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1-1-2007

The Impact of Popular Culture on American

Perceptions of the Courts
David Ray Papke
Marquette University Law School, [email protected]

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David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts, 82 Ind. L.J.
1225 (2007)
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The Impact of Popular Culture on American

Perceptions of the Courts
DAVID RAY PAPKE*
INTRODUCTION

Lengthy service as a judge or in law enforcement sometimes makes a person a bit

paranoid. After sixteen years on the bench, The Honorable Patricia D. Marks, the
Supervising Judge for the Criminal Courts in New York's Seventh Judicial District,
worried that pop cultural works might be affecting the jurors in her courtroom.'
Hollywood films, she thought, could make potential jurors leery of serving. Television
shows could influence the jurors' understanding of their role.2 Was Judge Marks being
unduly concerned? She perhaps asked herself that very question. But then, after
working to guarantee herjurors were not biased by popular culture, she saw an Internet
posting from a man who had been summoned for jury duty and actually was doing his
"homework" by watching Jury Duty (1995), TrialBy Jury (1994), and 12 Angry Men
(1957).'
For jurors in other courtrooms and for average citizens as well, it seems likely that
popular culture affects what they think of the courtroom and courtroom proceedings. In
the first section of this essay, I proffer a definition of popular culture and raise the
question of how we might study its impact. In the second section, I present a short
overview of the way portrayals of the courts have been central in American popular
culture during the last century and point out how comfortable Americans are with the
courtroom as cultural convention. In section three, I explore the impact ofcourt-related
popular culture on what Americans think of and expect from their courts. In the
conclusion, I suggest a few steps that could be taken to limit popular culture's impact.
I. WHAT IS POPULAR CULTURE?
Ray B. and Pat Browne have argued that when it comes to studying "popular
culture," an academic undertaking they helped to initiate, "[a] clear and precise
definition is necessary. ' 4 Academic fields such as anthropology, communications,
history, literature, psychology, religion, and sociology have all turned their attention to
"popular culture," but each field has developed its own understanding of the core
concept. 5 In addition, everyday citizens often attach a wide range of meanings to

* Professor of Law, Marquette University School of Law; A.B. Harvard College; J.D.
Yale Law School; Ph.D. in American Studies, University of Michigan.
1.See Patricia D. Marks, Do CourtroomScenes Have Real-Life Parallels,73 N.Y. ST.
B.A.J. 40 (2001).
2. Id.at 40-42.
3. Id. at 42.
4. Introductionto THE GUIDE TO UNITED STATES POPULAR CULTURE 1 (Ray B. Browne &

Pat Browne eds., 2001).

5. Id.For considerations of the various ways "popular culture" might be understood, see
generally JAMES CURRAN & MICHAEL GUREVITCH, MASS MEDIA AND SOCIETY (3d ed. 2000);
KEviN LAUSE ET AL., POPULAR CULTURE: AN INTRODUCTORY TEXT (Jack Nachbar & Kevin Lause

