History HollywoodLaw / Daredevil2015

* In "[[Recap/Daredevil2015S3E4Blindsided Blindsided]]", Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like the general visitation room, with many other inmates and visitors present. An attorney-client prison visit would likely take place in a private room where they can't be overheard by others (like the one where we see Fisk have meetings with his lawyers and with Ray Nadeem in the first episode of the season). However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn't have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. While it's rare for defense lawyers to get a client's conviction reversed entirely, it is not uncommon for them to obtain some other benefits for the client, such as getting him a reduced sentence.

* In "[[Recap/Daredevil2015S3E4Blindsided Blindsided]]", Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like the general visitation room, with many other inmates and visitors present. An attorney-client prison visit would likely take place in a private room where they can't be overheard by others. However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn't have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. While it's rare for defense lawyers to get a client's conviction reversed entirely, it is not uncommon for them to obtain some other benefits for the client, such as getting him a reduced sentence.

** When Mrs. Cardenas first goes to Nelson & Murdock for a client consultation, Foggy says they will try to negotiate a better deal for her. This is the right approach. But later on, after Wilson Fisk takes over Tully's properties, Elena comes to them and lets them know that Fisk has doubled Tully’s offer, and Foggy inexplicably changes his mind and agrees that she should not accept it. Afterwards, Matt tells Foggy that that was a bad idea, and he is seemingly proven right as Fisk subsequently has Elena killed as bait to lure Matt into an ambush by Nobu. But actually, Matt is right for a different reason: as a small firm that's only just opened up, Nelson & Murdock are in no position to stop Fisk from carrying out his plans here. Under these circumstances, Foggy and Matt should negotiate with Fisk's lawyers to try and get the best possible deal for their client. They also need to sit down with Mrs. Cardenas and give her the blunt truth about the harsh realities of litigation. Whether or not this would've prevented Fisk from having her killed and he would've simply found someone else to kill as bait for Matt, is another question entirely.
* "[[Recap/Daredevil2015S1E9SpeakOfTheDevil Speak of the Devil]]": Matt goes to the art gallery owned by Fisk's girlfriend Vanessa Marianna to see how much she knows about Fisk's operations / whether she knows Fisk for the murderous crimelord he really is. The visit goes sideways when Fisk himself shows up, and there is a lengthy and tense conversation between the two archenemies. Since Matt is the opposing counsel on a pending lawsuit that Fisk is involved in (and one where Fisk has his own counsel), this sort of ''ex parte'' communication is completely inappropriate under [[https://decaturlegal.com/matt-murdock-ethical-attorney-netflix-daredevil/ section 4.2]] of the Model Rules of Professional Responsibility. When dealing with represented parties, Matt ethically can't reach out to Fisk directly; he'd have to go through Fisk's lawyers first. On the other hand, Matt and Fisk both seem to be aware that this conversation is unethical, since upon Matt introducing himself, Fisk says, "[[LampshadeHanging Although we probably shouldn't be talking. I believe we're on opposite sides of a tenancy case.]]"

* In "[[Recap/Daredevil2015S1E4Blindsided Blindsided]]", Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like the general visitation room, with many other inmates and visitors present. An attorney-client prison visit would likely take place in a private room where they can't be overheard by others. However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn't have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. While it's rare for defense lawyers to get a client's conviction reversed entirely, it is not uncommon for them to obtain some other benefits for the client, such as getting him a reduced sentence.
* In "[[Recap/Daredevil2015S1E5ThePerfectGame The Perfect Game]]", the FBI conduct a search of Matt's apartment based on information supplied by Fisk that Matt is a criminal. Nadeem can be given the benefit of the doubt, as it is inferred that he did get a search warrant before they raided the apartment. He also clearly did some investigation beforehand, seeing as he has Wesley's Confederated Global check from the Healy case in season 1 that he shows to Karen when he questions her. But he should have been way more skeptical and questioned why Fisk was targeting one of the lawyers who helped send him to prison.\\

* In "[[Recap/Daredevil2015S1E8UpstairsDownstairs Upstairs/Downstairs]]", Matt and Nadeem do an illegal search of Dex's apartment looking for evidence tying him to his attack on the ''New York Bulletin'', such as the Daredevil suit that Melvin Potter constructed for Dex. Before they break in, Nadeem explains his plan to circumvent the requirement for a search warrant by leaving any evidence they find in place, then setting off the fire alarm on the way out. Matt agrees to it, but he should have known better. Under the “exigent circumstances” exception to search warrant requirements, police are allowed to enter a burning building to search for and rescue people and attempt to put out the fire (not that they should, since they don't have proper firefighting gear). However, the scope of such a search is limited by the nature of the emergency that justifies the warrantless entry. In the case of a fire, they can search for people in the burning building to the best of their ability. They can also see whatever is in "plain view" (well, Ray can, in this case). This exception does not give them ''carte blanche'' to conduct a full search for evidence of criminal activity. For that, they still need a warrant. And if it was discovered that Matt and Nadeem set off a false fire alarm to circumvent the search warrant requirement, any evidence they found would be suppressed. All things considered, it's a good thing they didn't carry out this plan.

** The seal behind the judge implies that the trial is in federal court. If that were the case, the prosecution would not be done by the District Attorney but by the United States Attorney. The seal also identifies this court as the "United States District Court for the District of New York City." There is no such court, the correct district in Manhattan is the Southern District of New York.

** Matt's "direct examination" of Castle is anything but one. After a few questions, Matt asks the judge for permission to treat Frank as hostile (ask the witness leading questions as if they were called by the opposing counsel), then just abandons all pretense of questioning Frank and argues the case to the jury as if he was giving a closing speech. Even worse, ''no one does anything about it''. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting vehemently, and the judge would've likely ruled, "Sustained. Mr. Murdock, you are questioning the defendant. Save your speech for your closing argument." In fact, it's possible the judge might have intervened without the need for the prosecutors to make an objection. Most judges will "let the lawyers try their case," but what Matt did is so extreme that the judge might have taken action without an objection.

Then, in later episodes, Tower insists that Fisk is “solely” under federal jurisdiction. Thing is, as Foggy points out, Fisk committed crimes before and after his stint in prison that he could be prosecuted for under state law. Double jeopardy simply means that Tower wouldn't be able to prosecute Fisk under state law covered by the RICO case; he could still prosecute Fisk for other crimes, such as the deaths of Detective Blake and those other cops who were murdered on his orders. In order to ensure that Fisk gets convicted of something, it's likely that in real life, the feds would've deferred to Reyes (the District Attorney at the time of Fisk's original arrest) and let her prosecute Fisk for the more serious crimes, and then taken their turn at trying him for the RICO case.

** As students at or near the top of their class at an Ivy League law school like Columbia, Matt and Foggy likely would not have been interns working out of a storage room. Big firms like Landman & Zack recruit students like them and bring them on as “summer associates” after their second year in law school. Some firms would probably not consider Matt for such a position because of his blindness (though they'd never admit that to his face), but he still would have had opportunities. It's possible they could have been interns before or after being summer associates, especially if it was a paid internship and they needed the money (they had to have some money lying around to get Nelson & Murdock up and running).
** The straw that breaks the camel's back for Matt that leads him to suggest to Foggy that they should go start their own firm is after a meeting that was comprised of [[ArmyOfLawyers eleven L&Z lawyers (plus Matt and Foggy) on one side of the table, with just the poor plaintiff and his lawyer on the other]]. Such a scene is likely meant to be an exaggerated stereotype of big firm lawyering. That said, the point of this flashback isn’t legal accuracy, but to illustrate that this big law firm does not take the side of the little guy and that Matt and Foggy would not like working there.

** In "[[Recap/Daredevil2015S1E5WorldOnFire World on Fire]]," while Matt goes to the 15th Precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyers at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case with. The fact that the conversation takes place there in the lobby is Marci's way of essentially saying to Foggy that she doesn't see the case as important enough for them to go up to her office to discuss this...even though they really should be doing this in her office for the sake of privacy. On top of that, Foggy's TheReasonYouSuckSpeech to Marci at the end of the discussion gets it backwards. Foggy says it's Marci's job to convince Mrs. Cardenas to take Landman & Zack's offer. In actuality, Marci's job is to make the case to Foggy as to why Mrs. Cardenas should take Landman & Zack's offer. Foggy's job is to then relay this information to Mrs. Cardenas, and advise her on whether or not to accept it.
** When Mrs. Cardenas first goes to Nelson & Murdock for a client consultation, Foggy says they will try to negotiate a better deal for her. This is the right approach. But later on, after Wilson Fisk takes over Tully's properties, Elena comes to them and lets them know that Fisk has doubled Tully’s offer, and Foggy inexplicably changes his mind and agrees that she should not accept it. Aftewrwards, Matt tells Foggy he shouldn’t have done that, and he is seemingly proven right as Fisk subsequently has Elena killed as bait to lure Matt into an ambush by Nobu. But actually, Matt is right for a different reason: as a small firm, Nelson & Murdock are in no position to prevent Fisk from carrying out his plans for the building. Under these circumstances, Foggy and Matt should negotiate with Fisk's lawyers to get the best possible deal for their client. They also need to sit down with Mrs. Cardenas and give her the blunt truth about the harsh realities of litigation. Whether or not this would've prevented Fisk from having her killed and he would've simply found someone else to kill as bait for Matt, is another question entirely.

** Healy wants to waive all discovery and go directly to trial. The writers seem to have mixed up discovery in a criminal case with how it works in a civil case. Under the New York law governing discovery in criminal cases that were in effect in 2014 when season 1 was filmed, defense discovery basically consisted of a written demand to view the prosecution’s evidence before the trial. There were no time-consuming discovery procedures such as depositions or written interrogatories. So there doesn’t seem to be a good reason to waive discovery, even if Healy wants to go to trial quickly. Especially considering that it is also poor form to go to trial without knowing what the evidence against Healy is, as that is crucial to forming an adequate defense strategy. Healy may want to go to trial quickly, but he doesn’t necessarily have the last word on the subject. If Matt and Foggy need time to prepare the case, they’re probably going to get it, no matter what Healy wants. Healy may have prevailed on this point, however. The case appears to have been brought to trial very quickly (and we can imagine Fisk was pulling strings here).
** Matt tells Healy he’ll need to testify. Like happens later in Frank Castle's trial in season 2, the decision on whether or not to testify is up to the client, not his counsel.
** The judge pre-instructs the jury at the beginning of the trial. This is standard procedure. However, in this case, we hear the judge saying something about them being unable to reach a verdict. This is not something that would be mentioned at the beginning of the case, because the judge wouldn’t want the jury to even be thinking about failing to reach a verdict.
** An opening statement is supposed to be a non-argumentative discussion of what the evidence will show. In the opening statement Foggy delivers, he is basically arguing the case. He also makes a rookie mistake by pointing dramatically at the prosecutors during his opening. And like in a lot of courtroom dramas, he commits major breaches of courtroom etiquette by going into the well of the courtroom, getting way too close to the jury box, and at one point he even jabs a finger on the top of the partition surrounding the jury box.

