Autumn 98.book : Bandes.fm Page 5 Tuesday, November 3, 1998 10:14 PM Artides Lawyering Up Susan Bandes s Jack Beermann Pop quiz: You’ve just killed two people and there is no physical evidence or witness that can link you directly to either crime. Do you (A) shut your mouth or (B) visit the homicide unit and lie your ass oG? 1 ven amidst all the controversy pro- York police recount the typical story of a voked by the Miranda decision, there is suspect proclaiming: “I got the right to remain widespread agreement on one point: silent! You guys can’t trick me. I know my E 4 Miranda has led to one of the most successful rights! I watch TV!” public education eÖorts in history. Polls show If television is educating the American astonishingly high rates of awareness of the public about its Miranda rights, it is worth right to counsel and the right to remain asking exactly what the American public is silent.2 It is also widely accepted that the learning. There have been several studies success is largely attributable to the wide- examining various cop shows in order to assess spread dissemination of the Miranda warnings the attitudes the shows convey toward cops, on television and in other mass media.3 New suspects, and the assertion of constitutional Susan Bandes is a Professor of Law at DePaul University, and Jack Beermann is a Professor of Law at Boston University. Professor Bandes would like to thank her friend and colleague Wayne Lewis for their many discussions about NYPD Blue and for taping countless episodes of the show for her. She also thanks Paul Cassell for helpful comments on a draft of this article, and Michael Carter for his research assistance. Professor Beermann thanks John Mercer, Boston University School of Law class of 2000, for research assistance. 1David Simon, Homicide, 213 (Houghton MiÒin 1991). We relied heavily upon an unoÓcial NYPD Blue web site maintained by Alan Sepinwall who is a television critic for the Star-Ledger. Episode titles and most of the quotes and descriptions of episodes were gleaned from the web site, which proved more reliable than our memories. We also cite to the web site’s FAQ (Frequently Asked Questions) section, currently maintained by JeÖ Knapp. The web site can be found at www.stwing.upenn.edu/~sepinwal/nypd.txt.html. 2Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 649 (1996) (a national poll in 1984 revealed that 93% of those surveyed knew they had a right to an attorney if arrested, and a national poll in 1991 revealed that 80% knew they had a right to remain silent if arrested). 3 See e.g. Leo, id at 671. 4 Gunther, TV Police Dramas Are Teaching Civil Rights to a Generation of Viewers, TV Guide at 7, Dec 18, 1971. 5 Autumn 98.book : Bandes.fm Page 6 Tuesday, November 3, 1998 10:14 PM Susan Bandes s Jack Beermann rights.5 As devoted fans of the cop show help from Õlm and other mass media) our cul- NYPD Blue, we propose to use that show to ture’s principal storyteller, educator, and explore the messages communicated about shaper of the popular imagination.6 It not only Miranda and the conduct of police interroga- transmits legal norms, but also has a role in tions. NYPD Blue is particularly well suited creating them. Media images of law enforce- to this exploration, since it tends to treat the ment are, in the minds of many viewers, interrogation as the dramatic focus of the synonymous with reality.7 Thus the continual show. The exploration may also shed light on repetition of certain stock characters, certain an intriguing ancillary question. SpeciÕcally, if story lines, certain messages, has the ability to so many people know their rights, why don’t shape our expectations about the ways in more people assert them – both on tv and in which real cops, real suspects and real citizens real life? act – and ought to act – in the real world.8 What is the world portrayed on the cop The Popular Culture shows? Popular studies professors have Feedback Loop occasionally undertaken the onerous task of watching hours of television in order to assess The conventional wisdom about the dissemi- the portrayal of law enforcement. They have nation of Miranda has it that tv cops, with consistently found that, apart from a brief their continual litany of Miranda warnings, period in the late 1960s and early 1970s in have educated the American public about our which police (along with other government right to counsel and our right to remain silent. ofÕcials) were often portrayed as corrupt or Indeed television has been successful in get- inept, police work tends