eds., 1992); and JOHN STOREY, AN INTRODUCTORY GUIDE TO CULTURAL THEORY AND POPULAR

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[Vol. 82:1225

"popular culture," and without some agreement about what the core subject is,
"misunderstandings and frustrations might result.",6
For purposes of this essay, I define popular culture as cultural commodities and
experiences produced by the culture industry and marketed to mass audiences. The
definition designates something much more specific than just "the popular." If you
enjoy the activities ofjogging in the park in the morning or making a special salad for
the family at dinner, these are good and healthy undertakings. Certain of the garb you
might wear while jogging and books on salad-making might fit within my definition of
popular culture, but the jogging and salad-making in and of themselves are not
commodities and experiences produced by the culture industry for mass audiences. As
"popular" as these activities might be, they do not qualify as "popular culture."
The three elements of my definition are products, industry, and audience. Products
that we might characterize as "popular cultural" were available to consumers in Europe
and in the American colonies as early as the 1600s, but Jim Cullen, the leading
historian of American popular culture, points to the final decades of the nineteenth
century as the period during which "culture became an industry in the modem sense of
the word."7 The most diversified and highly marketed pop cultural production of the
early culture industry was literary, but in the course of the twentieth century, films,
radio programs, recorded music, and television shows also flooded into the
marketplace. In the present, products in different media remain distinguishable from
one another, but it is the rare product that strikes a major chord in8 one medium without
then being reproduced in second, third, and even fourth media.
Pop cultural products do not just bubble up from the populace, but rather come from
a large, sophisticated, and, of course, profit-driven industry. This industry employs
literally thousands of writers, actors, technicians, marketers, and production workers. A
handful of its "stars" are bigger than life, but almost all culture-industry workers, like
most American workers, earn their livings in hierarchical and bureaucratic work
arrangements. The industry's marketing personnel sell the pop cultural products in not
only domestic markets but international ones as well. In fact, works of popular culture
are among the United States' most important international commodities. Pop cultural
products are the second largest net export of the United States after defense-industry
products. 9 One reads frequently of industry concerns about stealing of American
popular culture with an eye to selling it abroad, and in fact "there is a lucrative trade in
pirate tapes of American movies and music from Kathmandu to Hong Kong."'10 Noting
CULTURE (1993).
6. BROWNE & BROWNE, supra note 4, at 1.
7. JIM CULLEN, THE ART OF DEMOCRACY: A CONCISE HISTORY OF POPULAR CULTURE IN THE
UNITED STATES 90 (1996).

8. The famous Scopes trial from 1925 provided an engaging narrative that led to pop
cultural products in a string of media. The original trial was the first to ever be broadcast
nationally on radio. Later, in fictionalized form, the trial became Inherit the Wind, a highly
successful Broadway play by Jerome Lawrence and Robert E. Lee. The play inturn was adapted
in 1960 for the equally successful United Artists film of the same name starring Spencer Tracy,
Fredric Marsh, and Gene Kelly.
9. Harry Hillman Chartrand, InternationalCulturalAffairs: A FourteenCountry Survey,
22 J.ARTS MGMT. LAW & Soc'Y 134 (1992) (citing Meet the New Media Monsters, THE
ECONOMIST, Mar. 11, 1989, at 65).
10. Jack Miles & Douglas McLennan, In-Country: The Battle for National Cultures:
Global Crossing, Part II, ARTS J., Aug. 18, 2006, http://www.artsjournal.con/artswatch/

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POPULAR CULTURE AND PERCEPTIONS OF THE COURTS

1227

what seems to be an ambivalence about the pirating of pop cultural works in China,
some have argued that the Chinese have, in reality, decided to steal from the American
culture industry instead of subsidizing the production of domestic pop cultural
commodities."
Do the commodities and experiences produced by the culture industry have an
impact on their audiences? Commentators have long assumed that the answer to that
question is yes. At the end of the nineteenth century, moralistic reformers including but
not limited to Anthony Comstock worried that popular adventure stories and romance
novels were corrupting readers, especially young ones.' 2 Comstock himself even
attempted to suppress performances of George Bernard Shaw's Mrs. Warren's
Profession on the theory that the play would make Americans sympathetic to
prostitutes.
Since World War II, few have taken pop literature or drama to be the nation's chief
corrupting influence, but criticisms of television's impact started almost as soon as
primetime network broadcasting in the late 1940s. The Southern Baptist Convention,
for example, launched protests in the 1970s about the CBS sitcom Maude. The group3
claimed the show's episodes touching on abortion would lead viewers to have them.'
Catholic groups felt the series Soap would give viewers the wrong impression of
priests, and in response to the criticism scriptwriters dropped an episode in which a
Jesuit priest was to be seduced by the daughter of one of the series's lead characters.14
The problem with criticizing popular culture's impact, meanwhile, is that it is
extremely difficult to gauge the impact of a particular pop cultural work or even a
given type of work. Can we isolate the cause of the supposed impact? On whom does
the impact fall? Do we have in mind the population as a whole, or are we willing to
segregate parts of the public by age, gender, race, region, or whatever? How often must
somebody listen to a type of music or watch a particular variety of television show?
And, most fundamentally, what constitutes "impact," and how do we measure it? We
live in a complex, sometimes contradicted, postmodem society that is interconnected
with other societies all around the globe. Cultural forces are changing, swirling, and
colliding. The socio-cultural context is almost the antithesis of a controlled laboratory
environment in which cause and effect could be studied with some confidence.
One way around this immense problem-and an approach that has won favor with
scholars of popular culture-is the consideration of a so-called "cultivation effect."
Cultivation theorists argue that regular viewers of television programming or avid5
consumers of other varieties of popular culture come to see social reality differently.'
The argument is not so much that popular culture creates views of social reality but
rather that popular culture prompts, encourages, and refines views of social reality. It is
aGlobalculture%20-II.htm.
11. Id.
12. See generally PAUL