** When the jury foreman reports they are unable to reach a verdict, Foggy whispers to Matt, “Allen charge,” and says the judge will send the jurors back to continue deliberating. “Allen charge” is shorthand for a jury instruction that is given when the jury reports a deadlock, and the judge sends them back to continue deliberating. New York uses a modified version of the “Allen charge.” Realistically, the judge wouldn’t immediately instruct them to continue deliberating. She would first question the jury foreman about whether she thinks further deliberations would help. She might also ask for the exact numbers on how the jury is split (though without disclosing which number is for “guilty” and which is for “not guilty”). Depending on those responses, the judge would then decide whether to instruct the jury to continue deliberating. The judge might confer with counsel at sidebar before making their decision. The first time the jury reports a deadlock, it’s likely the judge would instruct them to continue deliberating. If, after further deliberating, the jury continues to be deadlocked, the judge would eventually declare a mistrial.

** It starts with Christopher Roth, the public defender who serves as Frank’s original lawyer. No self-respecting defense attorney would suck up to the District Attorney the way Roth does. In his scene at Nelson & Murdock, the way he talks makes it seem as though he's working for Reyes instead of his client, especially when he tries to get Karen to sign a false statement that fits Reyes's theory of the case. He even talks enthusiastically about his own client getting the death penalty in Delaware. The remark he makes about having won a domestic violence case because it’s all about protecting women also makes no sense. He’s (supposedly) a defense lawyer, who would have been representing the accused ''abuser'', not the victim. While women can be abusers and rapists, the majority are men, and the majority of abuse victims are women. Finally, no court would ever appoint someone who had tried only one case to represent the defendant in a multiple murder case.

** While Matt is away helping Elektra infiltrate a gala, Foggy stays at the hospital and negotiates a plea deal for Frank. Foggy does a pretty fantastic job here, in negotiating 37 counts of murder down to one, even though such a negotiation would be very unlikely to happen in real life unless the prosecution's case ran into some major snags. But when taking the defendant’s plea after the deal has been struck, the judge (or in some cases, the prosecutor) goes over the terms of the deal to make sure that the defendant understands and agrees to them. The judge will also ask a series of questions to make sure the defendant is taking the deal willingly, and has not been coerced or been offered something improper in return. After this, the judge takes a waiver of the defendant's constitutional rights, then the defendant enters their plea (and in most states, the defendant has to sign a written form that outlines the terms of the deal and the defendant’s agreement to it). None of these things happen in Frank's arraignment, and, of course, he reneges on the deal by pleading “not guilty.”

** When Foggy tells Matt about the trial date, Matt says they’ll “motion for an extension.” In this context, “motion” is not a verb. A postponement of a trial is called a “continuance.” A lawyer would say, “We’ll move for a continuance”, “We’ll ask for a continuance” or “We’ll file a motion for a continuance.”
** After that, when Matt says they’ll get an extension, Foggy tells him Frank agreed to the trial date. That Frank agreed to this trial date is irrelevant, because his right to a speedy trial does not override his right to the “effective assistance of counsel” as guaranteed by the Sixth Amendment to the U.S. Constitution. Matt and Foggy would've almost certainly been granted a continuance by arguing they cannot possibly provide adequate counsel to their client with only a week to prepare.

** Throughout the trial, Karen has several one-on-one meetings with Frank by herself. As an employee of Nelson & Murdock, her conversations with Frank would be protected by attorney-client privilege. However, Karen does not have the legal training or knowledge to recognize the legal significance of whatever Frank is telling her or to know what follow-up questions to ask. Even if Frank was insisting on talking to Karen alone, Matt and Foggy should have insisted on going with her in the interests of “client control,” something that (admittedly) would be very difficult with someone like Frank.

** Reyes’s opening statement is argumentative, and comes off more like a final argument than an opening statement, which is supposed to summarize, in a non-argumentative manner, the evidence and witnesses that the jury will be shown during the trial. It was objectionable on this basis, but Foggy does not object. However, whether to object during opening is a judgment call on the counsel's part.
** The defense's opening statement as delivered by Foggy is also problematic. Matt is supposed to be the one giving the defense's opening statement, but he's running late because he overslept, forcing Foggy to step in. The ethical thing for Foggy to do at this point would be to defer the defense's opening statement, or at the very least call a short recess so he can track Matt down. The judge even asks Foggy if he wants to do so. Delaying the opening statement would've probably been the better call to make, seeing as Foggy’s opening statement doesn’t actually tell the jury what the defense theory of the case is or what the defense's evidence will show. And like in Healy's case, Foggy commits a major breach of courtroom etiquette by walking into the well of the courtroom and getting way too close to the jury box.

** When Tepper says he has to say something (which is that Elektra threatened him), the judge sends the jury out of the courtroom. However, Frank should not have also been removed from the courtroom; he has a right to be there. And it probably was not necessary to also remove the spectators from the courtroom. After Tepper makes his statement about being threatened, Foggy correctly moves for a mistrial, which should have been granted. Striking Tepper’s testimony is not the proper course of action in these circumstances, seeing as he is a critical witness for both sides (the prosecution cannot prove its case without Tepper's testimony, and the defense has not had the opportunity to cross-examine him). While the judge might give the jury instructions to disregard Tepper’s testimony, it's very difficult to “unring the bell,” so to speak.
** And there is the issue of whether Tepper altering the medical records on Frank's family is relevant to the case at hand. In federal courts and many states like New York, a witness’s veracity for truthfulness is relevant. Even if Elektra hadn't threatened him, Tepper's altering medical records would discredit his testimony, which could be introduced on cross-examination. Confronting Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Frank’s case. However, as the medical records would have been collateral, the judge would have limited questioning to avoid confusing the jury with facts not material to Frank’s case.
** Expert witnesses, such as the doctor who testifies regarding Frank’s brain injuries, are allowed to give their expert opinions regarding facts (e.g. Frank suffered a brain injury, and this brain injury affects his judgement). They are not allowed to make legal conclusions (e.g “any infractions would be considered crimes of passion”), which are for the judge and the jury to decide. Also, "crimes of passion” is only really applicable when converting murder to manslaughter, which is still a serious crime, and murder is not the only crime that Frank has committed onscreen (kidnapping, false imprisonment, torture, etc).

** When Frank takes the stand, a young man in the gallery begins yelling about how Frank killed his father. The judge orders him removed from the courtroom. However, she does nothing about the spectators waving signs in the courtroom decrying Frank as a vicious murderer who should be burned at the stake (and at least one sign reading "Free Frank"). Those spectators and their signs should have also been removed, as they are '''not allowed in a courtroom'''. Spectators are not even allowed to wear ribbons or pins commemorating the alleged victims. In fact it's highly unlikely these people would've made it past security, either. As soon as it becomes apparent that the judge isn’t taking action, Foggy should have objected to the presence of the sign-waving spectators and asked for them to be removed too; this should have been done at a sidebar, out of the hearing of the jurors. This might have been another time to move for a mistrial.
** Matt’s “direct examination” of Castle is anything but one. After a few questions, Matt asks the judge for permission to treat Frank as hostile (ask the witness leading questions as if they were called by the opposing counsel), then just abandons all pretense of questioning Frank and argues the case to the jury as if he was giving a closing speech. Even worse, ''no one does anything about it''. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting vehemently, and the judge would've likely ruled, "Sustained. Mr. Murdock, you are questioning the defendant. Save your speech for your closing argument." In fact, it's possible the judge might have intervened even if the prosecutors didn’t object. Most judges will “let the lawyers try their case,” but what Matt did is so extreme that the judge might have taken action without an objection.
** When Frank asks the judge if he could say something (so he can have his outburst on the stand), she should have said “no.” If she allowed him to speak, she should have stopped him and had him removed from the courtroom much sooner.

** Rule 35 of the Federal Rules of Criminal Procedure allows the government to request a post-conviction reduction in sentence for a defendant/inmate who has provided “substantial assistance.” It does not mention any other types of benefits that such a person might receive. With that said, the benefits that Fisk receives are the kind that prosecutors are allowed to give to cooperating witnesses, for example, the return of forfeited property or an agreement not to prosecute someone close to him (in this case, Vanessa). In practice, Ben Donovan negotiated a very, very good “cooperating witness” deal with the FBI. It is also realistic that Fisk would be removed from the prison where he’d been shanked ([[FalseFlagOperation by an inmate he'd paid off]], as is later revealed), but moving him to house arrest in a Manhattan penthouse is out of the ordinary. The normal move would be to transfer him to another prison or to some kind of protective custody. That said, the later revelation that many of the FBI officials involved are on Fisk's payroll explains away why any red flags that should've come up got ignored.

** There is a lot of confusion about state vs. federal jurisdiction throughout season 3 as it pertains to Fisk's crimes. The early episodes establish that Fisk was prosecuted under the Racketeer Influenced and Corrupt Organizations Act, and is in federal custody. Yet when Nadeem proposes moving Fisk to house arrest, he and SAC Tammy Hattley meet with District Attorney Blake Tower and the NYPD Commissioner. As local law enforcement officials, they wouldn’t be involved in the change in Fisk's status. While it is possible that Hattley and Nadeem are simply conducting a courtesy meeting to inform Tower and the NYPD of what the FBI was doing (considering the sorts of crimes that Fisk committed in season 1), they seem to be seeking the locals' approval for Fisk to be moved.\\
Then, in later episodes, Tower insists that Fisk is “solely” under federal jurisdiction. Thing is, as Foggy points out, Fisk committed crimes before and after his stint in prison that he could be prosecuted for under state law. Double jeopardy simply means that Tower wouldn't be able to prosecute Fisk under state law covered by the RICO case; he could still prosecute Fisk for other crimes, such as the deaths of Detective Blake and those other cops who got killed on his orders. In order to ensure that Fisk gets convicted of something, it's likely that in real life, the feds would've deferred to Reyes (the District Attorney at the time of Fisk's original arrest) and let her prosecute Fisk for the more serious crimes, and then taken their turn at trying him for the RICO case.
* In "[[Recap/Daredevil2015S1E4Blindsided Blindsided]]", Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like the general visitation room, with many other inmates and visitors present. An attorney-client prison visit would likely take place in a private room where they can't be overheard by others. However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn’t have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. While it's rare for defense lawyers to get a client’s conviction reversed entirely, it is not uncommon for them to obtain some other benefits for the client, such as getting him a reduced sentence.

