Drama. Glamour. Suspense. That’s how the legal system is portrayed on popular TV shows. Is that what the legal system is really like? Do these shows accurately depict what happens when a legal problem arises? Below we dispel some common misconceptions fuelled by, admittedly, entertaining and exciting TV shows.
First, the drama. Television commonly shows lawyers heading into court where they heatedly argue with each other, with the judge, and with witnesses. These exchanges often end with the judge slamming their gavel repeatedly in order to quiet the parties. This is not typical or acceptable courtroom behaviour. In fact, if a lawyer acted this way in a real courtroom, their client would likely suffer serious consequences and the lawyer could be personally disciplined for poor behaviour. Lawyers are required to act with civility. This means that lawyers may not interrupt the judge, a witness, or opposing counsel during court proceedings. They cannot badger witnesses and cannot yell at anyone. The rules of civility even require lawyers to refer to opposing counsel as “my friend” in the courtroom regardless of whether they are actually friends or long-time rivals. Finally, Canadian judges do not use gavels, so no gavel banging occurs in Canadian courtrooms.
Next, the glamour. Most TV shows depict lawyers wearing very stylish clothing in court. In Canada, lawyers tend to dress much more conservatively than what is shown on TV, and they rarely appear in court in a suit. In the majority of Canadian courts, lawyers are required to wear a standard set of clothing called “robes
” (sometimes jokingly referred to as a “wizard costume”). Robes are a holdover from the British legal system and are designed to level the playing field between the parties so that judges and juries do not assess the plaintiff and the defendant based on appearance. Luckily, Canadian courts have dispensed with the traditional British, white, curly wigs.
Finally, the suspense. The climax of a TV show’s episode often occurs when a key witness takes the stand. Upon being asked an important question that will determine the outcome of the case, the witness refuses to answer and “pleads the fifth”. What does this mean and does it happen in real life?
In the United States, witnesses may invoke the Fifth Amendment to the United States Constitution which allows witnesses to refuse to answer any question that may incriminate them. In Canada, witnesses do not have this option. Witnesses must answer all questions that are asked of them, regardless of whether they incriminate themselves in the process. The Canadian Constitution does provide protection against self-incrimination, but it functions differently than the United States’ Fifth Amendment. The Charter of Rights and Freedoms (part of Canada’s Constitution) prevents testimony that was given at the trial of a third party from being used against the person who gave the testimony, but the testimony can be used to convict a witness who chooses to testify in their own defence. For example, if John Doe is compelled to testify at the trial of his friend, and implicates himself in a robbery in the process, John’s testimony cannot be used to convict John for the robbery. However, if John chooses to testify in his own defence when he is on trial for robbery, and in the process he implicates himself in a murder, John’s testimony could be used to convict him of the murder. This is one of the reasons why, unlike on TV shows, defendants in Canadian criminal cases rarely testify at their own trials.