendant often blames the victim, which can put him or her at risk of further violence.
A victim should not be made to feel that the burden of prosecuting someone is on his or her shoulders. How could a victim of domestic violence be expected to decide whether to prosecute his or her abuser? The victim would have to fight through fear, love, hate, more fear, financial concerns and familial pressure, to name a few influences. Then there’s all the aforementioned blame. Prosecutors have emotional and physical distance from the crime and perpetrator, which puts them in a better position to evaluate the case and made those decisions. Furthermore, prosecutors know the laws, the crimes, what evidence is admissible and a hundred other considerations that can only be understood through legal education and experience.
When television shows put the responsibility of prosecution on the victim, they also ignore an important consideration — the welfare of the community as a whole. Prosecutors serve the entire community, which is a victim when any crime is committed. In Bones, the defendant ran wild with Dr. Saroyan’s identity, which resulted in arrest warrants being issued for Dr. Saroyan, criminal investigations, attorneys, court time and jail time. Think of the resources used in finding the defendant, cleaning up the tangled financial records, sorting out the arrest warrants, prosecution and defense attorneys, to name a few, not to mention the businesses that may have been affected by the fraud.
Furthermore, the episode implied that this was not the first time the defendant had stolen an identity and her lack of remorse indicated that it would not be the last. Of course, this was never brought up as part of Doctor Saroyan’s deliberations. Doctor Saroyan only considered whether it was appropriate for her to take revenge on her old friend via prosecution. She never considered the welfare of the community or the repercussions of the defendant’s actions beyond how they affected her, and that’s entirely understandable. It makes complete sense that the victim of a crime would be concerned only with how the crime affected him or her, but that’s why we have independent prosecutors who can separate themselves from the crime and consider all these other factors.
So what did Doctor Saroyan decide to do? Alas, even though I hoped against hope that she would consider the law worth upholding, Doctor Saroyan decided not to prosecute the woman who blithely stole her identity and was absolutely a danger to the community. In fact, she suggested that to go forward with prosecution would be akin to losing her soul to the defendant. No! Wrong! I shake my fist at you, script writers! That decision lies solely within the jurisdiction of the prosecutor, which leaves Doctor Saroyan’s soul unsullied. The only soul searching Doctor Saroyan needs to do is about whether she wants to sue the defendant’s ass in civil court, because that decision is totally hers.