Where the search becomes problematic is that at this point in time, Matt's apartment isn't just his home, it’s also his law office, as we saw him working on the Aaron James case here in ''Series/{{The Defenders|2017}}''. During the search of the apartment, the FBI agents appear to search his desk and the surrounding area. They know Matt is a lawyer, and once it was determined that his apartment is doubling as his office, they should have taken the appropriate steps to ensure that the attorney-client privilege is preserved. Fortunately, it’s likely that at least most of the documents in Matt’s files are in Braille, which most of the FBI agents probably can’t read anyway.
* When Nadeem crashes Foggy’s campaign event, he tries to get Foggy to snitch on Matt by suggesting (among other things) that he and Karen are accessories to Matt’s crimes or, if they’re lucky, merely aiders and abetters. He says it in a way that implies that being an accessory to a crime is more culpable than aiding and abetting is, when it's not. Under the federal criminal statutes defining "parties to a crime", statutes that Nadeem should be familiar with, an “accessory” is an accessory after the fact, someone who assists the perpetrator of a crime after its commission. Someone who "aids and abets" is someone who assists, induces or otherwise participates in the commission of the crime. Someone who aids and abets a criminal receives the same punishment as the principal (the actual perpetrator). The punishment for being an accessory after the fact is half of whatever the punishment is for the principal. So Nadeem got it backwards.
* In "[[Recap/Daredevil2015S1E8UpstairsDownstairs Upstairs/Downstairs]]", Matt and Nadeem do an illegal search of Dex's apartment looking for evidence tying him to his attack on the ''New York Bulletin'', such as the Daredevil suit that Melvin Potter constructed for Dex. Before they break in, Nadeem explains his plan to circumvent the requirement for a search warrant by leaving any evidence they find in place, then setting off the fire alarm on the way out. Matt agrees to it, but he should have known better. Under the “exigent circumstances” exception to search warrant requirements, police are allowed to enter a burning building to search for and rescue people and attempt to put out the fire (not that they should, since they don't have proper firefighting gear). However, the scope of such a search is limited by the nature of the emergency that justifies the warrantless entry. In the case of a fire, they can search for people in the burning building to the best of their ability. They can also see whatever is in “plain view” (well, Ray can, in this case). This exception does not give them ''carte blanche'' to conduct a full search for evidence of criminal activity. For that, they still need a warrant. And if it was discovered that Matt and Nadeem set off a false fire alarm to circumvent the search warrant requirement, any evidence they found would be suppressed. All things considered, it’s a good thing they didn’t carry out this plan.
* In "[[Recap/Daredevil2015S3E11Reunion Reunion]]", Fisk's conviction is officially reversed. The court mentioned by Donovan in his press conference statement is the right court; the U.S. Court of Appeals for the Second Circuit is the appellate court that would have heard Fisk’s appeal. And for the most part, the timeline lines up: season 3 takes place about two years after Fisk’s arrest at the end of season 1. This is probably the minimum amount of time needed for his case to make its way through the trial and appellate courts. A case like this could easily take even longer (note that at the end of season 1, Foggy stated correctly that it would take at least a year to bring Fisk to trial). Then there's the reversal itself. Contrary to popular belief, appellate courts do not go looking for reasons to reverse criminal convictions. The vast majority of criminal convictions are affirmed (upheld) on appeal. In his statement, Donovan does not mention the grounds for the reversal, making it unclear whether it was legit. Of course, there’s a good chance it wasn’t, because this is [[ScrewTheRulesIHaveConnections Wilson Fisk]] we're talking about. The government’s decision not to re-try Fisk is interesting. With a few exceptions (for example, when a conviction is reversed for tainted or insufficient evidence), a criminal defendant can be re-tried after a reversal on appeal. The only thing Donovan says about this is that the government has seen the error of its ways, so does not see it as worth it. But again, since this is [[ManipulativeBastard Fisk]], it’s entirely possible there was a fix going on.
* Nadeem’s sit-down with Tower in "[[Recap/Daredevil2015S3E12OneLastShot One Last Shot]]", after he hires Nelson & Murdock as his counsel, is known as a “proffer.” This would likely be the subject of lengthy negotiations and a written agreement, as would Nadeem’s cooperation afterwards, so what we see is largely condensed for the purposes of time. That same day, though, he gives testimony before a grand jury. In real life, Tower probably would not be having Nadeem testify right after the proffer is made, much less ask for Fisk to be indicted. Nadeem coming forward would just be the first step in a major investigation, and the indictment would be a long ways off.

** First off, the declarant has to be dying (the New York rule says “in extremis”) and know that death is imminent at the time the statement is made. Nadeem’s belief that he is going to be murdered in the near future does not satisfy this requirement for a dying declaration.
** Second, the exception is limited to statements about the “cause and circumstances” of the declarant’s death. Nadeem’s video does not include such statements.
** Additionally, under the federal rule, the exception applies only in a prosecution for homicide or in a civil case; under the New York rule, the exception applies only in a prosecution for homicide. (Admittedly, this criteria is sort of met in both cases, since Nadeem implicates Fisk in multiple murders; but the murders are just part of a criminal conspiracy Fisk is running)

* Marci Stahl convinces Foggy that he should run against Blake Tower as a write-in District Attorney candidate to bring Tower's inactivity in prosecuting Fisk to public light. Yet, while campaigning, Foggy still has enough time to investigate Fisk and be lawyer for Karen and for Matt at times. In real life, campaigning is a 24/7 job. Foggy wouldn’t have had time for anything else.[[note]]We can infer that Foggy wasn’t working for Hogarth's firm while he was a candidate, given that Marci tells him after Father Lantom’s funeral that the firm will be happy to have him back. This doesn’t necessarily mean he resigned. He might have just taken a leave of absence or even used his vacation days to campaign.[[/note]] In addition, while Foggy's intention was "make myself so public that I'm untouchable to Fisk," in real life, it would have exposed him way too much. Sure it does get to a point that Fisk tries to blackmail Foggy using leverage over his brother and parents, but realistically, Fisk would've gotten to him a lot sooner due to the amount of scrutiny Foggy would be under from the press. On top of that, there are so many other details of the story arc that are just incompatible with campaigning. For instance, Marci and Foggy probably would have had to get married ''immediately'' as soon as Foggy threw his hat in the ring. Also, if Foggy won, Marci would have no choice but to quit her job at Jeri Hogarth & Associates to avoid any potential conflicts of interest.
* In the antepenultimate episode of season 1, Karen shoots and kills James Wesley after he threatens her friends and family. When Karen tells Foggy about this in season 3, Foggy tells her it was self-defense... Not so fast. The New York jury instruction on the subject talks about defending yourself from someone who was using or was about to use deadly physical force against you. But Wesley wasn't using physical force on Karen, and he specifically told her he was not going to kill her now, that she wouldn’t be the first to die. Wesley then went on to threaten to kill Ben, Foggy, Matt, and her family at some future time, but he was not using or about to use physical force against them; the other threatened parties weren’t even present. This might make it difficult for Karen to argue defense of others.
** Another complicating factor is that Karen’s first shot may have disabled Wesley, but she emptied the clip, firing six more times. There's also a pause between the first shot and the last six. If Wesley was no longer a threat after the first shot, those additional shots (all of which look fatal by themselves) might not be considered justified by self-defense or defense of others. The first shot might have been justified, because she had been kidnapped and arguably fired the first shot to escape from her kidnapper. The other shots, not so much. Additionally, in season 3, Karen tells Foggy and Fisk that she wanted Wesley dead. She also tells Foggy she could have called the cops, once she got the gun; in other words, she didn’t have to shoot him (though one could argue that ''that'' wasn't an option since Fisk was paying off cops on the force, and they would've made sure Karen didn't walk out of the precinct alive). Fortunately, her statements to Foggy are privileged, and we can only hope that the microphones in Fisk’s penthouse did not pick up her statements to his face about killing Wesley.

** Matt’s closing argument is...unusual, to say the least. Matt briefly discusses the law and the evidence and argues the prosecution has not proved its case and, specifically, has failed to prove Healy was not acting in self-defense. This would be a fairly typical closing argument. But then he veers into the whole discussion of “good or evil” and morality, and the judgment Healy may face outside the courtroom. It is unclear what Matt is doing here, perhaps assuaging his Catholic conscience for defending someone he knows is a guilty-as-sin contract killer. At the same time, he is careful not to argue against his client, which would be unethical.

* Brett Mahoney ostensibly gets a promotion midway through season 2 for capturing Frank Castle, ostensibly going from "Sergeant" to "Detective sergeant," and transitioning from a uniform to plainclothes suit-and-tie. In the NYPD, that's not a promotion, but a lateral transfer - Brett's rank actually is still Sergeant, but he's now the supervisor to a squad of detectives in the Detective Bureau rather than a group of ten to twelve uniformed cops in the Patrol Bureau. This does slightly line up with the comics, where Brett is a Detective instead of a patrol officer. Also, the rank title isn't "Detective sergeant," but "Sergeant - Supervisor Detective Squad". In season 3, he's officially ranked as a Detective with a Detective's shield, which would be a ''demotion'' as Sergeant is a supervisory rank while Detective is the same rank as Patrol Officer.

* A justified example: in "World On Fire", Detectives Christian Blake and Carl Hoffman, two corrupt cops working for Fisk, shoot and kill a Russian thug in a precinct interrogation room for speaking Fisk's name. If it weren't for the fact that Fisk has the NYPD Internal Affairs Bureau in his pocket, Blake and Hoffman would have been placed on modified assignment and administrative leave while an investigation was conducted into their actions. Because of Fisk's connections, Blake and Hoffman remain on active-duty, allowing them to participate with the other corrupt cops to kill the survivors of Fisk's bombings of the Russians' hideouts. It's lampshaded by Ben Urich when he sees Blake and Hoffman assuming command of the scene where Matt has holed up with Vladimir and a police officer who stumbled upon them, and comments "Detectives! I'd thought IAB would have you riding a desk after that thing with the Russians at the station", which Blake tries to pass off as them being needed due to manpower shortages ("You see what's going on here? No one's riding a desk tonight") but Ben clearly doesn't buy it.
** On a sidenote, Blake and Hoffman giving orders at the standoff. NYPD Detectives are at the same level in the chain of command as regular Patrol Officers, and technically can't give orders to anyone but junior detectives. Only those in the supervisory ranks (Sergeant and upward) can give orders to other cops. Then again, they and many of the other cops in their precinct are on Fisk's payroll, so they probably know that they're breaking protocol.

