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Top 5 Legal Lies From 'HTGAWM' S1 E5 ('We're Not Friends')

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By Mark Wilson, Esq. on October 24, 2014 10:22 AM

What happened last night on "How To Get Away With Murder"? Before we get to our list of the Top 5 legal inaccuracies in Episode 5, "We're Not Friends," here's a super-concise, tweetable recap:

#HTGAWM in 140 Characters: Son kills DV cop dad. Jury selection, then tampering, then nullification. Annalise confronts husband; did he kill Lila? The wallpaper!

As with many courtroom procedurals, this episode gets some of those procedures wrong:

1. Ryan's Blog Can Be Introduced Under 'Rule 106.'

The judge cites "Rule 106" when he allows Ryan's blog posts into evidence. Surprisingly, the Pennsylvania Rules of Evidence do have a Rule 106, and it does deal with the contents of writings. But this rule says only that if one party introduces a recorded statement, the other party can require introduction of any other part. In this case, only one side is asking for it, so Rule 106 doesn't apply. (It's really for introducing portions of depositions.)

2. Evidence of Domestic Violence Can Be Excluded Because the Wife Never Filed Reports.

The judge initially refuses to allow Annalise to introduce evidence of the wife's domestic violence because there's nothing to corroborate it. Wrong answer, judge! When deciding whether evidence should be introduced, whether it's true isn't a concern: It's for the jury to weigh credibility and decide whether they believe the evidence. The judge is concerned only with relevance (does it tend to prove or disprove a fact at issue?) and whether the evidence is legally admissible.

3. 'You Would Have Done the Same Thing' If You Were Ryan.

During closing arguments, Professor Keating tells jurors they would have done the same thing if they were in Ryan's position, facing a violent father. No way! In almost all jurisdictions, attorneys aren't allowed to ask the jury to step into the victim's or defendant's shoes. It's considered too prejudicial.

4. Juries Can 'Nullify' the Law.

No one monitors what goes on in the jury room, so once they're deliberating, juries can disregard the law and vote their "conscience." But they're not supposed to. Whether they have the right to do so is a different story. In New York, a man was charged with jury tampering for passing out flyers about nullification outside a courthouse, but the charges were later dropped.

5. A Mistrial Is a Magic Bullet for the Defense.

Once the entire jury heard about nullification, the judge declared a mistrial. This means only that the trial is over because of a technical error, but it doesn't stop the prosecutor from refiling charges. The prosecutor in this case decided to retry the case in juvenile court instead, because of Ryan's "abuse" defense. Annalise says he's looking at community service and counseling, but that's not certain. The prosecution decides what to charge, but not how to punish the offense (unless there's a plea agreement).

(Extra Credit!) 6. A Complete Defense?

The judge also can't dismiss Ryan's abuse out of hand like he did. The Constitution guarantees the right to present a complete defense, so just because the judge doesn't think there's enough evidence to support the claim of abuse doesn't mean Ryan can't present that as part of his defense.

Check back here next week as we take on more of the legal missteps in "HTGAWM" Episode 6, "Freakin' Whack-a-Mole."

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