S. BOYER, PURITY IN PRINT: THE VICE-SOCIETY MOVEMENT AND

BOOK CENSORSHIP IN AMERICA

13. See

JAMES

L.

(1968).

BAUGHMANN,

THE REPUBLIC OF MASS

FILMMAKING, AND BROADCASTING IN AMERICA SINCE

CULTURE:

JOURNALISM,

1941, at 150 (3d ed. 2006).

14. Id.

15. See George Gerbner, Larry Gross, Michael Morgan, Nancy Signorielli, & James
Shanahan, Growing Up With Television: The Cultivation Processes, in
ADVANCES INTHEORY AND RESEARCH

MEDIA EFFECTS:

43,46-47 (Jennings Bryant & Dolf Zillman eds., 2d ed.

2002) and JAMES SHANAHAN & MICHAEL MORGAN,

THEORY AND RESEARCH (1999).

TELEVISION AND ITS VIEWERS: CULTIVATION

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[Vol. 82:1225

most likely to do so when selected types of pop cultural works are viewed with some
regularity by certain kinds of consumers. Genres, the standardized frameworks in
which the great majority of pop cultural works come to rest, are important in this kind
of research because they provide the repeating patterns that might arguably cultivate an
effect. A cultivation effect, after all, would be virtually impossible to demonstrate with
a unique, individualized work. As engaging as the work might be, it would not have the
repetitive power anticipated for the cultivation of attitudes and impressions. But genre,
and regular exposure to it, does have the potential to affect how generic devotees see
their world. A fondness for and loyalty to a genre or other repetitive pop cultural
patterns, the argument goes, have ramifications for readers' and viewers' perceptions.
The most extensive cultivation effect research involves the impact of television6
viewing on viewers' perceptions of crime and violence in the society around them.'
Researchers have shown that, regardless of falling crime rates in a given area, frequent
television viewers continue to believe that crime is rampant.17 More generally,
leads to an exaggerated sense of how
evidence exists that heavy television-viewing
8
much violence there is in society.'
This cultivation-effect research regarding crime and violence reinforces the belief
that contemporary popular culture is a cultural phenomenon of significant impact.
While an individual consumer's reading of a trashy novel or viewing of a DVD from
Blockbuster can be minimized as just harmless escape, the overall presence and power
of popular culture should not be minimized. We need not man the barricades like the
prudish Anthony Comstock or try to censor primetime television shows about abortion
or lusty Jesuits, but we should be aware of the potential of popular culture to influence
perceptions of and opinions about social life.
II. COURT-RELATED

POPULAR CULTURE

Since at least the 1830s, observers have noted the unusual importance of courts and
courtroom proceedings in the United States. Alexis de Tocqueville, a minor French
aristocrat asked by his country to report on developments in the United States, thought
American courts were "the most obvious organs through which the legal body
influences democracy."' 19 A judge, de Tocqueville thought, had "high social standing
among his equals., 20 Jury duty in his opinion "instill[ed] some of the habits of the
judicial mind into every citizen, and just those habits are the very best way ofpreparing
people to be free.",21 While the social and political weightiness of American courts may
have surprised de Tocqueville and his French readers, the Americans he met during his
tour of the Republic were most likely nonplussed about the phenomenon.
Given the importance of courts in American life, it is hardly surprising that the
modem culture industry which emerged toward the end of the nineteenth century