** At the start of the trial, there's a long, dramatic sequence in which Frank is brought into the courtroom in chains and a prison jumpsuit. Then during the trial, he has heavily armed guards posted near him. These are two big mistakes on Nelson & Murdock's part, as letting Frank appear in front of the jury this way is conveying to them that he is so dangerous he has to be locked up and restrained even while he's in court. This would deprive him of any chance at a fair trial, and it is malpractice on Matt and Foggy's part to allow this to happen. Realistically, Nelson & Murdock would have gotten an order for Frank to be “dressed out” in street clothes for the entire duration of the trial, not just when he's on the stand testifying (in fact, this need for defendants to look presentable at trial is such a big deal that public defenders' offices often do clothing drives). And while it is permissible for a dangerous defendant to be shackled during trial, it has to be done in such a way that the shackles cannot be seen by the jury. The same is true for the guards; there might be extra security posted in the courtroom in a case like this, but it needs to be handled in a way that is not prejudicial to the defendant. Both of these matters are things that would have been addressed before the trial began.

* Nadeem’s sit-down with Tower in "[[Recap/Daredevil2015S3E12OneLastShot One Last Shot]]", after he takes on Nelson & Murdock as his attorneys, is known as a “proffer.” This would likely be the subject of lengthy negotiations and a written agreement, as would Nadeem’s cooperation afterwards, so what we see is largely condensed for the purposes of time. That same day, though, he gives testimony before a grand jury. In real life, Tower probably would not be having Nadeem testify right after the proffer is made, much less ask for Fisk to be indicted. Nadeem coming forward would just be the first step in a major investigation, and the indictment would be a long ways off.

** When the jury foreman reports they are unable to reach a verdict, Foggy whispers to Matt, “Allen charge,” and says the judge will send the jurors back to continue deliberating. “Allen charge” is shorthand for a jury instruction that is given when the jury reports a deadlock, and the judge sends them back to continue deliberating. New York uses a modified version of the “Allen charge.” Realistically, the judge wouldn’t immediately instruct them to continue deliberating. She would first question the jury foreman about whether she thinks further deliberations would help. She might also ask for the exactly numbers on how the jury is split (though without disclosing which number is for “guilty” and which is for “not guilty”). Depending on those responses, the judge would then decide whether to instruct the jury to continue deliberating. The judge might confer with counsel at sidebar before making their decision. The first time the jury reports a deadlock, it’s likely the judge would instruct them to continue deliberating. If, after further deliberating, the jury continues to be deadlocked, the judge would eventually declare a mistrial.

* Fisk is incarcerated at Riker's Island in season 2. However, that is a state correctional facility, and season 3 makes clear Fisk was convicted on five counts of RICO violations, which are ''federal'' charges.

** The seal behind the judge implies that the trial is in federal court. If that were the case, the prosecution would not be done by the District Attorney but by the United States Attorney. The seal also identifies this court as the "United States District Court for the District of New York City." There is no such court, the correct district in Manhattan would be the Southern District of New York.

** Somehow, Nelson & Murdock are able to get Colonel Schoonover as a character witness and not have his deposition. During her cross-examination, Reyes gets tripped up and embarrassed by an "actually I ''was'' there" trap. This doesn't happen in real life because all witnesses are deposed prior to trial so that neither defense nor prosecution are just playing a guessing game. It doesn't matter if Schoonover's name was redacted on classified mission reports. Deposition questions from Reyes would be like "what's the nature of your relationship to Frank Castle?", "Why do you endorse Frank Castle's character?", and "Were you there to personally witness the mission?", among others. This is simple stuff that non-attorneys should think, "there's no way that this happens in real life." You can't just plop a witness on the stand who hasn't been deposed.

** At the start of the trial, there's a long, dramatic sequence in which Frank is brought into the courtroom in chains and a prison jumpsuit. Then during the trial, he has heavily armed guards posted near him. These are two big mistakes on Nelson & Murdock's part, as letting Frank appear in front of the jury this way is conveying to them that he is so dangerous he has to be locked up and restrained even while he's in court. This would deprive him of any chance at a fair trial, and it is malpractice on Matt and Foggy's part to allow this to happen. Realistically, Nelson & Murdock would have gotten an order for Frank to be “dressed out” in street clothes for the entire duration of the trial, not just when he's on the stand testifying (in fact, this need for clients to look presentable at trial is such a big deal that public defenders' offices often do clothing drives). And while it is permissible for a dangerous defendant to be shackled during trial, it has to be done in such a way that the shackles cannot be seen by the jury. The same is true for the guards; there might be extra security posted in the courtroom in a case like this, but it needs to be handled in a way that is not prejudicial to the defendant. Both of these matters are things that would have been addressed before the trial began.

** The defense's opening statement is also problematic. Matt is supposed to be the one giving the defense's opening statement, but he's running late because he overslept. The ethical thing for Foggy to do at this point would be to defer the defense's opening statement, or at the very least call a short recess so he can track Matt down. The judge even asks Foggy if he wants to do so. Delaying the opening statement would've probably been the better call to make, seeing as Foggy’s opening statement doesn’t actually tell the jury what the defense theory of the case is or what the defense's evidence will show. And like in Healy's case, Foggy commits a major breach of courtroom etiquette by walking into the well of the courtroom and getting way too close to the jury box.

** It starts with Christopher Roth, the public defender who serves as Frank’s original lawyer. No self-respecting defense attorney would suck up to the District Attorney the way Roth does. In his scene at Nelson & Murdock, the he talks makes it seem as though he's working for Reyes instead of his client, especially when he tries to get Karen to sign a false statement that fits Reyes's theory of the case. He even talks enthusiastically about his own client getting the death penalty in Delaware. A comment he makes about having won a domestic violence case because it’s all about protecting women also makes no sense. He’s (supposedly) a defense lawyer, who would have been representing the accused ''abuser'', not the victim. While women can be abusers and rapists, the majority are men, and the majority of abuse victims are women. Finally, no court would ever appoint someone who had tried only one case to represent the defendant in a multiple murder case.

** While Matt is away helping Elektra infiltrate a gala, Foggy negotiates a plea deal for Frank. Foggy does a pretty fantastic job here, in negotiating 37 counts of murder down to one, even though such a negotiation would be very unlikely to happen in real life unless the prosecution's case ran into some major snags. But when taking the defendant’s plea after the deal has been struck, the judge (or in some cases, the prosecutor) goes over the terms of the deal to make sure that the defendant understands and agrees to them. The judge will also ask a series of questions to make sure the defendant is taking the deal willingly, and has not been coerced or been offered something improper in return. After this, the judge takes a waiver of the defendant's constitutional rights, then the defendant enters their plea (and in most states, the defendant has to sign a written form that outlines the terms of the deal and the defendant’s agreement to it). None of these things happen in Frank's arraignment, and, of course, he reneges on the deal by pleading “not guilty.”

* The botched sting using Grotto as bait for the Punisher. Reyes appears to give orders to the ESU to shoot to kill when they open fire on the Punisher, while the Punisher is busy fighting with Matt. The goal of the ambush is to kill Frank Castle, not arrest him. This is a blatantly illegal attempted extrajudicial killing. The circumstances under which the police are allowed to use lethal force do not include “because he did some bad stuff before.” While defense of others (Grotto) could be used as a justification, the police opened fire before that was established. Furthermore, Reyes is the one calling all the shots here. In real life, the police department and the prosecution are separate entities, explicitly for this reason.

** It starts with Frank Castle’s original lawyer. No self-respecting defense attorney would suck up to the District Attorney the way Christopher Roth does. He talks as if he's working for Reyes instead of his client, and wants Karen to sign a false statement that fit the DA’s theory of the case. He also talks enthusiastically about his own client getting the death penalty in Delaware. His comment about having won a domestic violence case because it’s all about protecting women also makes no sense. He’s (supposedly) a defense lawyer, who would have been representing the accused ''abuser'', not the victim. While women can be abusers and rapists, the majority are men, and the majority of abuse victims are women. Finally, no court would ever appoint someone who had tried only one case to represent the defendant in a multiple murder case.
** Matt, Foggy, and Karen go to see Frank in the hospital, and ethically are skating on thin ice. As [[VillainHasAPoint Reyes correctly points out]], Frank is already represented by counsel, and it is unethical for Matt and Foggy to talk to him about the case without the knowledge and permission of his attorney of record. They may also have violated an ethical rule against in-person solicitation, when they ask Frank to hire them as his attorneys (although they could argue that they technically hadn't violated this rule because they were offering to take the case pro bono, very few people would've bought it).
** The process of taking Frank’s plea is all wrong. This is a negotiated plea deal, and admittedly, Foggy does a fantastic job, negotiating 37 counts of murder down to one, even though such a negotiation would be very unlikely to happen in real life unless the prosecution had major problems with its case. But when taking the defendant’s plea after a deal has been struck, the judge (or prosecutor, in some places) goes over the terms of the deal and makes sure the defendant understands and agrees to them. The judge will also ask a series of questions to make sure the defendant hasn’t been coerced or been offered something improper for taking the deal. The judge then takes a waiver of constitutional rights. Then the defendant enters his plea. In most states, there's also a written form that the defendant signs that outlines the terms of the deal and the defendant’s agreement to it. None of these things happen in Frank's arraignment, and, of course, he reneges on the deal by pleading “not guilty.”
** The trial is set to start literally a week after Frank is arraigned. The timeline is totally unrealistic. In real life, following the arraignment and assuming Frank waived grand jury proceedings, a complex trial like this would be preceded by several months of pre-trial discovery, depositions, motions, and hearings, mostly to establish what kind of evidence could be presented to the jury. This is especially important in cases like this one that are going to rely heavily on expert testimony. Corrupt or not, Reyes wouldn’t want to rush this, either. And even if they did, it would be extremely unusual (and likely appealable) for the judge not to grant the defense an extension of time before the trial started. [[note]] For a real life comparison to show how even open-and-shut cases can take a long time, the Aurora, Colorado theater shooter James Holmes was arrested on July 20, 2012, the day of his crimes. His attorneys didn't even start discussing plea deals with the district attorney until March 27, 2013 -- more than eight months later, and his actual trial didn't start until two years later, and due to how high-profile a case he was, the process of jury selection took three months.[[/note]] The judge also stated that she would set the trial date in consultation with the DA. This would be an improper ''ex parte'' communication with one side only; with only a few exceptions, the judge has to conduct all proceedings in a case in the presence of both parties and their attorneys.
** It's also here that the writers get the terminology wrong. When Foggy tells Matt about the trial date, Matt says they’ll “motion for an extension.” In this context, “motion” is not a verb. A postponement of a trial is called a “continuance.” A lawyer would say, “We’ll move for a continuance”, “We’ll ask for a continuance” or “We’ll file a motion for a continuance.”
** But then, when Matt says they’ll get an extension, Foggy tells him Frank agreed to the trial date. It doesn’t matter that Frank agreed. His desire to go to trial immediately and his right to a speedy trial do not override his right to the “effective assistance of counsel” as guaranteed by the Sixth Amendment to the U.S. Constitution. Matt and Foggy should have been able to get a continuance by arguing they can’t possibly provide effective assistance of counsel with only a week to prepare.
** The insanity defense. When Matt and Foggy are discussing possible defenses, they mention the archaic M’Naghten Rule, a definition of insanity which says a person is insane if they're unable to tell right from wrong, and/or can't comprehend the consequences of their actions. It's used in some states, but not in New York State. Foggy also talks about the need to “lock” a defense, a term that probably no lawyer has ever used ever.

