Suits: The Legal Studies GuideBy Elyse Popplewell in HSC
27th of December 2017
Suits is one of the most talked about Netflix shows, and there’s a chance it’s the reason you considered picking Legal Studies in the first place. I’m sure you’ve been told before that HSC Legal Studies isn’t exactly like law at university – and Netflix’s Suits isn’t quite like the Australian legal system. I’m going to support your claim that Netflix is study, so here’s a guide to the Suits-to-Australian-legal-system conversion.
Note: This contains spoilers!
The DA’s office comes up fairly regularly throughout the current six seasons. Harvey Spector worked for the DA’s office for five years before working for Jessica Pearson. In the US, the DA is the District Attorney. They are more or less the American equivalent of our Director of Public Prosecutions (DPP). The DPP has several roles, but the main roles include instituting and reviewing appeals, assisting in coronial inquests and to institute and conduct prosecutions. You need to know about the DPP for the Criminal Investigation Process section of the syllabus. You need to be able to recognise what the DPP does and the role it plays in the process of investigation and trial.
This leads us into malicious prosecution. A few times in the show, Harvey Spector threatens to counter-sue someone for malicious prosecution as he insists people come after him for personal reasons rather than based on merit. In Australia, malicious prosecution is exactly that: a prosecution based on a vendetta with the intention to cause harm, rather than on fair grounds. If you’re looking for a case for this in NSW: Gordon Wood was convicted of murdering his girlfriend by throwing her off the notorious suicide spot – The Gap. In an appeal, it was found that there was not sufficient evidence to prove beyond reasonable doubt that Wood did actually kill his girlfriend. Mr Wood is suing the state for malicious prosecution, claiming that the victim’s ex-boyfriend was a jealous police officer who fuelled the case. Read more about it here.
Part of the reason the authorities are out to get Harvey Spector so often, if not because of personal vendettas, is because of his renowned preference for cutting deals based on behind-the-scenes agreements. In the HSC legal syllabus, we won’t refer to “deal-cutting” but there’s a lot of similarities to charge negotiation or plea bargaining. This essentially involves a private negotiation between the prosecution and defence lawyer about the charges, case facts, or prosecution’s sentencing submission. The primary focus is to arrive to a deal that is mutually acceptable for both parties. Often, this process is seen as justified because it is so efficient in terms of cost and judicial resources, as well as sparing victims and accused persons from long proceedings.
Across most Australian jurisdictions, plea bargaining isn’t controlled by legislation, so it can seem to those on the outside that what happens during negotiations isn’t transparent. In an example from Suits, at the end of season five, Mike Ross cuts a deal with Federal Prosecutor Anita Gibbs – he pleads guilty to being a fraud on the condition that she doesn’t investigate any of the name partners at Pearson Spector Litt. In a NSW case, Nanette May was brutally assaulted within an inch of her life by Karl Koch who was charged with attempted murder. Koch reached a deal with the DPP to plead guilty to malicious injury with intent in 2009. There was significant evidence that Koch stalked May with obsession across two continents and planned to murder her, yet his charge of attempted murder was cut to a guilty plea of malicious injury with intent. Here lies the controversy around plea bargaining in our legal system. Although plea bargaining is legal in NSW and is enabled through the key legal theme of discretion, it is far from a transparent process in most cases – and you need to know this for the Criminal Trial Process section of the syllabus.
In the situation that the case does go to trial instead of having a deal cut beforehand, we hear a lot about “Fifth Amendment Rights” in Suits. When Donna takes the stand in season five as a witness to the fraud case of Mike Ross, she chooses to exercise her Fifth Amendment Right when asked if she knew that Mike Ross never went to Harvard. The Fifth Amendment Right is the right to be free from self-incrimination – meaning you have the right to remain silent without penalty (in most cases). In Australia, the right to silence to avoid self-incrimination is a long-standing common law right. But, it’s not exactly a “right” in NSW any more, and there’s some law reform you should know about.
In Suits, it’s made clear that although the jury should not infer any admission of guilt from exercising the right to silence, the Attorneys admit off the record that jurors may do this subconsciously and this should be considered in their court-approach. New law reform in NSW means that jurors can actually make inferences of guilt based on exercising the right to silence in some circumstances. The basis of the original understanding that you have a right to silence and a presumption of innocence is a reflection of the state’s responsibility to prove guilt, rather than your duty to prove innocence. The legal burden of proof (onus) is on the prosecution, both in Suits and in Australia. The claim is that accused persons are abusing this right and consequently lengthening proceedings and hampering investigations.
In essence, the main objective of the Evidence Amendment (Evidence of Silence) Act 2013 allows an unfavourable inference to be drawn against accused persons who opt for silence in official questioning, yet they rely on a fact in their defence that they refused to reveal earlier. Previously, Section 89 of the Act shielded accused persons of having unfavourable inferences drawn from their silence. This has now been amended.
But in Suits, often they find themselves stuck between a rock and a hard place: exercising their right to silence or perjuring themselves. To perjure is to wilfully tell an untruth under oath. In NSW, perjury carries a maximum sentence of 10 years in prison, although someone who perjures may be given a punishment as small as a fine.
I’m sure there’s very few of you with Mike Ross’s photographic memory – so check out some of our other Legal Studies resources to get ahead: