Our heroes are close to the break they need in this case, stalking coolly around the luxuriously-appointed flat of the killer. They know, and we know, that he’s the one, but they haven’t been able to crack him just yet, and he’s politely tolerating their presence yet again as they appear under the guise of wanting to ask him a few clarifying questions, but we all know he’s this close to throwing them out and demanding that they contact him through his lawyer if they have further questions in the future. This may well be the last time we get an unfettered look at his flat without a warrant.
So of course, it makes total sense for one of our heroes to excuse herself to use the bathroom.
‘Just through the hall there,’ our killer says, and she melts away into the background while her partner tries to distract the killer long enough for her to root out some evidence, rip hair from his brush for use in a DNA test, collect that critical piece of information that will allow the police to come in with guns blazing, bringing justice and closure just in time for the end of the episode.
Television is the land of nebulously legal police searches. We often see them used, in fact, as the crux of a case, and they’re generally presented in a positive light, as something that viewers should view as completely acceptable. After all, they allow our heroes to solve the crime and end up on top, bringing the bad guy in for punishment. They certainly aren’t something we should question or feel uneasy about, and the evidence uncovered during such searches should absolutely be valid in court because it was discovered in pursuit of justice.
Except that search and seizure isn’t about justice and who’s heroic. It’s about following carefully established legal procedure that protects civil rights under the Constitution, numerous court decisions, and legislation. If that procedure isn’t followed, people have a right to challenge evidence, even (especially) when it plays a critical role in their conviction or leads law enforcement to a killer. Because without these legal protections in place, we would be in a Wild West of evidence, and that is not a place where we want to be, because it could set extremely dangerous precedents in the real world, not just on television.
The thing about evidence is that it can be the keystone of a case. It’s the thing the prosecution needs to present to persuade the jury of the guilt of the defendant. The prosecution bears the burden of proof and it’s that evidence that carries the proof. If the prosecution were permitted to use dodgy evidence, there’d be nothing stopping any prosecutor from using fabricated evidence, confessions gained in dubious circumstances, fraudulent material, and evidence obtained in illegal searches that violated privacy rights or were conducted in conditions when the defendant was illegally misled by law enforcement to consent to the search.
Not all civilians are aware of all their civil rights and it can be difficult to defend those rights in tense situations even for those who do know them. I’m not the only person who’s been in a situation where police have tried to illegally search my car, for example, and where I needed to take a deep breath to try to stay calm enough to clearly lodge my objections to any attempted search and make sure those were noted on the record. As a white person of a fairly privileged occupational and class status, I can be confident that, most of the time, when I assert my rights I will be respected and if it came to a court case, I’d likely win.
The majority of defendants in the United States did not have access to the educational opportunities I did, nor do they occupy the same status with respect to law enforcement. Which means that they are often targeted for illegal search and seizure. Which means that when pop culture reinforces the idea that such searches are justifiable in the name of justice and solving crimes, juries and members of the general public don’t understand the nature of evidentiary challenges and why it’s so important to protect civil rights.
It doesn’t matter what crime someone stands accused of, and even whether the person committed that crime. If the evidence was collected in illegal circumstances, it cannot be presented in court, and law enforcement should know better than to use illegal searches to gather material for a case, because it can and should be thrown out in court. And that can mean the ruin of a case, all because someone was hasty or thought it would be possible to get away with a violation of civil rights because of the defendant’s lesser social status.
The kinds of messages sent by pop culture depictions of law enforcement are often frustrating. Pop culture normalises the widespread use of surveillance, for example, and even positions it as a good thing allowing police to track killers and use ubiquitous cameras to follow victims and assailants over the course of a given time period. Consequently, people tend to be more complacent about the use of cameras and other surveillance tools than they might otherwise be. Likewise, pop culture’s cavalier attitude towards proper evidence collection and handling sets a precedent, planting the idea that it’s acceptable and sometimes even necessary to cut corners in the larger name of solving a case.
Is this really what we want to be presenting to consumers of pop culture? Is it such a good idea to reinforce the notion that it’s acceptable to violate civil rights in the interest of a larger goal? Do the ends justify the means? Attorneys fighting on cases like these would argue no, and they’d be correct. The question is: why is pop culture so invested in propping up iconising notions of law enforcement?