** Karen's one on one scenes with Frank are a bit problematic. Since she’s an employee of the law firm, her conversations with Frank would be covered by the attorney-client privilege, but it’s just wrong that she would interview him alone. Matt and Foggy are the lawyers trying the case; they need to speak directly with their client, not through their secretary. Karen might have the smarts to dig up dirt on Fisk and on Frank's background, but she doesn’t have the legal training or knowledge to recognize the legal significance of what Frank is telling her or to know what follow-up questions to ask. Yes, Frank insists on talking to Karen alone, but Matt and Foggy should have refused to allow it. It’s called “client control,” something that (admittedly) would be very difficult with a client like Frank Castle.
** During jury selection, the prospective jurors are shown expressing strong opinions about Frank. They should have been questioned separately about this, so as to avoid tainting the rest of the panel. It appears that Frank wasn’t in the courtroom for jury selection. The defendant has a right to be present during jury selection, unless he waives that right. The judge should not have bullied counsel into accepting the jury.
** The seal behind the judge implies that the trial is in federal court. If it were in federal court, the prosecution would not be done by the District Attorney but by the United States Attorney. The seal also identifies this court as the "United States District Court for the District of New York City." There is no such court, the correct district in Manhattan would be the Southern District of New York.
** There's a long, dramatic sequence where Frank is brought into the courtroom in chains and a prison jumpsuit. Any lawyer will tell you that this is a big no-no. Allowing Frank to appear in front of the jury in the orange jumpsuit and visible shackles sends a message to the jury that he is so dangerous he has to be locked up and restrained, even when in the courtroom. This deprives him of a fair trial. It is malpractice on the part of Matt and Foggy to allow this to happen. They should have gotten an order for Frank to be “dressed out” in street clothes for ''the whole trial'', not just when he testified (this is such a big deal that public defenders' offices do clothing drives just so their defendants can look presentable). While it is permissible for a dangerous defendant to be shackled during trial, it has to be done in such a way that the jury doesn’t see the shackles.
*** Same is true of the heavily armed guards standing near Frank. Their presence also tells the jury that he’s dangerous. With a dangerous defendant like Frank, there may be extra security in the courtroom, but it has to be done in a way that is not prejudicial to the defendant. In a real trial, all of these issues would have been addressed before the trial began.
** Both the prosecution and defense opening statements are awful. First up, DA Reyes’s opening statement is argumentative. It is more like a final argument than an opening statement, which is supposed to summarize, in a ''non-argumentative manner'', the evidence and witnesses that the jury will be shown during the trial. It was objectionable on this basis, but Foggy did not object. However, whether to object during opening is a judgment call on the part of counsel. After this, it's the defense's turn. Matt is supposed to be the one giving the defense's opening statement, but he's running late because he overslept. The ethical thing for Foggy to do at this point would be to defer the defense's opening statement until the beginning of the defense case, or at the very least, call a short recess so he can track Matt down. The judge even asks if he wants to do so. Delaying the opening statement would've been the better call to make, because Foggy’s opening is not great. He doesn’t actually tell the jury what the defense theory of the case is or what the defense evidence will show.
*** And during their speeches, both Reyes and Foggy walk into the well of the courtroom and get way too close to the jury box, which is a serious breach of courtroom etiquette.
** Matt and Karen going over strategy for Dr. Gregory Tepper. "Who doctored those certificates? And if he says 'no one' then we already got him admitting they were doctored!" Uh, Matt, Karen, you ''do'' realize that's gonna be shouted down by Reyes as "Objection. Assumes facts not entered into evidence," right? As in assuming the "fact" that the certificates were doctored at all. You have to lay a foundation first, i.e. Establish and enter it as evidence by asking all sorts of boring questions leading to "were the reports in any way doctored?" You don't get to say "so, who doctored them?" That's assuming something not yet in evidence. It's like asking a murder suspect "so, when you killed the victim, did you do it with a candlestick or a bat?"
** Reyes’s “leading” objection to Matt’s questions for Dr. Gregory Tepper is ridiculous. It’s cross-examination, Reyes. Leading questions are allowed.
** When Tepper says he has to say something (which is that Elektra threatened him), the judge properly sends the jury out of the courtroom. However, Frank should not have been removed from the courtroom; he has a right to be there. And it probably was not necessary to also remove the spectators from the courtroom. After Tepper has his say, Foggy correctly moves for a mistrial, which should have been granted. Striking Tepper’s testimony is not the proper action in these circumstances. He is a critical witness for both sides. Arguably, the prosecution can’t prove its case without his testimony. It’s also unfair to the defense, which has not had the opportunity to cross-examine him. Even though the jurors will be instructed to disregard Tepper’s testimony, it's very difficult to “unring the bell,” so to speak.
** And there is the issue of whether Tepper altering the medical records on Frank's family is relevant to the case at hand. In federal courts and many states like New York, a witness’s veracity for truthfulness is relevant. Even if Elektra hadn't threatened him, Dr. Tepper's altering medical records would discredit his testimony, which could be introduced on cross-examination. Confronting Dr. Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Frank’s case. However, as the medical records would have been collateral, the judge would have limited questioning to avoid confusing the jury with facts not material to Frank’s case.
** Expert witnesses, such as the doctor who testified regarding Frank’s brain injuries, are allowed to give their expert opinion regarding facts (e.g. Frank suffered a brain injury that affects his judgement) but not legal conclusions (e.g “any infractions would be considered crimes of passion”). Drawing a legal conclusion from the facts (e.g. whether Frank was legally insane) is the job of the judge or jury, not the witness. Also, "crimes of passion” really only applies to converting murder to manslaughter, which is still a serious crime, and murder is not the only crime that Frank Castle has committed onscreen (false imprisonment, torture, etc).
** There is a legal concept called “extreme emotional disturbance” (EED) in New York law. It’s called an affirmative defense but is more accurately described as a mitigating factor. If the jury finds the defendant was acting under the influence of EED, this reduces a killing from murder to a lesser form of criminal homicide, manslaughter. [[http://www.nycourts.gov/judges/cji/2-PenalLaw/125/AC.125.EED.pdf Here is a link to a jury instruction on this kind of defense]]. Arguing EED appears to be the defense strategy Foggy eventually comes up with (sometime after the opening statement). In the Castle case, it’s something of a double-edged sword. If Foggy can convince the jury that Frank Castle was acting under the influence of EED, then his murders are manslaughter, not murder. However, the cause of the EED is the murders of his family, which provides a hell of a motive for murdering those responsible. Motive is not an element of the crimes, but jurors generally like to be given a motive, so this would help the prosecution. Whether the defendant was suffering from and acting under the influence of EED is an ultimate issue in the case, to be decided by the jury. For this reason, it was improper for Foggy to ask the defense expert whether Frank met the definition of EED. Reyes objected to the question as calling for a conclusion. Reyes was right to object, but she made the wrong objection. An expert witness is allowed to give his opinions and conclusions; that’s what expert witnesses do. But the witness is not allowed to invade the province of the jury and give an opinion on an ultimate issue like this. Reyes should have objected on this ground. Since she didn’t, the judge properly overruled the objection she did make.
** One of the more egregious things is that what is shown of the trial on-camera ''isn't even about the crimes that Frank had committed''. Everyone acts as if what had happened to Frank’s family is far more relevant to the current case than it should have been. Having a trial about what kind of man he was when his character wasn’t on trial was just weird. His sanity maybe, but the evidence against him was staggering.
** Somehow, Nelson & Murdock are able to get Colonel Schoonover as a character witness and not have his deposition. Reyes gets tripped up and embarrassed by the "actually I ''was'' there" trap. This doesn't happen in real life because all witnesses are deposed prior to trial so that neither defense nor prosecution are just playing a guessing game. It doesn't matter if Schoonover's name was redacted on classified mission reports. Deposition questions from Reyes would be like "what's the nature of your relationship to Frank Castle?" "Why do you endorse Frank Castle's character?" "Were you there to personally witness the mission?" Etc etc. This is simple stuff that non-attorneys should think, "there's no way that this happens in real life." You can't just plop a witness on the stand who hasn't been deposed.
** Foggy sends Karen to talk Frank into testifying on the stand. This is wrong on so many levels. It is generally a bad idea for a criminal defendant to testify in his own defense, especially if he is a loose cannon like Frank Castle. It opens the door to uncomfortable questions from the prosecution, and there is rarely much the defendant can say that will help rather than hurt their case. That being said, the decision whether to testify is the client’s, not the lawyer’s. A lawyer should not talk the client into testifying. They can advise the client, and point out the pros and cons of each course of action, but the client decides. Regardless of her relationship and rapport with Frank, Karen is not the person to do this. She is just a secretary, not a lawyer. She does not have the legal knowledge and experience to advise Frank properly.
** When Frank takes the stand, a young man in the gallery begins yelling about how Frank killed his father. The judge properly orders him removed from the courtroom. However, the judge does nothing about the spectators waving signs in the courtroom decrying Frank as a vicious murderer who should be burned at the stake (and, if you look closely, at least one sign reading "Free Frank"). Those spectators and their signs should also have been removed, as such signs are '''not allowed in a courtroom'''. Spectators are not even allowed to wear ribbons or pins commemorating the alleged victims. In real life, these people would probably not have been allowed through security with their signs either. When it becomes apparent that the judge isn’t taking action, Foggy should have objected to the presence of the sign-waving spectators and asked for them to be removed; this should have been done at a sidebar, out of the hearing of the jurors. This might have been another time to move for a mistrial.
** Matt’s “direct examination” of Castle. You don’t have to be a lawyer to recognize how wrong this was. After a few questions, Matt asks the judge for permission to treat Frank as hostile, then totally abandons any pretense of questioning Frank and argues the case to the jury, like he was giving a closing speech. Even worse, ''no one does anything about it''. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting vehemently, and the judge would've ruled "Sustained. Mr. Murdock, you are questioning the defendant. Save your speech for your closing argument." In this situation, the judge might have intervened even if the prosecutors didn’t object. Most judges will “let the lawyers try their case,” but what Matt did is so extreme that the judge might have taken action without an objection.
** Frank’s outburst. When Frank asked the judge if he could say something, she should have said “no.” If she allowed him to speak, she should have stopped him and had him removed from the courtroom much sooner.
** Sentencing for Frank after he got himself convicted would take several weeks of more hearings, although one could assume Fisk was pulling strings to get Frank to him before the sentencing could send him to another prison.