to be portrayed in the ting out the word about Miranda. But this is most heroic terms. The researchers have an oversimpliÕed picture in several respects. found that the constitutional rights of sus- First, there is the question, which we will pects are very rarely observed, and indeed, address in detail shortly, of what messages that unilateral, blatantly unconstitutional about Miranda are in fact being conveyed by tv police behavior is gloriÕed. Constitutional cop shows. But in addition, the conventional rights are painted as bureaucratic technicali- wisdom portrays the information as Ôowing in ties that hinder the police from getting the only one direction: the cop shows inform the bad guy. The bad guy is usually painted as viewers of what “the law is.” Scholars of popu- deserving whatever he gets. Miraculously, the lar culture describe a more complex scenario, police misconduct never seems to harm the in which television has become (with some innocent.9 5 See e.g. Stephen Aarons & Ethan Katsch, How TV Cops Flout the Law, Saturday Review, March 19, 1977; George Gerbner, Tr i a l by Television: Are We at the Point of No Return?, 63 Judicature 416 (April 1980); Judith Grant, Prime Time Crime: Television Portrayals of Law Enforcement, 15 J. Am. Culture 57 (1995). 6 Richard K. Sherwin, Picturing Justice: Images of Law and Lawyers in the Visual Media, 30 U.S.F. L. Rev. 891, 892 (1996). 7 See e.g. J.M. Balkin, What is a Postmodern Constitutionalism?, 90 Mich. L. Rev. 1966, 1981 (1992); L.J. Shrum, EÖects of Television Portrayals of Crime and Violence on Viewers’ Perceptions of Reality: A Psycholog- ical Perspective, 22 Legal Studies Forum 257 (1998). 8 At least one article explicitly suggests that the transformation of popular images of police has in turn inÔuenced the Supreme Court to ratify more and more outrageous police conduct. Aarons & Katsch, supra note 5 at 12. 9 Aarons and Katsch, supra note 5; Gerbner, supra note 5; Shrum, supra note 7 at 259-60. 6 2 Green Bag 2d 5 Autumn 98.book : Bandes.fm Page 7 Tuesday, November 3, 1998 10:14 PM Lawyering Up Our aim is less ambitious than a full can- the detectives will be forced to believe the sor- vass of the television landscape. We want to did and inculpatory version of events told look at the portrayal of Miranda in interroga- them by the other suspect, or by the abundant tions on NYPD Blue. In preparation for this physical evidence, and he will never be allowed task, we have diligently watched every episode to tell his story his way. They are ready to of NYPD Blue ever televised, but for the pur- believe that the suspect acted in self defense, poses of this article, we will draw from just a or was Õlled with remorse, or tried to back out, few episodes which we deem to be representa- but Õrst it’s up to the suspect to help himself tive. The issue of which episodes are represen- out by telling them about it. Unless the sus- tative is not a diÓcult one, since the portrayal pect helps them to help himself, their hands of the Miranda rights is remarkably consistent are tied. And if they don’t help, he is at the from show to show.10 mercy of the prosecutor and the court, who will not have his best interests at heart. Your Last Chance to The detectives’ conduct is motivated by a Let Us Help You view of criminal justice that we think is mis- guided, but portions of which may be widely Let us turn to the question of how Miranda shared among law enforcement professionals rights are portrayed on NYPD Blue. There and the public. This view is that the Constitu- are incidents in which the detectives blatantly tion (at least as interpreted by the Supreme disregard suspects’ constitutional rights, for Court) has become an impediment to justice, example by ignoring an unambiguous request and that unconstitutional and even inhumane for counsel, or even by using physical force. techniques are justiÕed when used to get But the usual scenario is more subtle. It turns vicious criminals oÖ the streets. This view, on the detectives’ eÖorts, almost always suc- which we call NYPD Blue justice, was ex- cessful, to convince the suspect that it is in his plained in an early episode. After deceiving a best interests to confess. Bobby Simone,11 murder suspect into confessing to a robbery Andy Sipowicz or some of their detective col- which implicated him in the murder, Detec- leagues will explain that of course the suspect tive John Kelly took oÖ his watch, gave has the right to refuse to talk to them, or even another detective his gun, pulled down the to demand a lawyer.