Violations of constitutional rights on Five-O (1997 posting)

by Mr. Mike Sun Mar 12, 2017 8:03 pm

The following was posted by Beth Fox in the Usenet newsgroup on October 26, 1977 [!!]. I haven't been able to find the message which provoked this discussion. It may have been sent to Beth Fox in e-mail. There are a LOT of very interesting exchanges in this newsgroup, which existed in the mid-1990s.


I am responding to Jim [Capeloto's] request for my analysis of the violations of constitutional rights which are routinely practiced by Hawaii Five-O. I apologize for the length of the message, but the issues are complex. (I do hope everyone will join the fray, especially non-Americans. How are these issues handled in Australia? Canada? Germany?

The request came in a message from [Capeloto], on October 21, 1997:

Let me open up the legal nitpicking to our good friend and colleague Beth/Cinnamon, with regard to the two revolutionaries invoking their Miranda rights in the interrogation room. Yet McGarrett and the D.A. continue to question them, threaten them with jail time, etc. Don't you think all statements after the suspects invoked Miranda would be suppressed?

Incidentally, having just seen Along Came Joey on Sunday night, we see an even more egregious example of McGarrett's practice of continually trying to break down suspects after they have either requested a lawyer or invoked their right to remain silent. In that episode, McGarrett and Danno use the old "good cop, bad cop" routine combined with playing the two suspects against each other. This is just the sort of thing criminal lawyers will advise their clients about.

I do recall one earlier episode in which a (slimy) criminal defense attorney comes charging into McGarrett's office and tells McGarrett "No questions" when his client is being questioned. But that's pretty rare in the show, isn't it?

My response is as follows:

In the first few seasons of Hawaii Five-O, the team routinely committed violations of Miranda (advising suspects in custody of their constitutional rights before questioning them), Massiah (right to counsel), and search and seizure law. Let's take these one by one; then I'll give my thoughts as to WHY the writers were so sloppy.

Miranda. Sometimes it seems as if McGarrett had never heard of the case, although the Supreme Court had decided it in 1966 -- two years before "Hawaii Five-O" hit the airwaves. I can't count the number of times he'd question in-custody suspects (those who are "not free to leave") without first reading them their rights.

Sometimes (this started in the middle of the first season) we hear McGarrett remind suspects -- after questioning them -- that "they've been apprised of their constitutional rights" and McGarrett wants the suspects to acknowledge that. Examples of this tactic are found in "And They Painted Daisies . . ." (when McGarrett questions Ann in the hospital as she's going through withdrawal) and "Pray Love Remember" (when McGarrett makes the boyfriend sign a waiver after the questioning is over.) What an insane tactic! Suppose the suspects deny that they've been read their rights, then what?

Of course, as you know, Miranda does not apply where the suspects are not in custody in any sense; thus, it was perfectly appropriate for McGarrett to question Bobby Rand's girlfriend over a drink in "No Blue Skies," and Professor David Stone in "Up Tight" (now, there's a guy who knew his rights.)

With respect to the revolutionaries in "The Young Assassins," I, like you, was aghast at the questioning. By Season Seven, McGarrett has learned to read suspects their rights, but seems to ignore the suspects when they invoke. You are right that once the PAG members invoked their Miranda rights, McGarrett should have ceased questioning them. Anything they say after invoking will be suppressed, as well as any evidence that is found as a result of the tainted confession (the "fruit of the poisonous tree".)

Worse, from my point of view, was the questioning itself. Why didn't McGarrett question each PAG member separately? It is clear to me that one of them would have cracked -- and fast. Finally, why bring Manicote to this disaster? Obviously, Manicote isn't keeping his investigating officer on the right legal track (the ostensible purpose for having a DA involved in the investigation.) Moreover, if it is later found that Manicote messed up, the Governor will probably hit the ceiling, remove Manicote from the case and appoint the attorney general.

Right to counsel. When suspects are represented by counsel, they may not be questioned outside the presence of their attorney. The Five-O team dislikes lawyers (who doesn't?) so they "will the impossible" -- i.e., make the lawyers disappear by ignoring them -- even when the suspects ARE ALREADY REPRESENTED BY COUNSEL.

On this issue, Danno was the worst offender. In "Force of Waves," Danno has Mrs. Sloan brought in for questioning. Mrs. Sloan states that she wants to wait for her lawyer (a man Danno KNOWS is representing her, because he met the guy already.) Nevertheless, Danno plunges in. Mrs. Sloan again states that she wants to wait for her attorney. Danno keeps going. When the lawyer finally arrives, he has every right to be ticked off at the worst violation of the right to counsel since Gideon v. Wainwright.

But Steve McGarrett has problems, too. Jo-Louise Mailer was represented by counsel in "The Joker's Wild, Man, Wild"; she also asked to speak with her attorney; yet McGarrett continued to question her. (I do note that in that case, there was an emergency--someone was about to be killed--so, "Damn the torpedoes, full speed ahead.")

Search and seizure violations are routine on Five-O, although they are less common as the series goes on. The warrantless and impermissible searches (i.e., Danno's search of the locker in "A Bullet for McGarrett") seem to give way as time goes on to searches that may be warrantless, but are permitted exceptions (i.e., where there are arguably "exigent circumstances" -- like Eddie Joseph's room in "I'll Kill 'Em Again"; or when in "hot pursuit" (many instances.))

So why did this happen? I think that part of the reason is that, for about a decade, starting in the early sixties, the Supreme Court kept changing the law quickly and dramatically. No sooner had police officers assimilated Mapp v. Ohio (search and seizure--1961) than they were hit with Massiah (right to counsel--1964) Escobedo (1964) and Miranda (1966.) TV writers who had cut their teeth on "Perry Mason" or "The Detectives" probably could not assimilate all of the changes. Or maybe it was just wishful thinking: "let's show crime-fighting the way it ought to be, without these pesky legal stumbling blocks."

The Five-O writers were not alone in this; most shows of the era have similar problems. There is one exception: Jack Webb. He did it right -- all the time. His sets were EXACT replicas of LAPD stations, his actors dressed exactly like LAPD officers (with real LAPD badges), the cases were based on LAPD files; and the new victim's rights laws they featured on Adam-12 in fact had just been enacted in California. More to the point, the procedure they all followed was exactly "by the book"; the second after Kent McCord slaps handcuffs on a suspect (behind the back, of course) you hear "You have the right to remain silent . . . " And damn, in the one episode of Adam-12 where they showed a preliminary hearing, the objections were the exact same ones I always heard as a prosecutor.

Of course, you pay a price for this: "Dragnet" and "Adam-12" had more than a little LAPD input, and Webb had to slant the shows in a certain direction.

For example, although no Dragnet episode featured the Watts riot that had devasted Los Angeles in 1965, a 1968 episode of Dragnet bragged about how the LAPD had PREVENTED a riot after the murder of Dr. Martin Luther King, Jr.

Overall, Five-O writers told engaging and interesting stories. I am willing to ignore a few violations of constitutional rights (in fiction only!) in order to move the story along. Frankly, let them break down the occasional door -- it's more fun that way. But the constant violations of constitutional rights (in practically every episode) are just inexcusable, PARTICULARLY WHEN THEY CAN EASILY BE FIXED. For example, Danno can just say he had a warrant for the locker; Mrs. Sloan's goofball attorney can sit in on the questioning "like a potted plant"; McGarrett can stop questioning the PAG after they invoked Miranda (as I recall, they didn't say anything anyway.)

If you've read this far, thank you for your attention and patience. I still love Five-O, with or without its legal nits.