* In season 3, when Fisk has the FBI go after Matt's friends, Karen asks Foggy to be her attorney as she fears that Nadeem will find out she killed Wesley and either send her to jail or have her killed. Foggy says, “OK, give me five bucks," which she gives him. This is a common trope in TV, movies, and literature, but it is not necessary for money to change hands in order for the privilege to apply. Matt’s ''pro bono'' clients don’t pay him, but they still have the privilege. As long as Karen is speaking confidentially to Foggy in his capacity as her attorney, the conversation is privileged. Foggy should know this. All he needed to say was, “OK, I’m your lawyer.”
* In "[[{{Recap/Daredevil2015S3E13ANewNapkin}} A New Napkin]]", Foggy sketches a doodle for the trio's new firm on a napkin, calling it Nelson Murdock & Page. Thing is, Karen is not a lawyer, and in New York, it's actually a violation of ethics for a non-lawyer to have a partnership stake in a law firm.
* [[https://www.escapistmagazine.com/v2/2018/12/20/making-at-deal-with-daredevils-kingpin/ The circumstances behind Wilson Fisk's release from prison in season 3 are semi-plausible but there are some liberties.]]
** One example being that the sort of deal Fisk makes (information on the Albanians in exchange for charges against Vanessa being dropped) would more likely be made with the DOJ or the U.S. Attorneys’ office, not with the FBI. Decisions to charge or not to charge lie with prosecutors, not investigators.
** Rule 35 of the Federal Rules of Criminal Procedure allows the government to request a post-conviction reduction in sentence for a defendant/inmate who has provided “substantial assistance.” It does not mention any other types of benefits that such a person might receive. And benefits like those received by Fisk are the kind that prosecutors are allowed to give to cooperating witnesses, for example, the return of forfeited property or an agreement not to prosecute someone close to him (in this case, Vanessa). In practice, Ben Donovan negotiated a very, very good “cooperating witness” deal with the FBI. It is realistic that Fisk would be removed from the prison where he’d been shanked ([[FalseFlagOperation by an inmate he'd paid off]], as it turns out), but moving him to the penthouse under house arrest is out of the ordinary. The normal move would be to transfer him to another prison or to some kind of protective custody. The fact that so many of the FBI officials involved are on Fisk's payroll explains away why any red flags that should've come up got ignored.
** Fisk is an inmate in a federal prison. When he is moved to the penthouse under house arrest, he is still being treated as a federal inmate (at first, anyway). In real life, his guards probably would have been from the Federal Bureau of Prisons, not the FBI. But it’s a TV show, so they’re FBI agents.
** There is a lot of confusion about state vs. federal jurisdiction throughout season 3. The early episodes establish that Fisk was prosecuted under the federal racketeering statute known as RICO, and is in federal custody. Yet when Nadeem proposes moving Fisk to house arrest, he and Hattley meet with District Attorney Blake Tower and the NYPD Commissioner. As local law enforcement officials, they wouldn’t be involved in the change in the status of a federal inmate. This could just be a courtesy meeting simply to inform Tower and the NYPD of what the FBI was doing, seeing how high-profile Fisk is (Fisk was bribing cops and even had a few of them killed). but Hattley and Nadeem seem to be seeking their approval for Fisk to be moved.\\
Then, in later episodes, Tower insists that Fisk is “solely” under federal jurisdiction. Thing is, Fisk committed crimes before and after his prison time that he could be prosecuted for under state law. Double jeopardy would prevent Tower from prosecuting Fisk under state law for anything encompassed by the RICO prosecution, but Fisk could have been prosecuted under state law for the murders of Detective Blake and all the other cops that were killed on his orders, among other crimes. Foggy seems to be the only one who understands this. In real life, the feds might very well have deferred to Reyes (as she was the District Attorney at the time of Fisk's original arrest) and she would prosecute Fisk for the more serious crimes like murder first, before letting the Feds take their turn.
* Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like a general visitation room, with many other people present. An attorney-client prison visit would take place in a private room, where they can speak confidentially, without being overheard. However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn’t have happened if they had met privately. There is, however, a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. Most of the time, appellate defense lawyers are unable to get a client’s conviction reversed, but they can obtain some other benefit for the client, such as getting him a reduced sentence.
* The FBI's search of Matt’s apartment is problematic. We can give Ray Nadeem the benefit of the doubt and assume he got a search warrant before breaking down the door to Matt’s apartment. He clearly did some investigation beforehand, because he has Wesley's Confederated Global check from the Healy case in season 1 and the photo of Wesley that he shows to Karen when she’s brought to the apartment. But he should have been way more skeptical and questioned why Fisk was targeting one of the lawyers who helped send him to prison.\\
What makes the search problematic is that at this point in time, Matt's apartment isn't just his home, it’s also his law office, as we saw him working on the Aaron James case here in ''Series/{{The Defenders|2017}}''. During the search of the apartment, the FBI agents appear to search his desk and the surrounding area. They know Matt is a lawyer, and once they determined that his office is in the apartment, they should have taken the appropriate steps to ensure that the attorney-client privilege is preserved. Fortunately, it’s likely that at least most of the documents in Matt’s files are in Braille, which the FBI agents probably can’t read anyway.
* When Nadeem crashes Foggy’s campaign event, he tries to get Foggy to snitch on Matt by saying (among other things) that he and Karen are accessories to Matt’s crimes or, if they’re lucky, merely aiders and abetters. His statement implies that being an accessory is more culpable than being an aider and abetter, when it's not. Under the federal criminal statutes defining parties to a crime, statutes that Nadeem should be familiar with, an “accessory” is an accessory after the fact, someone who assists the perpetrator of a crime after its commission. An aider and abetter is someone who assists, induces or otherwise participates in the commission of the crime. An aider and abetter receives the same punishment as the principal (the actual perpetrator). The punishment for an accessory after the fact is one-half the punishment for the principal. So Nadeem got it backwards.
* Matt and Nadeem do an illegal search of Dex's apartment looking for evidence tying him to the ''Bulletin'' attack, like the Daredevil suit that Melvin built for Dex. Before they break in, Nadeem explains his plan to circumvent the requirement for a search warrant by leaving any evidence they find in place, then setting off the fire alarm on the way out. Matt agrees to it, but he should have known better. Under the “exigent circumstances” exception to search warrant requirements, police are allowed to enter a burning building to search for and rescue people and attempt to put out the fire (not that they should, since they don't have proper firefighting gear). However, the scope of such a search is limited by the nature of the emergency that justifies the warrantless entry. In the case of a fire, they can search for people in the burning building to the best of their ability. They can also see whatever is in “plain view” (well, Ray can, in this case). This exception does not give them carte blanche to conduct a full search for evidence of criminal activity. For that, a search warrant is still required. And if it was discovered that Matt and Nadeem set off a false fire alarm to circumvent the search warrant requirement, any evidence they found would be suppressed. All things considered, it’s a good thing they didn’t carry out this plan.
* The reversal of Fisk’s conviction on appeal has some liberties going on. The court mentioned by Donovan in his press conference statement is the right court; the U.S. Court of Appeals for the Second Circuit is the appellate court that would have heard Fisk’s appeal. And the timeline mostly lines up: season 3 takes place about two years after Fisk’s arrest at the end of season 1. This is probably the minimum amount of time needed for his case to make its way through the trial and appellate courts. A case like this could easily take even longer. At the end of season 1, Foggy states correctly that it will take at least a year to bring Fisk to trial. Then there's the reversal itself. Contrary to popular belief, appellate courts do not go looking for reasons to reverse criminal convictions. The majority of criminal convictions are affirmed (upheld) on appeal. In his statement about the reversal, Donovan does not mention the grounds for the reversal, so we don’t know for sure whether it was legit. Of course, there’s a good chance it wasn’t, because this is [[ScrewTheRulesIHaveConnections Wilson Fisk]] we're talking about. The government’s decision not to re-try Fisk is interesting. With a few exceptions (for example, when a conviction is reversed for tainted or insufficient evidence), a criminal defendant can be re-tried after a reversal on appeal. The only thing Donovan says about the decision not to re-try Fisk is that the government has seen the error of its ways, or words to that effect. Again, it’s [[ManipulativeBastard Fisk]], so it’s entirely possible the fix was in.
* Nadeem’s sit-down with Tower in season 3 episode 12, after he takes on Nelson & Murdock as his attorneys, is known as a “proffer.” This would likely be the subject of lengthy negotiations and a written agreement, as would Nadeem’s cooperation after the proffer, so what we see is largely condensed for the purposes of time. That same day, though, he gives testimony before a grand jury. In real life, Tower probably wouldn’t have Nadeem testify right after the proffer is made, much less ask for an indictment of Fisk. Nadeem coming forward would just be the first step in a major investigation.
* The "dying declaration" exemption. Foggy correctly states there is an exception to the hearsay rule for a dying declaration. His explanation of the rationale for the exception is also basically correct: someone who is about to meet their maker is less likely to lie. However, the video confession Nadeem recorded of himself before his death does not qualify as a dying declaration under either the federal or New York rules, which are similar.

