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Top 5 Legal Lies From 'HTGAWM' S1 E10 ('Hello Raskolnikov')

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By Mark Wilson, Esq. on January 30, 2015 4:20 PM

After going on Winter Break for two months, ABC's "How To Get Away With Murder" is back. The gang had to deal with the aftermath of #WhoKilledSam and figure out how to stop the trial of "Goth Girl" Rebecca before it started.

The episode ends with Annalise giving her class (remember them?) a hypothetical about exonerating accomplices to a murder. (Yes, that's a little close to home.) So what did the show get wrong about the law this time? First, here's a tweetable recap:

#HTGAWM in 140 Characters: Can the gang stop Rebecca's trial and lie about Sam's disappearance at the same time? Yes they can, with Annalise pulling the strings.

1. Motive Is an Element of the Offense.

In order to get the charges against Rebecca dismissed, the gang had to prove that Sam, not Rebecca, killed Lila. Annalise says they need to establish "motive," but that's not an element of murder. Every lawyer show claims that motive is a requirement, but it's not a legal requirement. Motive is there to convince the jury that the defendant had a reason for committing the crime.

2. They Couldn't Get Those Abortion Clinic Records.

Sam's motive for allegedly killing Lila? She was carrying his baby and refused to have an abortion. Annalise needs her medical records from the clinic, but the judge refused to allow it because Annalise couldn't "show compelling evidence beyond mere conjecture." But the judge got it wrong: All relevant evidence is admissible unless it's protected by a privilege, is too prejudicial, or is hearsay. It's illogical to require Annalise to use the evidence she doesn't have yet to justify getting that same evidence.

Later on, they claim "physician-patient privilege" was an issue, but once again, everyone is wrong: In Pennsylvania, that privilege doesn't apply in criminal cases. (And even if it did, the judge could still order the information to be turned over, anyway.)

3. The Receptionist Can Testify About the Conversation She Overheard.

Because the gang couldn't get those records, they brought in the clinic receptionist to testify to a conversation she overheard between Sam and Lila in the waiting room. This conversation is completely inadmissible. It's hearsay, which is an out-of-court statement offered for its truth. There are exceptions, but they wouldn't apply here.

The receptionist can, however, testify to what she saw, as long as it doesn't involve anything Sam or Lila said. For example, it's OK for her to say, "I saw them arguing" without mentioning what they were arguing about.

4. The DA Can Withhold the Laptop With the GPS Information.

As is typical with prosecutors on this show, they have to be forced to turn over evidence, like Sam's laptop -- and when they do, they turn it over just before it's introduced in court. But that's not how criminal procedure works: Each side makes the other side aware of the evidence it intends to introduce. There aren't any surprises.

Additionally, prosecutors have an affirmative duty to disclose the existence of exculpatory evidence (evidence that tends to show the defendant didn't commit the crime). If the prosecutor had a laptop showing that someone else, not Rebecca, was with Lila on the night of the murder, the prosecutor has to turn that over to the defense.

5. Frank Will Just Collect Sam's DNA and Worry About Chain of Custody Later.

Courts don't "do their own test" when it comes to DNA, like Frank asserts when he and Laurel go looking for Sam's DNA to prove that he was the father of Lila's baby. In the United States, the court system is adversarial, meaning the parties -- not the court -- engage in fact-finding.

The prosecution would have to call into question the veracity of the DNA evidence by claiming it wasn't obtained in the right way (which is generally how all DNA evidence is discredited).

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