HBO’s “The Undoing” – A Legal Analysis

December 22, 2020

By Sara Kropf

We just finished watching HBO’s The Undoing. Pandemic or not, it’s great television. I’ll try not include any plot spoilers in this post, but if you really don’t want to know anything about the show, then you probably want to stop reading now.

The show follows a wealthy and attractive Upper East Side couple, Dr. Grace Fraser (played by Nicole Kidman) and Dr. Jonathan Fraser (played by Hugh Grant). I loved Hugh Grant in Bridget Jones’ Diary and Notting Hill. It’s fun to see him cast as a potential villain here. Nicole Kidman has always annoyed me and that hasn’t changed.

Anyway, in the show, Jonathan is accused of bludgeoning his lover to death. The young woman also happens to be the mother of a kid who goes to school with the Frasers’ 12-year old son Henry. It is a fancy school. There is a crest and everything.

There’s nothing more fun* than two lawyers sitting at home dissecting a fictional television trial. The defense lawyer, Haley Fitzgerald (played by the amazing Noma Dumezweni), is a tough-as-nails character and a joy to watch in court. When she explained to Grace that her job as a criminal defense lawyer is to create “muck” in the government’s case, I was all in. It was just so true.

As I watched the show, though, I couldn’t resist making a list of some of the legal errors in its portrayal of the criminal justice system. There is a BIG reveal in the last episode that addresses a serious legal ethics issue; I’ll leave that one alone for now since it’s impossible to describe without giving away a major plot point.

Although The Undoing is better than most shows as far as getting the law right, here are a few of the errors that I noticed:

  1. Generally, you do not get juror names ahead of trial. Fitzgerald appears to have the names of the selected jurors long before trial and with sufficient time to do significant jury research (and targeted Instagram ads—see below). Admittedly, I don’t practice in New York state court, but in federal court and in DC state courts, you don’t get juror names very far ahead of time. In DC, you get them the day the trial begins, perhaps an hour before jury selection starts. In very high-profile federal cases, the judge may agree to a jury questionnaire, which could allow counsel to research jurors as depicted in the show. Certainly, the Fraser trial appeared sufficiently high-profile to allow for a questionnaire—though that goes unmentioned.
  2. Targeting jurors with Instagram ads is ethically questionable. During the discussion of jurors, Fitzgerald gleefully claims to know which jurors who have been cheated on by their spouses by “piggyback[ing] on the algorithms of Amazon and Google.” She tells Jonathan that she is spamming their social media feeds with pro-defense ads. To her credit, Fitzgerald admits that this conduct is in the ethical gray zone, though she doesn’t describe the ads themselves. There’s nothing wrong in most jurisdictions with researching jurors—in fact, some people argue (myself included) that it is ethically required of a trial lawyer to do everything possible to find out who could be on the jury. However, it is not an ethical “gray zone” when it comes to contacting potential jurors (or real jurors). That is a 100% no-no. Though I’m not aware of any ethics opinion addressing this point, targeting jurors with ads would almost certainly be viewed as contacting them.
  3. Witnesses are not allowed in the courtroom. This is a procedural rule that so many shows get wrong. Witnesses in a trial are not allowed to sit through the trial until after they have finished testifying. You do not want one witness’ testimony to be influenced by what he or she heard from someone else. Judges and lawyers routinely invoke the “rule on witnesses” to exclude trial witnesses from the courtroom. When Grace sits through the trial and then pops up to testify? That wouldn’t happen. When the lead detective claims to be offended by the defense lawyer’s opening statement? Impossible. They would be sitting in the hallway the whole time.
  4. Fitzgerald works alone. This is a huge, high-profile trial. While I appreciate Fitzgerald’s maverick nature, it’s not believable that she would try the case alone. She would have someone else with her, to help with exhibits and witness logistics. This kind of case with this kind of budget would have a small army of people helping. Even at a small firm, we don’t go to trial solo.
  5. Cameras in the courtroom. I know some jurisdictions have them. But New York does not, except in extraordinary circumstances.
  6. Jonathan goes home right after court. It appears that after court ends for the day, Jonathan heads home to relax. That’s unusual. Most clients are deeply involved in trial prep and strategy. Plus, the lawyers must prepare the client to testify, unless you know from the start that he won’t testify. It’s more common to have a strategy meeting after court to review what went well and what didn’t and to plan for the next day. The client nearly always participates in that meeting. And, in my experience, even once I’ve gone back to the office to prepare for the next day, I’m emailing and calling my client (or vice versa).
  7. Jonathan visits another witness before trial. There is a scene where Jonathan visits another witness in the case. There’s an expected confrontation. This visit shouldn’t happen for the reasons that Fitzgerald later explains: one the conditions of pretrial release is generally that the defendant cannot contact any witness in the case. The courts want to avoid witness tampering. This rule is generally interpreted strictly—one violation and the client goes back to jail.
  8. Miranda rights are not for “suspects.” There is a scene where Grace, having gone to the police station to answer questions voluntarily, complains about her treatment by them:

I am sitting her in a room with two detectives who are treating me very much like I’m a suspect, trying to elicit incriminating responses from me in a grossly custodial setting. So you either read me my Miranda rights right now or tell me I am free to go.

Then Fitzgerald later cross examines the lead detective about why he didn’t give Miranda warnings to another “suspect.”

You don’t get Miranda warnings when you agree to accompany the police to the station for questioning (usually), and you don’t get them just because the police consider you a suspect. Grace was right that if she was “in custody,” then she should get the warnings. But custody generally means that you are not free to leave, and Grace appears perfectly able to leave the interrogation room.

9.No notes? We all dream of doing a brilliant cross examination without notes, just standing up and eviscerating a hostile witness. In real life, though, going to trial means having lots of notes. There are key questions to ask and critical points to make. You don’t want to forget a topic because you thought it looked cooler to stand up without notes. Great trial lawyers do not read from their notes or simply ask their pre-formed questions one after another. You have to listen to the witness’ answers and react with new questions. All of that is done on the fly. That said, it’s impossible to believe that both the prosecutor and the defense lawyer worked entirely without notes when they cross examined the key witnesses in this trial. Don’t get me wrong, they make trial look seamless and exciting. In real life, there’s just a lot more shuffling of paper.

All in all, The Undoing is worth watching. We didn’t love the ending, but that shouldn’t take away from an entertaining–and somewhat accurate–television trial.

* Pandemic definition of “fun” applicable here.

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