16. For a review of several dozen studies in this area, see Sarah Eschholz, The Media and
the Fear ofCrime: A Survey of the Research, 9 U. FLA. J.L. & PUB. POL'Y 37 (1997).
17. See id. at 37-39.
supra note 15, at 52.
18. Gerbner et al.,
19. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 269 (J.P. Mayer ed., George
Lawrence trans., Anchor Books 1969) (1835).
20. Id.
21. Id.at274.

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POPULAR CULTURE AND PERCEPTIONSOF THE COURTS

1229

routinely included trials and other courtroom proceedings in certain of its products.
Popular culture might transport its readers, listeners, and viewers to distant times and
faraway lands. Lots of popular culture is simply fantasy. But modem popular culture is
also sometimes "realistic" in a stylized way and draws on the institutions and settings
of the society that spawns it. Americans were relatively familiar with their courts and
courtroom procedures and took them to be important, and producers ofpopular culture
almost unthinkingly included them in their products.
Two early examples of court-related popular culture, one literary and the other
cinematic, illustrate the point. In the realm of cheap literature, Randolph Mason was
America's most recognizable pop cultural lawyer at the turn of the twentieth century.
The creation of West Virginia writer Melville Davisson Post, Mason appeared in
dozens of stories in popular magazines and hardcover collections. Frequently, Mason
won victories for his clients in tense, surprising courtroom proceedings.2 2 One of the
first law-related films produced in America was D.W. Griffiths' Falsely Accused!
(1908). The film concludes with a dramatic courtroom proceeding in which a devoted
boyfriend actually screens a primitive film in court in order to exonerate the love of his
life from murder charges.2 3 In literature and film, Americans took easily and
comfortably to the fictionalized, dramatic courtroom scenes.
This comfort with the courtroom in popular culture continued throughout the
twentieth century; indeed, some of the most recognizable works of American popular
culture from the middle decades of the twentieth century revolved around dramatic
courtroom proceedings. Such classic films from the 1950s as 12 Angry Men (1957),
Witness for the Prosecution (1957), I Want To Live (1958), Anatomy of a Murder
(1959), The Young Philadelphians(1959), and Compulsion (1959) concern and/or
portray courtroom proceedings, and To Kill A Mockingbird (1962), one of the bestloved films in all of cinema history, of course features Atticus Finch's stirring, albeit
unsuccessful, defense of Tom Robinson at trial.2 4 America's best-known pop cultural
lawyer of the 1950s and 1960s was Perry Mason. Portrayed by the actor Raymond
Burr, Perry Mason appeared weekly in a primetime series on CBS from 1957-66. In
the typical hour-long episode Mason exonerated his client and identified the
perpetrator with the denouement occurring in a dramatic courtroom proceeding.
Customarily left behind by Mason's quick thinking and numerous strategic moves,
viewers could at least take comfort in the obligatory postscript in which Mason
explained to his loyal secretary
Della Street, played by Barbara Hale, how in the world
25
he figured everything out.

22. For a consideration of Melville Davisson Post's Randolph Mason stories and other
works, see Francis M. Nevins, FromDarwinianto Biblical Lawyering: The Stories of Melville
DavissonPost, 18 LEGAL STUD. F. 177, 182-85 (1994).
23. For a discussion of Falsely Accused!, see Carol J. Clover, God Bless Juries!, in
REFIGURING AMERICAN FiLM GENRES: HISTORY AND THEORY 255,257-58 (Nick Browne ed.,
1998).