** Second, the exception is limited to statements about the “cause and circumstances” of the declarant’s death. Nadeem’s video does not include such statements and therefore does not satisfy this requirement.
** Additionally, under the federal rule, the exception applies only in a prosecution for homicide or in a civil case; under the New York rule, the exception applies only in a prosecution for homicide. (Admittedly, that criteria is sort of met in both cases, since Nadeem implicates Fisk in multiple murders; but Fisk is guilty of more than just murder)

* Marci Stahl convinces Foggy that he should run against Blake Tower as a write-in District Attorney candidate to bring Tower's inactivity in prosecuting Fisk to public light. Yet, while campaigning, Foggy still has enough time to investigate Fisk and be lawyer for Karen and for Matt at times. In real life, campaigning is a 24/7 job. Foggy wouldn’t have had time for anything else.[[note]]We can infer that Foggy wasn’t working for Hogarth's firm while he was a candidate, because Marci tells him after Father Lantom’s funeral that the firm will be happy to have him back. This doesn’t necessarily mean he resigned. He might have just taken a leave of absence or even used his vacation days to campaign.[[/note]] In addition, while Foggy's intention was "make myself so public that I'm untouchable to Fisk," in real life, it would have exposed him way too much. Sure it does get to a point that Fisk tries to blackmail Foggy using leverage over his brother and parents, but realistically, Fisk would've gotten to him a lot sooner due to the amount of scrutiny Foggy would be under from the press. On top of that, there are so many other details of the story arc that are just incompatible with campaigning. For instance, Marci and Foggy probably would have had to get married ''immediately'' as soon as Foggy threw his hat in the ring. Also, if Foggy won, Marci would have no choice but to quit her job at Jeri Hogarth & Associates to avoid any potential conflicts of interest.

** Another complicating factor is that Karen’s first shot may have disabled Wesley, but she emptied the clip, firing six more times. There's also a pause between the first shot and the last six. If Wesley was no longer a threat after the first shot, those additional shots (all of which look fatal by themselves) might not be considered justified by self-defense or defense of others. The first shot might have been justified, because she had been kidnapped and arguably fired the first shot to escape from her kidnapper. The other shots, not so much. Additionally, in season 3, Karen tells Foggy and Fisk that she wanted Wesley dead. She also tells Foggy she could have called the cops, once she got the gun; in other words, she didn’t have to shoot him (though one could argue that ''that'' wasn't an option since Fisk was paying off cops on the force, and they would've made sure Karen didn't walk out of the precinct alive). Fortunately, her statements to Foggy are privileged, and we can only hope the microphones in Fisk’s penthouse didn’t pick up her statements to his face about killing Wesley.

* Matt and Foggy aren't the best when it comes to running afoul of rules regarding client solicitation. In fact, when it comes to representing Karen in the very first episode of season 1, certainly Foggy should've gotten in trouble since he was at the time motivated by pecuniary gain. He almost walked out of the interrogation room when Karen said she could not pay. (Matt wouldn't be in trouble since whilst he was initially motivated by the potential for a paying client, he agreed to represent Karen for free when he realized, from listening to her heartbeat, that she was telling the truth and she was innocent).

** As students at or near the top of their class at an Ivy League law school, Matt and Foggy likely would not have been interns working out of a storage room. Big firms like Landman & Zack recruit students like them and bring them on as “summer associates” after their second year in law school. Some firms might not recruit Matt because of his blindness (not that they’d admit it), but he still would have had opportunities. It's possible they could have been interns before or after being summer associates, especially if it was a paid internship and they needed the money (they had to have some money lying around to get Nelson & Murdock up and running).
** The shot of [[ArmyOfLawyers eleven L&Z lawyers (plus Matt and Foggy) on one side of the table, across from the poor plaintiff and his lawyer]], seems very unlikely. It's meant to be an exaggerated stereotype of big firm lawyering, but maybe not that exaggerated. Of course, the point of this flashback isn’t legal accuracy; it’s to show that L&Z is not on the side of the little guy and how soul-crushing it would be for Matt to work there. And Foggy, too, even if he is more interested than Matt in making money.

** While Matt goes to the 15th precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyers at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case there. This is Marci’s way of belittling Foggy and the case, to make clear "it’s not important enough for us to go up to my office to discuss it." Such a conversation really should not take place in a public space like the lobby where there's no privacy. Also, Foggy gets it wrong in his TheReasonYouSuckSpeech to Marci at the end of the discussion. He tells Marci it’s her job to convince his client to take Landman & Zack's offer. Actually, Marci's job is to make the case to Foggy as to why his client should take Landman & Zack's offer. It’s then Foggy's job to talk to his client and advise Elena whether or not to take it.
** When Mrs. Cardenas first goes to Nelson & Murdock for a client consultation, Foggy says they will try to negotiate a better deal for her. This is the right approach. But later on, after Wilson Fisk takes over Tully's properties, Elena reports that Fisk has doubled Tully’s offer, and Foggy inexplicably changes his mind and agrees she should not accept it. Matt tells Foggy he shouldn’t have done that, and Matt is seemingly proven right as Fisk subsequently has Elena killed as bait to lure Matt into an ambush by Nobu. But actually, Matt is right for a different reason: they're in no position to prevent Fisk from carrying out his plans for the building. Under these circumstances, Foggy and Matt’s job is to negotiate with Fisk's lawyers to get the best possible deal for their client. They needed to sit down with Mrs. Cardenas and give her the "come to jesus", where they explain the harsh realities of litigation. Whether or not this would've prevented Fisk from having her killed and he would've simply found someone else to kill as bait for Matt, is another question entirely.

* The trial of Fisk's assassin John Healy in "Rabbit in a Snowstorm":

** Healy wants to waive all discovery and go directly to trial. The writers seem to have confused discovery in a criminal case with discovery in a civil case. Discovery in a civil case is very time-consuming. Under the New York law governing discovery in criminal cases that were in effect in 2014 when season 1 was filmed, defense discovery basically consisted of a written demand to view the prosecution’s evidence before trial. There were no time-consuming discovery procedures such as depositions or written interrogatories. So there doesn’t seem to be a good reason to waive discovery, even if Healy wants to go to trial quickly. It’s never a great idea to go to trial without knowing what the evidence is against your client, as you kinda ''need'' the evidence to formulate your defense strategy. Healy may want to go to trial quickly, but he doesn’t necessarily have the last word on the subject. If Matt and Foggy need time to prepare the case, they’re probably going to get it, no matter what Healy wants. Healy may have prevailed on this point, however. The case appears to have been brought to trial very quickly (and we can imagine Fisk was pulling strings here).
** Matt tells Healy he’ll need to testify. Like will happen in Frank Castle's trial in season 2, whether to testify is the client’s call, not the lawyer’s.
** The judge pre-instructs the jury at the beginning of the trial. This is standard procedure. However, in this case, we hear the judge saying something about being unable to reach a verdict. This would not be mentioned at the beginning of the case. At that stage, the judge wouldn’t want the jury even to think about failing to reach a verdict.
** Foggy’s opening statement. An opening statement is supposed to be a non-argumentative discussion of what the evidence will show. In his opening statement, Foggy is basically arguing the case. He also turns and points dramatically at the prosecutors during his opening, a rookie move if ever there was one. He is also in the well of the courtroom, approaching way too close to the jury box. At one point, he even jabs a finger on the top of the partition surrounding the jury box. All of these are breaches of courtroom etiquette.
** Matt’s closing argument is...unusual, to say the least. Matt briefly discusses the law and the evidence and argues the prosecution has not proved its case and, specifically, has failed to prove Healy wasn’t acting in self-defense. This would be a fairly typical closing argument. But then he veers into the whole discussion of “good or evil” and morality, and the judgment Healy may face outside the courtroom. Hard to say what he’s doing here, perhaps assuaging his Catholic conscience for defending someone he knows is a guilty-as-sin contract killer. At the same time, he is careful not to argue against his client, which would be unethical.
** The hung jury. When the jury foreman reports they are unable to reach a verdict, Foggy whispers to Matt, “Allen charge,” and says the judge will send the jurors back to continue deliberating. “Allen charge” is shorthand for a jury instruction given when the jury reports a deadlock and the judge sends them back for further deliberations. New York uses a modified version of the “Allen charge.” In a real trial, the judge wouldn’t immediately instruct them to continue deliberating. First, she would question the jury foreman about whether she thinks further deliberations would help. She might also ask for the numbers on how the jury is split (without disclosing which number is for “guilty” and which is for “not guilty”). Depending on those responses, the judge would decide whether to instruct the jury to continue deliberating. The judge might confer with counsel at sidebar before making a decision. The first time the jury reports a deadlock, it’s likely the judge would instruct them to continue deliberating. If they remain deadlocked, the judge would eventually declare a mistrial.
** The decision not to re-try Healy after the hung jury. We don’t see all of the proceedings, but at some point, the judge must have decided the jury was hopelessly deadlocked, and she declared a mistrial. Healy seems quite confident he would not be re-tried, so Fisk must have gotten to the prosecutors. On the other hand, there are legitimate reasons for not re-trying a case after a hung jury. We don’t know for sure what happened in this case.
* A justified example: in "[[Recap/Daredevil2015S1E5WorldOnFire World On Fire]]", Detectives Christian Blake and Carl Hoffman, two corrupt cops working for Fisk, shoot and kill a Russian thug in a precinct interrogation room for speaking Fisk's name. If it weren't for the fact that Fisk has the NYPD Internal Affairs Bureau in his pocket, Blake and Hoffman would have been placed on modified assignment and administrative leave while an investigation was conducted into their actions. Because of Fisk's connections, Blake and Hoffman remain on active-duty, allowing them to participate with the other corrupt cops to kill the survivors of Fisk's bombings of the Russians' hideouts. It's lampshaded by Ben Urich when he sees Blake and Hoffman assuming command of the scene where Matt has holed up with Vladimir and a police officer who stumbled upon them, and comments "Detectives! I'd thought IAB would have you riding a desk after that thing with the Russians at the station", which Blake tries to pass off as them being needed due to manpower shortages ("You see what's going on here? No one's riding a desk tonight") but Ben clearly doesn't buy it.

