Legal Fact or Legal Fiction: Busting Common (or Uncommon) Law Myths
Today I gave a presentation to my business group, North Haven BNI, and discussed common legal urban legends that exist in popular culture and unfortunately may be relied on by people in real legal situations. Here they are plus a few more. Please leave any others that you might’ve heard in the comments below and I’ll respond to them.
All laws are written.Not exactly. While all law exists in some sort of written record, much of it was made by courts (instead of by legislatures) and exists in court decisions. This is known as the common law. Many legal principles, including negligence and contract law exist only in the common law and cannot be found in statute.
The United States Supreme Court is the final decider of all law in the United States.
No. The U.S. Supreme Court has the final say over federal law and U.S. Constitutional questions. State supreme courts are the final arbiters of state issues. State cases may be reviewed by the U.S. Supreme Court only if they contain federal issues, such as criminal rights.
Contracts must be in writing.
No. An oral contract can be enforced unless there is a specific law (e.g. statute of frauds, Home Improvement Act) that requires that type of contract to be in writing to be enforceable.
Police officers are not allowed to lie during investigations.
Not true at all. Police officers can and do lie in investigations. One example is undercover officers setting up drug dealers. The classic “Are you a cop?” question asked by hookers and drug dealers in crime shows does not work. See the “Breaking Bad” video clip below.
An arrest is not valid if a person is not “Mirandized.”
False. The failure of police to Mirandize a defendant only makes the resulting confession inadmissible at trial. Other evidence can still be used. It must be noted that after the Supreme Court established the rule that bears his name, Ernesto Miranda was retried and convicted without his confession.
It’s always best to cooperate with the police and tell them what they need to know.
It is best to not talk to the police until you have talked to your attorney.
Arrested persons have the right to one phone call.
Not really. Arrested persons must be allowed to contact an attorney. While police tend to allow arrestees to call family or friends to help them bond out or to make other arrangements, there is no Constitutional right to this.
If the police ask to search me (or my home or car) and I refuse, they will think that I’m guilty.
This is probably true–the police likely will think you’re guilty. That is not a good reason to consent to a search. Here’s the deal: in this situation the police already think you’re guilty. Do not consent to a search and make it easier for a court to actually find you guilty.
You can beat a breathalyzer by putting pennies under your tongue or eating peanut butter before taking the test.
There is no shortage of rumored tricks to mess up breathalyzers. They do not work. The way to avoid failing a breathalyzer is to not be legally drunk.
Crime victims have the option to “press charges.”
Very false. Prosecutors decide to file and drop charges. People do not have to call the police and the police do not have to make arrests but once an arrest has occurred and a court has found probable cause to support the arrest, charging decisions are in the prosecutor’s hands. Even if complaining witnesses (also called victims) decide they do not want the defendant convicted, the State does not have to abide by those wishes. This is very common in domestic violence cases.
Criminal defendants are entitled to three plea offers before they go to trial.
This is a jail rumor. While it’s possible that a person may receive three offers before setting a case for trial, there is no legal basis for it. Prosecutors and judges are not required to make any plea offers to a defendant. Once an offer is made, another is not likely to be extended until the present offer is rejected. Additionally, subsequent offers might not be better than earlier offers. This is a basic principle of contract law.
In a divorce, property is divided in half, equally between the parties.
Not in Connecticut which is an all-property, equitable distribution state. Some states have community property laws which are closer to this concept but still not the same. This trope is occasionally inverted in movies and TV shows wherein one spouse takes everything from the other in a divorce, including property that was the other’s before the marriage. The bottom line is that divorce is anything but simple.
A couple who cohabits for seven years is considered legally married.
Not in Connecticut. This is a reference to “common law” marriage which exists in some states but not ours. Those states have their own requirements for the recognition of common law marriages. Couples cannot become common-law-wed in this state after any period of cohabitation but valid common law marriages from other states may be recognized.
The First Amendment allows you to say anything anywhere at any time.
No. The First Amendment is not absolute. Many types of speech are not protected speech, such as true threats and defamatory statements. Moreover, the First Amendment is only applicable to government actions. Private parties, such as condo associations and businesses can restrict members’ and guests’ speech provided it is not done in an illegally discriminatory manner.
Courts frequently hand out awards to plaintiffs in “frivolous” lawsuits, such as the man who put his RV on cruise control, then got up from the wheel and made a sandwich; or the burglar who sued the owner of the house he broke into for negligence when he got hurt; or the woman who sued a bar for slipping in the drink she threw at her boyfriend.
No. These are all classic stories used by “tort reform” advocates and insurance companies, often sent around in email forwards. One common email is the “Stella Awards,” named after the woman who famously sued McDonald’s for being burned by spilled coffee. The McDonald’s case was a good, legitimate case that was spun negatively in the media. The other cases cited above that are often circulated are not real. It is true that anyone can sue anyone else for any reason but it is hard to prevail.
The agent of consent for sex is 18.
Not in Connecticut. The age of consent is 16 in this state. I wrote about this here. It’s one of my most-viewed blog posts. Consent ages vary state by state.
It is illegal to drive without shoes.
Not true. There is no law in Connecticut that requires shoes to be worn while driving.