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Saturday, February 6, 2010

The Good Wife Does Objections Right, Circumstantial Evidence Wrong

It doesn’t take much to give me a thrill when I’m watching a legal drama. Even the tiniest bit of law done right can make me happy. Yes, I’m probably easily amused. But when a screenwriter gets it right, I jump for joy because it’s so darned rare.


When I was watching The Good Wife last week, the lawyer was examining a witness using leading questions. In general, leading questions are ones with yes or no answers. Opposing counsel objected to the leading questions. The lawyer conducting the examination responded that the witness was hostile and he was allowed to lead.

When the judge overruled the objection, I was happy beyond words. That tiny bit of correct procedure added to my viewing pleasure. Here’s what was going on that they got right.

A hostile witness is a witness who favors the other side. It’s usually an employee, relative, someone the other side has control over. While leading a witness on direct examination is usually a big no-no, this is an exception to the general rule against leading on direct. I usually like to call them an adverse witness when I’m using this exemption, mainly because sometimes the judge will say, “Well, I haven’t seen them being hostile. I’ll allow it only if they act hostile.” Doi. That’s a misuse of the exemption. Hostile simply means, in this situation, adverse. But still, I like to keep it simple. So when I tell the judge I’m leading because the witness is adverse, they’ll almost always allow me to lead.

Watching a TV lawyer leading a witness on direct drives me batty. Here, they showed some action, a bit of drama, and told all the folks who know about the justice system that we’re in good hands.


They did one little thing that bugged me though. I couldn’t get too exercised about it because everyone makes this mistake. I’d like to see it eradicated in my lifetime, so I’ll keep picking at it. That’s the misuse of the term “circumstantial.” I always hear characters say, “But that’s just circumstantial,” or “I need hard evidence, not circumstantial evidence.”

Circumstantial evidence is where the fact is not directly observed but where inferences are drawn by the surrounding circumstances. Your character hears a shot fired, sees a woman standing over her husband with the smoking gun. The forensics show that she has gunpowder residue on her hands. That’s all circumstantial evidence.

Eyewitness testimony is not circumstantial when the eyewitness observed the fact. If the maid saw the wife pull the trigger, that’s eyewitness testimony. It’s not circumstantial. What it is, though, is incredibly unreliable. Eyewitness testimony is the least reliable evidence. Witnesses are crap at recalling details. Witnesses of one race can’t reliably identify faces of people of other races. Eyewitness testimony is why so many people are wrongly convicted.

All that great scientific evidence that TV dramas and juries love is circumstantial evidence. It’s reliable as heck. Give me circumstantial evidence any day over eyewitness testimony.

So please stop dissing circumstantial evidence in your writing. Use it right.

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