24. I critiqued the important law films of the 1950s and also To KillA Mockingbirdin Law,
Cinema, and Ideology: Hollywood Legal Films of the 1950s, 48 UCLA L. REv. 1473 (2001).
25. Book-length studies of Erle Stanley Gardner and the Mason stories include J. DENNIS
BOUNDS, PERRY MASON: THE AUTHORSHIP AND REPRODUCTION OF A POPULAR HERO (1996);
FRANCIS L. & ROBERTA B. FUGATE, SECRETS OF THE WORLD'S BEST-SELLING WRITER: THE STORY

TELLING TECHNIQUES OF ERLE STANLEY GARDNER (1980); and DOROTHY

STANLEY GARDNER: THE CASE OF THE REAL PERRY MASON (1978).

B.

HUGHES, ERLE

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During the last twenty years, courts and courtroom proceedings have continued to
be staples in some of our most successful popular culture. Excellent dramatic films
such as The Accused (1988), A Few Good Men (1992), and Philadelphia (1993)
featured courtroom proceedings, as did hilarious comedies such as My Cousin Vinny
(1992), Liar Liar (1997), and Legally Blonde (2001). On television, heroic solo
practitioners such as Perry Mason have been supplanted by complex, often alienated
lawyers working in law firms and district attorneys' offices. However, such shows as
L.A. Law (1986-94), Ally McBeal (1997-2002), and The Practice(1997-2004), as
well as the current Law & Order(1990-present) and Boston Legal (2004-present), still
include courtroom proceedings in virtually every episode.
Often, judges and experienced litigators find it impossible to enjoy court-related
popular culture because it seems to them so unfaithful to what really happens in our
courtrooms, and, indeed, important differences do exist between the average pop
cultural courtroom proceeding and most real ones. I had the opportunity in the late
1990s to discuss the differences in criminal trials with a half dozen Indiana trial court
judges whom I had met while lecturing in the Indiana Graduate Program for Judges. 26 I
in an article I published on pop cultural courts
included a discussion of the differences
27
and courtroom proceedings.
The differences include not only purported procedures and practices in the
courtroom but also the whole manner in which things ultimately fit together or fail to
fit together. As for procedures and practices, opening statements in pop culture are
much more provocative than they are in actual courtrooms. Evidence is more striking,
and examinations and cross-examinations are more elaborate and aggressive. Sidebar
conferences among the judge and the attorneys are very common in popular culture but
much less so in actual courtrooms. Judges do not like to sort out evidentiary and
procedural matters in front of ajury, but if ajudge goes to chambers with the attorneys,
jurors have the distressing tendency to disappear to the restrooms, wander off, and, on
occasion, head home. In pop cultural proceedings, defendants almost always take the
stand, but in actual courtrooms most do not. Closing arguments are very dramatic in
the pop cultural courtroom, and the camera often looks into the faces of the attorneys
from over the shoulders of the jurors, making the film and television viewers feel at
least momentarily like they are in the jury box. In the end, defendants in the real world
are much more likely to be found guilty than they are in popular culture.
In addition to all of the differences noted above, more subtle differences exist in the
ways things fit together. In pop cultural trials almost every statement, piece of
evidence, or witness becomes part of the whole. There are exceptions of course, and
some pop cultural works leave readers and viewers wondering what happened. But, in
general, pop cultural works have a clear narrative direction and provide a sense of
closure.
These characteristics reminded Professor Alan Dershowitz of Chekhov's advice to
the would-be playwright. 28 Chekhov told the playwright that if a character hangs a gun

26. I discussed these matters with the Honorable Lorenzo Arredondo, Cynthia Ayers, David
Dreyer, Ruth Reichard, and Ted Todd.
27. David Ray Papke, The American CourtroomTrial: Pop Culture,CourthouseRealities,
and the Dream World ofJustice, 40 S. TEx. L. REV. 919, 920-30 (1999).
28. See Alan M. Dershowitz, Life is Not a Dramatic Narrative, in LAW'S STORIES:
NARRATIVE AND RHETORIC IN THE LAW 99, 99-100 (Peter Brooks & Paul Gewirtz eds., 1996).

