Insane but genuine question: I 100% understand the grating aggravation of being compared to Fictional Character repeatedly in a reductive way, but is there something remarkably shitty about Matt Murdock I missed?? I don't even have dogs in this race! I was just intrigued by your scathing review of him and Tumblr search gave me nothing lmfao.
This is real stupid and has about as much depth to it as a puddle, but I'll plumb it for all it's worth.
The crime for which I cannot forgive Matt Murdock is in the TV show attempting to designate his own client a hostile witness on the stand.
For people who don't know anything about what the hostile witness stuff means, it looks like kind of a daring move in which he drags his client through Anything to get a Not Guilty, even in spite of his client. Wow!!!
Believe me, this is a move so stupid that it's literally incomprehensible. It's so weird that the judge should have shut the whole thing down immediately. Like, I can't even imagine what a judge would have to do because the whole thing. Just. WHAT.
In trial procedure (and most of y'all should be vaguely familiar with these words), each side gets to call witnesses. The side that calls a witness gets to ask that witness questions first (direct examination) and then the other side gets to ask questions (cross examination). After this, sometimes the first side asks questions again (redirect) and then maybe the other side (recross).
There are some rules about how this all takes place. The most pertinent one here is that during direct examination, when you're asking your own witness things, you are only allowed to ask open-ended questions. When you are cross-examining, you are allowed (and good technique basically requires) that you ask leading questions.
Here are some examples to clarify what that means.
What happened on that Sunday evening?
What color shirt was he wearing?
The assumption is: you know what your witness will say, because you're the one who goddamn put them on the stand and you shouldn't be doing that unless they will help your case. But you can't get too many advantages, so you're not allowed to lead them around by the nose when you ask them questions.
It is different with someone else's witness. Someone else's witness, you can lead around, because presumably you haven't prepared them and you want to make sure to get efficiently to the facts you need established.
On that Sunday evening, you got into a fight, didn't you?
He was wearing a pink shirt, was he not?
And that takes about ten minutes, doesn't it?
There are other ways to do leading questions, but the statement + "is that right" is the easiest way.
Why are you allowed to ask leading questions?
Because the opposing witness is... you maybe guessed it... hostile to your case. The assumption is, if the other side called them, they are not on your side and they don't want to answer things that benefit you. Leading questions is one way to force them to do this.
All opposing witnesses are presumed hostile. That's why you get to do leading questions.
So if all opposing witnesses are hostile, when does the "hostile witness" thing naturally come into play?
When it's your own witness who's against you. And, in my state's law, it is extremely specific: that witness must unexpectedly turn hostile on the stand. (Which is why I can have some fun telling prosecutors that their witnesses aren't on their side and ruin this in advance, but that's beside the point.) In other states, presumably, it's a little more simple: you are calling a witness hostile to your side of the case.
The reason you would ask a judge to designate a witness hostile is for one purpose only: so you can ask them leading questions.
So the logical underpinning of this is: an attorney must have a way to force the witness onto the stand in order to pull this kind of maneuver. If a witness doesn't want to be there, they could just Not Show Up, right?
The way an attorney can force a hostile witness to the stand is through one of the biggest powers of an attorney, the power of subpoena. With a subpoena, an attorney calls on the power of the court and designates a witness, and says, if you don't show up and testify here you're subject to contempt of court and jail.
Having gone through all of that...
Let's talk for a second about the right to remain silent. It is, in fact, enshrined in the United States Constitution. The decision of whether or not to testify belongs to the defendant, not the attorney. The attorney absolutely cannot override it. Most judges will give a little extra lecture to defendants about this before they testify just as an extra safeguard to make sure they know this and they're not just doing what their attorney said.
That is to say: an attorney has no legal power to force their client onto the stand. The client goes or the client does not go at the client's will. The client can refuse to answer at any point and the attorney can do nothing about it.
With no legal power to force someone onto the stand, the request to make someone a hostile witness makes no sense. Again.
Finally, and most importantly:
THE HOSTILITY IN QUESTION IS TOWARDS THE CLIENT. IT IS ANTI-CLIENT HOSTILITY. The attorney literally has no legal interest to assert in the case, so the witness isn't hostile towards them. The client can be hostile towards the tactics that the attorney thinks are best. But the client can MAKE THEIR OWN DAMN CHOICES and the presumption. the arrogance. the paternalistic bullshit of informing the client that they are hostile to themselves.
It's an absurdity, and for a conflict like this between attorney and client to happen in open court is an unbelievable public breakdown of the attorney-client relationship and an embarrassment from which the attorney's reputation may never recover.
Matt Murdock meticulously denied his client one of the most important rights in the Constitution that lawyers are sworn to protect, the right to remain silent.
Matt Murdock opted to override his client's decision-making in a wholly unethical (against the Rules of Ethics) and unconstitutional way.
Matt Murdock improperly asked for his own client to be declared hostile to himself, a legal absurdity.
Matt Murdock blew up his complete failure in client management and communication very publicly and very embarrassingly in a way that would be remembered forever.
And he did all of that so he could... ask meaner questions.
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