* In the season 1 finale, Nelson & Murdock gets a big break that allows them to locate a crucial witness against Fisk when Foggy's ex-girlfriend Marci Stahl, a lawyer at Landman & Zack, turns over files pertaining to work that firm has done for Fisk. Marci tells Foggy he’s asking her to commit “career suicide.” And she is at least partly correct. If she were caught copying a client’s files and giving them to someone to use against the client, she surely would be fired from her job, and if the reason became known, her prospects for future employment would not be great. At the same time, there is the [[https://href.li/?http://thelegalgeeks.com/2015/04/13/a-daredevil-of-attorney-ethics-over-the-crime-fraud-exception/ crime-fraud exception]]; lawyers have an obligation not to participate in crimes and to tell the police if they have reason to believe their client is engaged in/about to engage in criminal activity. Landman & Zack has failed in both obligations (by not reporting that they are doing legal business for Wilson Fisk and not reporting his crimes to the cops), and it's Marci's responsibility, legally, ethically, and professionally, to hand over all the information she can to the proper authorities. That she handed that information over to the lawyers on the opposing counsel (one of whom she used to have a romantic relationship with) is ''very'' questionable, but the New York Bar Association probably gave her a free pass given how extensive Fisk's corruption of the legal system went.

** While Matt goes to the 15th precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyeres at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case there. This is Marci’s way of belittling Foggy and the case, to make clear "it’s not important enough for us to go up to my office to discuss it." Such a conversation really should not take place in a public space like the lobby where there's no privacy. Also, Foggy gets it wrong in his saber-rattling speech to Marci at the end of the discussion. He tells Marci it’s her job to convince his client to take Landman & Zack's offer. Actually, Marci's job is to make the case to Foggy as to why his client should take Landman & Zack's offer. It’s then Foggy's job to talk to his client and advise Elena whether or not to take it.

** While Matt goes to the 15th precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyeres at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case there. This is Marci’s way of belittling Foggy and the case, to make clear "it’s not important enough for us to go up to my office to discuss it." Such a conversation really should not take place in a public space like the lobby. Foggy’s saber-rattling speech to Marci at the end of the discussion is also off. He tells Marci it’s her job to convince his client to take Landman & Zack's offer. Actually, Marci's job is to make the case to Foggy as to why his client should take Landman & Zack's offer. It’s then Foggy's job to talk to his client and advise Elena whether to take it.

** When Tepper says he has to say something (which is that Elektra threatened him), the judge properly sends the jury out of the courtroom. However, Frank should not have been removed from the courtroom; he has a right to be there. And it probably was not necessary to also remove the spectators from the courtroom. After Tepper has his say, Foggy correctly moves for a mistrial, which should have been granted. Striking Tepper’s testimony is not the proper action in these circumstances. He is a critical witness for both sides. Arguably, the prosecution can’t prove its case without his testimony. It’s also unfair to the defense, which has not had the opportunity to cross-examine him. Even though the jurors will be instructed to disregard Tepper’s testimony, it’s very hard to “unring the bell.”

** While Matt goes to the 15th precinct to get copies of criminal complaints made against Tully, Foggy and Karen go to Tully's lawyeres at Landman & Zack. When they get there, they meet Marci Stahl in the building lobby and discuss the case there. This is Marci’s way of belittling Foggy and the case, to make clear "it’s not important enough for us to go up to my office to discuss it." Such a conversation really should not take place in a public space like the lobby. Foggy’s saber-rattling speech to Marci at the end of the discussion is also off. He tells Marci it’s her job to convince his client to take Landman & Zack's offer. Actually, it’s up to Marci to make the case to Foggy as to why his client should take the offer. It’s then his job to talk to his client and advise Elena whether to take it.
** When Mrs. Cardenas first goes to Nelson & Murdock for a client consultation, Foggy says they will try to negotiate a better deal for her. This is the right approach. But later on, after Wilson Fisk takes over Tully's properties, Elena reports that Fisk has doubled Tully’s offer, and Foggy inexplicably changes his mind and agrees she should not accept it. Matt tells Foggy he shouldn’t have done that, and Matt is seemingly proven right as Fisk subsequently has Elena killed as bait to lure Matt into an ambush by Nobu. But actually, Matt is right for another reason: they're in no position to prevent Fisk from carrying out his plans for the building. Under these circumstances, Foggy and Matt’s job is to negotiate with Fisk's lawyers to get the best possible deal for their client. They needed to sit down with Mrs. Cardenas and give her the "come to jesus", where they explain the harsh realities of litigation.

* The trial of Fisk's assassin John Healy;

** Matt’s closing argument is...unusual, to say the least. Matt briefly discusses the law and the evidence and argues the prosecution has not proved its case and, specifically, has failed to prove Healy wasn’t acting in self-defense. This would be a fairly typical closing argument. But then he veers into the whole discussion of “good or evil” and morality, and the judgment Healy may face outside the courtroom. Hard to say what he’s doing here, perhaps assuaging his conscience for defending someone he knows is a guilty-as-sin contract killer. At the same time, he is careful not to argue against his client, which would be unethical.

** Matt, Foggy, and Karen go to see Frank in the hospital, and ethically are skating on thin ice. As Reyes correctly points out, Frank is already represented by counsel, and it is unethical for Matt and Foggy to talk to him about the case without the knowledge and permission of his attorney of record. They may also have violated an ethical rule against in-person solicitation, when they ask Frank to hire them as his attorneys (although they could argue that they technically hadn't violated this rule because they were offering to take the case pro bono, very few people would've bought it).

** But then, when Matt says they’ll get an extension, Foggy tells him Frank agreed to the trial date. It doesn’t matter that Frank agreed. His desire to go to trial immediately and his right to a speedy trial doesn’t override his right to the “effective assistance of counsel” guaranteed by the Sixth Amendment to the U.S. Constitution. Matt and Foggy should have been able to get a continuance by arguing they can’t possibly provide effective assistance of counsel with only a week to prepare.

** There's a long, dramatic sequence where Frank is brought into the courtroom in chains and a prison jumpsuit. Any lawyer will tell you that this is a big no-no. Allowing Frank to appear in front of the jury in the orange jumpsuit and visible shackles sends a message to the jury that he is so dangerous he has to be locked up and restrained, even when in the courtroom. This deprives him of a fair trial. It is malpractice on the part of Matt and Foggy to allow this to happen. They should have gotten an order for Frank to be “dressed out” in street clothes for ''the whole trial'', not just when he testified (this is such a big deal that public defenders' offices do clothing drives just so their defendants can look presentable). While it is permissible for a dangerous defendant to be shackled during trial, it has to be done in such a way that the jury doesn’t see the shackles. The heavily armed guards standing near Frank also tell the jury that he’s dangerous. With a dangerous defendant like Frank, there may be extra security in the courtroom, but it has to be done in a way that is not prejudicial to the defendant. In a real trial, all of these issues would have been addressed before the trial began.

** Matt’s “direct examination” of Castle. You don’t have to be a lawyer to recognize how wrong this was. After a few questions, Matt asks the judge for permission to treat Frank as hostile, then totally abandons any pretense of questioning Frank and argues the case to the jury, like he was giving a closing speech. Even worse, no one does anything about it. Reyes and Tower sit at counsel table like a couple of potted plants and say nothing. As soon as it was clear what Matt was doing, they should have been on their feet, objecting vehemently, and the judge would've ruled "Sustained. Mr. Murdock, you are questioning the defendant. Save your speech for your closing argument." In this situation, the judge might have intervened even if the prosecutors didn’t object. Most judges will “let the lawyers try their case,” but what Matt did is so extreme that the judge might have taken action without an objection.

** There is a lot of confusion about state vs. federal jurisdiction throughout season 3. The early episodes establish that Fisk was prosecuted under the federal racketeering statute known as RICO, and is in federal custody. Yet when Nadeem proposes moving Fisk to house arrest, he and Hattley meet with District Attorney Blake Tower and the NYPD Commissioner. As local law enforcement officials, they wouldn’t be involved in the change in the status of a federal inmate. This could just be a courtesy meeting simply to inform Tower and the NYPD of what the FBI was doing, seeing how high-profile Fisk is. but Hattley and Nadeem seem to be seeking their approval for Fisk to be moved.\\
Then, in later episodes, Tower insists that Fisk is “solely” under federal jurisdiction. Thing is, Fisk committed crimes before and after his prison time that he could be prosecuted for under state law. Double jeopardy would prevent Tower from prosecuting Fisk under state law for anything encompassed by the RICO prosecution, but Fisk could have been prosecuted under state law for other crimes, such as the murders of Detective Blake and all the other cops that were killed on Fisk's orders. Foggy seems to be the only one who understands this. In real life, the feds might very well have deferred to Reyes (as she was the District Attorney at the time of Fisk's original arrest) and she would prosecute Fisk for the more serious crimes like murder first, before letting the Feds take their turn.
* Matt visits the prison to speak to Michael Kemp, a former client of his, as pretense to get to the Albanian gang leader incarcerated there in hopes that he has information on Fisk. The visit takes place in what looks like a general visitation room, with many other people present. An attorney-client prison visit would take place in a private room, where they can speak confidentially, without being overheard. However, this is [[AcceptableBreaksFromReality a necessary break from reality]], because everything that subsequently happens in the prison, including [[TheOner the ten-minute continuous take fight scene]], probably wouldn’t have happened if they had met privately. There is a nice touch of accuracy as Michael mentions that Matt and Foggy got 16 years knocked off his sentence. Most of the time, appellate defense lawyers are unable to get a client’s conviction reversed, but they can obtain some other benefit for the client, such as getting him a reduced sentence.)

* Matt and Nadeem do an illegal search of Dex's apartment looking for evidence tying him to the ''Bulletin'' attack, like the Daredevil suit that Melvin built for Dex. Before they break in, Nadeem explains his plan to circumvent the requirement for a search warrant by leaving any evidence they find in place, then setting off the fire alarm on the way out. Matt agrees to it, but he should have known better. Under the “exigent circumstances” exception to search warrant requirements, police are allowed to enter a burning building to search for and rescue people and attempt to put out the fire (not that they should, since they don't have proper firefighting gear). However, the scope of such a search is limited by the nature of the emergency that justifies the warrantless entry. In the case of a fire, they can search for people in the burning building to the best of their ability. They can also see whatever is in “plain view” (well, Ray can, in this case). This exception does not give them carte blanche to conduct a full search for evidence of criminal acitivity. For that, a search warrant is still required. And if it was discovered that Matt and Nadeem set off a false fire alarm to circumvent the search warrant requirement, any evidence they found would be suppressed. All things considered, it’s a good thing they didn’t carry out this plan.