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Sherlock and the Law

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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10 Responses

  1. Howard Wasserman says:

    Sorry, unable to disabuse you. I wrote about some of the stuff on Elementary (a show I generally enjoy, although Sherlock is better) here:

    http://prawfsblawg.blogs.com/prawfsblawg/2012/10/law-on-tv.html

    The worst was when Holmes kicks in a door and when told he needs a warrant, responds “it’s a good thing I’m not the police.”

  2. Horspool says:

    Sherlock lives in an alternate universe. Look at his flatmate Watson– he’s got a 9mm Browning Hi-Power (former British service pistol) which Sherlock borrows and nobody bats an eye. It’s not even a matter of Lestrade and Mycroft extending administrative immunity to the pair; they all simply exist in a different time-space continuum.

  3. Scott Dodson says:

    All this is probably true and might be concerning for a show, like Law & Order, whose protagonists’ goals are to catch criminals in lawful ways. But my take on Sherlock (having seen all three seasons–and loved them!) is that Holmes’s goal, at bottom, has nothing to do with lawfulness or even incapacitating criminals. In that spirit, perhaps the show’s depictions of his unorthodox methodologies are quite fitting.

  4. Patrick K says:

    I’ve seen both series and neither Sherlock follows the law. I think they want to make the show more about his mind and his craziness. These shows are not about lawfulness but rather investigating in outlandish ways.

  5. Tyler M. says:

    I’m with Scott. In “Sherlock,” Holmes explicitly refers to himself in one of the early episodes as a “high-functioning sociopath,” so he at least recognizes that acting in conformity with social and legal norms is not really his thing. And throughout the show there are references to the idea that Sherlock is in it for the game, rather than for justice or money or something else.

    The Holmes of “Elementary” lacks this trait, but it doesn’t stop him from doing things that would horribly damage the investigation. As Howard wrote, he seems to hold the bizarre idea that his status as a “consulting detective” absolves him of the obligation to follow legal rules. (Another explanation for the scene Howard discusses is that no one was concerned about the stolen furniture, or about prosecuting the opportunistic thief. Instead, Holmes was demonstrating that the neighbor was innocent of murder, which allowed the investigation to focus on more relevant information. But that doesn’t explain Holmes’s “good thing I’m not the police” line.)

  6. Cornelius McCracken says:

    “Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State)”

    I don’t think this is so clear. Doesn’t it matter that Holmes is not consulting for the police but for private citizens? At least he is in most instances in the original stories.

    I recognize that in the Irene Adler tale, the new BBC series swaps Bohemia for Belgravia and changes that calculation, as does the more frequent involvement of Mycroft in his governmental capacity. These are mostly problems in the second season though, as I recall.

  7. Cornelius McCracken says:

    And of course this only swaps one set of problems for another (due process for burglary/trespass/etc)

  8. Sandra Dotch says:

    Both great shows! But of course they are both very unrealistic in regards to law.

  9. PrometheeFeu says:

    First, I think it is important to recall that Sherlock isn’t waging a Batman-style war against crime. He merely finds what he does enjoyable and so probably does not care very much about convictions as long as he gets to show off.

    That said, my memory may be failing me, but I don’t think there is much of a problem. For instance, in all the cases where he breaks in, he is not breaking in the perpetrator’s apartment, to the third party rule comes in. Furthermore, in most of the cases, the perpetrator dies which makes the matter of criminal procedure moot.

    The only episode in which a trial would matter is the Great Game. In the Great Game however, I would argue exigent circumstances. And even if it didn’t apply, I didn’t see any issues with what he did in that episode.

    I didn’t see season 3 yet.

  10. I’ve been thinking recently about what Sherlock Holmes would have made of the legal regime governing modern policing.
    In the original stories, Sherlock Holmes said ‘The ideal reasoner…would, when he has once been shown a single fact in all its bearings, deduce from it not only all the chain of events which led up to it, but also all the results which would follow from it…’ and for this he needed possession of ‘all knowledge.’ (The Five Orange Pips)
    One of the first profilers perhaps but he didn’t have to contend with the UK’s Data Protection Act or the right to respect for private life under ECHR.
    Can’t imagine that a scene involving Holmes conducting a proportionality assessment about the retention or disclosure of intelligence would make particularly riveting viewing. Anyway, he’d most likely ignore all the lawyers and make his own decision anyway!

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