August 2015 Bar Bulletin
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August 2015 Bar Bulletin

Witness Interrogation "Five-0" Style

By Michael R. Garner


I arrived on the mainland in the fall of 1968 to start college in the Bay Area. I had just graduated from high school in Honolulu and San Francisco was the farthest north I had ever lived. The transition to the "temperate" climate of Northern California was difficult, particularly when we went off Daylight Savings Time. I thought the weather was miserable and it made for one homesick boy.

Fortunately, that fall also marked the premiere of the original "Hawaii Five-0" television series starring Jack Lord, "Squirmin' Herman" Wedemeyer and others. It quickly became my escape, to run downstairs one night a week and watch all the great shots of Honolulu. And wonder, "Nobody wears suits in Honolulu." I'm not even sure my dad owned a suit then.

However, I noticed something else on the show. A year or so later, I took my first constitutional law class, which focused on the rights of criminal defendants. It became more and more difficult to tolerate the show as McGarrett's "elite" squad ran roughshod over constitutional rights, court decisions and general common sense. More and more frequently, I found myself stepping back thinking, "They can't do that."

For example: Miranda was relatively new at the time, but it was the law. Except, apparently, in Hawaii. On numerous occasions, McGarrett and Danno would question a suspect without informing the suspect of his rights. And how could the television viewer determine the suspect was indeed a "suspect?" Oftentimes the interrogation occurred in the middle of a shootout or where the suspect and Five-0 team members were pointing handguns at one another.

The third degree? That had been banned years earlier, or at least confessions obtained by physical coercion had. But that didn't stop our local heroes. Remember Chin Ho,1 McGarrett's very big, but not very bright sidekick? I often thought of him as the squad's enforcer. McGarrett never actually told him to "lean" on suspects, but it was certainly implied. And we viewed scenes where, in the middle of a losing fistfight, the suspect would finally say, "Okay, I'll talk."

The little white lies approach: "Your partner has squealed. If you don't cooperate, we'll throw the book at you and he'll get a shorter sentence for having turned state's evidence." Well, said partner had not squealed, and had probably been killed in a shootout. But the ploy had the desired effect: The suspect spilled his guts and the confession presumably held up. You never saw a courtroom where a confession was thrown out or McGarrett's squad had to explain and justify its conduct. Presumably, all's well when guilty defendants are convicted.

In this respect the show reminded me of "Dragnet" - you never saw a trial, never saw the sentencing; you just assumed justice was done. At the conclusion of each "Dragnet" episode, the narrator announced the sentences meted out to the perps. The sentence usually involved some time at San Quentin.

Years later, I have another issue with the way trial work is portrayed in movies on television. I have done far too much trial work (advice to young lawyers: turn back while you still can), but find that clients contemplating litigation or actually gearing up for trial have a misunderstanding of the process. "It's not like it's depicted in the movies," I'll tell clients. "Not at all." (For one thing, we're much better looking. And you'll never get a judge as ridiculous as Judge Judy.)

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