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POPULAR CULTURE AND PERCEPTIONSOF THE COURTS

1231

on the wall in the first act of a play, one character or another had best use it by the third
act. 29 Comparable advice could be given to the screenwriter for a pop cultural trial.
When striking evidence or pointed testimony is presented, it should count for
something in the end.
In real-life trials, by contrast, irrelevant actions and testimony, randomness,
purposelessness, and delay abound. Recalling Chekhov, guns are hanging on the walls,
and nobody appears likely to use them. This is not necessarily a problem. The goal in
an actual trial, after all, is not narrative coherence or closure but rather a just and
correct result. The latter is often messy and imperfect.
None of the differences between pop cultural and actual courtroom proceedings, I
hasten to add, seem to trouble lay Americans as much as they do judges and litigators.
The average adult American routinely normalizes courtroom scenes from cheap fiction,
film, and television; he or she easily brings the courtroom scene within his or her ken.
When Americans read about, listen to, or watch popular courtroom drama, it all makes
perfectly good sense to them. We appreciate pop cultural courtrooms as not only places
that determine guilt and innocence but also sources of lessons about life in general.
The
30
courtroom is one of our most familiar and best-liked cultural conventions.
III. GAUGING THE IMPACT OF COURT-RELATED POPULAR CULTURE

Given the large amount of court-related popular culture and the way lay Americans
easily bring this material within their perception and understanding, we might
reasonably expect court-related popular culture to have an impact. We might anticipate
that court-related popular culture would affect what Americans want and expect from
their real-life courts. We might even wonder if the popular culture could alter
Americans' sense of what constitutes justice and whether it is likely to be achieved in
our system.
Different observers in different eras have surely argued that court-related popular
culture affects actual proceedings. In the middle decades of the twentieth century,
commentators alleged that the previously mentioned Perry Mason had an impact.
When commentators Charles and Mariann Pezella Winnick complained about the way
pop cultural lawyers-but surely not actual ones-were able to extract confessions
from witnesses on the stand, they had Perry Mason first in mind. 31 The distinguished
and highly successful trial lawyer Edward Bennett Williams complained that Mason's
resourcefulness and inevitable victories created unrealistic expectations among
defendants. The very best criminal defense lawyers, Williams said, are fortunate ifthey
can prevail in a bare minimum of their trials.32
In the present, comparable complaints have been heard from the prosecutor's side
regarding the three current CSI series on primetime television. The series feature

29. Id.
30. M. H.Abrams defines conventions as "conspicuous features of subject matter, form, or
technique that occur repeatedly in works of literature." M. H. ABRAMs, A GLOSSARY OF
LITERARY TERMs 47 (7th ed. 1999). Conventions are perhaps even more important in popular
culture than in literature per se.
31. Charles Winick & Mariann Pezzella Winick, CourtroomDrama on Television, J. OF
COMM., Fall 1974, at 67, 73.

32. See Edward Bennett Williams, The High Cost of Television's Courtroom, 3 TELEVISION
13 (1964).

QUART. 11,

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[Vol. 82:1225

attractive and resourceful crime scene investigators who are able to use highly
sophisticated forensic evidence to identify the true perpetrators of crime, usually just
before the end of the hour. Jurors in real-life trials, it is alleged, have come to expect
comparable evidence. 33 In particular, those who watch CSI take DNA evidence to be
incontrovertible and also readily available. 4 They also allegedly have come to attach
less significance to witnesses' testimony, science rather than human memory being the
key in their minds to reliable prosecutions. 35 If a district attorney failed somehow to
present the DNA left on the bullet casings found at the scene of the crime, the
argument goes, a real-life jury consisting of regular CSI viewers would be unlikely to
convict.
Beyond impressions, various scholars have attempted to gauge the impact of lawrelated popular culture on what Americans think of their legal institutions.
Kimberlianne Podlas investigated the effects of frequent viewing of simulated daytime
courtroom shows on men and women called for actual jury service. 36 Victoria S.
Salzmann and Philip T. Dunwoody surveyed beginning law students to see ifpopular
culture had affected their perceptions of the legal profession. 37 Putting an international
spin on the same question that engaged Salzmann and Dunwoody, eight scholars
studied the impact of popular culture on law students' perceptions of lawyers in
and Argentina to the United States and the United
countries stretching from Australia
38
Kingdom and then to Germany.
The most important of these studies for purposes immediately at hand is the one
conducted by Professor Podlas. Her concern-the impact of daytime simulated
courtroom shows-is more important than non-viewers of daytime television would
guess. A dozen of these syndicated shows currently appear, and in some areas it is
possible to literally watch such programming throughout the day. 39 The most famous of
the shows is Judge Judy, featuring former New York City family court judge Judith
Sheindlin pontificating and preening for her audience. Other shows range from the
venerable The People's Court to the mildly bizarre Moral Court. The former once
featured Judge Joseph Wapner. 40 His grandfatherly dignity attracted a large audience in
the 1980s, but the current tone of the show is different. The presiding judge is Cuban
American Marilyn Milian, and advertisements for the show describe Milian as the

33. Karin H. Cather, The 'CSI' Effect: Fake TV and Its Impact on Jurors in Criminal
Cases, THE PROSECUTOR Mar.-Apr. 2004, at 9.

34. See Julie Hilden, How TV Shows Depict Lawyers and Legal Process, CNN LAW
CENTER, Nov. 11,2004, http://www.cnn.com/2004/LAW/1 1/1 1/hilden.tv.lawyers/index.html.
35. See id.
36. Kimberlianne Podlas, Please Adjust Your Signal: How Television's Syndicated
CourtroomsBias Our JurorCitizenry, 39 AM. Bus. L.J. 1 (2001).

37. Victoria S. Salzmann & Philip T. Dunwoody, Prime-Time Lies: Do Portrayalsof

Lawyers Influence How People Think About the Legal Profession?, 58 SMU L. REV. 411
(2005).
38. Michael Asimow et al., Perceptions of Lawyers - A TransnationalStudy of Student
Views on the Image of Law and Lawyers, 12 INT. J. LEGAL PROF. 407 (2005).

39. For a critical examination of these shows, see Michael M. Epstein, Judging Judy,
Mablean and Mills: How CourtroomPrograms Use Law to ParadePrivate Lives to Mass

Audiences, 8 UCLA ENT. L. REv. 129 (2001).

40. See HELLE PORSDAM, Law as Soap Operaand Game Show: The Case of "The People's
Court,"in LEGALLY SPEAKING: CONTEMPORARY AMERICAN CULTURE AND THE LAW 89 (1999).

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POPULAR CULTURE AND PERCEPTIONS OF THE COURTS

1233

"hottest judge on daytime television." In Moral Court Judge Larry Elder presides. He
wears a billowy graduation robe and awards various amounts depending on whether a
"litigant" can show the other party to be morally wrong, offensive, or outrageous. The
setting is a pseudo-courtroom, but Moral Courthas the feel of a game show.
Podlas no doubt appreciated that shows such as Judge Judy and Moral Courtwere
ideal for a cultivation-effect study. The shows offer standardized and frequent drilling
in the workings of something that looks like a court. Some people watch these shows
hour after hour, day after day. Dashka Slater, writing in LegalAffairs, did just that and
dubbed herself and other comparable viewers not "couch potatoes" but rather "court
potatoes. ' 41The regular viewing of generic programming, as suggested earlier, might
"cultivate" perceptions and attitudes.
In her study, Podlas surveyed 241 jury duty respondents in Manhattan, New York;
Hackensack, New Jersey; and Washington, D.C. On the basis oftheir survey responses,
Podlas divided the jury-pool members into two groups: frequent viewers and
infrequent/non-viewers. People in the latter category watched the simulated courtroom
shows once a week or less. A large majority of those polled, it turned out, were
frequent viewers.42 On average, the frequent viewers believed judges should be active,
opinionated directors of courtroom proceedings.43 Especially intriguing was Podlas's
finding that prior court experience did not substantially affect potential jurors'
opinions. 44 When all was said and done, the viewing of daytime television was more
important than exposure to real-life courts in the shaping ofwhat those polled expected
of their courts.
We cannot make too much of this study. It involves only one type of popular
culture. Those surveyed were no doubt thinking more critically about how courts
should work than average unreflective citizens would. But still, the findings of the
study undertaken by Podlas are sobering. Popular culture appears to cultivate a judgecentered vision of the courtroom proceeding rather than valorizing representation by
counsel, a jury of one's peers, and carefully observed procedural rules. Popular culture
seems to endorse a type of courtroom proceeding that is detectably authoritarian and
includes intense moral condemnation from the men and women in charge, that is, the
judges.
CONCLUSION

Should something be done to reduce the impact of court-related popular culture on

Americans' views of the courts and courtroom proceedings? The question is a serious
one for not only judges and courthouse administrators but also for the public as a
whole. In the America de Tocqueville observed in the 1830s, as well as today, courts
and courtroom proceedings play a major role in our self-definition as a people. The
image of the trial may in fact be the most important civic image in the dominant
ideology. If the ubiquitous pop cultural portrayals of courtroom proceedings inculcate

41. Dashka Slater, Court Potato, LEGAL AFFAIRS, May-June 2002, at 9.

42. Podlas, supra note 36, at 11. This result is not surprising since jury pools include
disproportionate numbers of people who are unemployed or retired. Presumably, these same
groups would be more likely to be daytime television viewers.
43. Id. at 11-13.
44. Id.at 14.

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troubling attitudes and expectations, we should be prepared to take steps to guard

against this development.
I have three ideas regarding the phenomenon. They concern what can be done in the
courthouse, in the community, and in the den and family room. The first two of my
ideas have occurred to others and have to some extent been acted upon. My third idea
is the most difficult but perhaps the most important in the long run.
With regard to practices and procedures in real-life courthouses, we need to be
mindful of the possible impact of popular culture on jurors and tailor instructions to
jury pools and questions in voir dire accordingly. The Honorable Patricia D. Marks,
with whom this essay began, uses clear instructions and careful questions to make sure
jurors in her courtroom are not unduly influenced by popular culture and to excuse
those potential jurors who cannot grasp the differences between pop cultural courts and
real ones. 45 The Honorable Jacqueline Connor of the California Supreme Court, Los
Angeles County, would certainly agree. "As members of the legal community," she
argues, "we have an obligation to ensure the accuracy of public perceptions of
'courtroom reality. "'A
In the community as opposed to the courthouse, lawyers, courthouse personnel, and
especially judges should be much more systematic in teaching the general public how
the courts work. Many judges of course already speak regularly to school and
community groups, but to an even greater extent public education could be recognized
as a formal duty of the bench. In explaining how the courts work, judges could be
especially determined to distinguish actual courts from those in the cinema and on
television.
And finally, I think Americans have to approach their popular culture more
critically. After a hard day at the office or around the home, many of us just want
popular culture to wash over us, removing our frustrations and disappointments and
allowing us to escape, but, given the pervasiveness and influence of popular culture,
this attitude is dangerous. Educators should teach us how to challenge our popular
culture, and we should take those lessons to heart. When we are watching a television
show or a DVD in our dens and family rooms, we should intellectually wrestle with
what we are watching. Popular culture can actually be more entertaining and edifying if
we critically examine it. And, furthermore, "court potatoes"--mindless consumers of
court-related popular culture-do not make particularly valuable jurors and citizens or
especially interesting colleagues and friends.

45. Marks, supra note 1,at 42.

46. Jacqueline Connor & Anne Endress Skove, Dial "M"for Misconduct: The Effect of
Mass Media andPop Culture on JurorExpectations,in FuTuRE TRENDs IN STATE CouRTs 2004

104, 105 (Carol R. Flango, Neal Kauder, Kenneth G. Pankey, Jr. & Charles Campbell eds.
2004).