The Night Of: A True Portrayal of Criminal Law

A New Jersey’s Criminal Defense Lawyer’s Opinion of “The Night Of”

It’s my experience that “true crime” TV isn’t always so true — the crimes are unrealistic, the detectives are more entertaining (and sometimes better looking…) than they are accurate, and in many cases, TV trials could not be further from reality. I have to admit, though, I was riveted as I watched HBO’s “The Night Of.” This eight-part limited series is the first crime show I’ve seen in a while that rings true to my experience as a lawyer and what my clients experience as they go through a trial.

More than solving the whodunit, “The Night Of” is about how incarceration brutalizes people, even before they get their day in court. In a sadly accurate way, “The Night Of” follows the main character, Naz, as he transforms from a good guy, from a good family, putting himself through college to a bulked-up, tattooed menace while awaiting trial on Rikers Island.

Real Trials in New Jersey

There are many steps in a criminal trial proceeding and, for the most part, “The Night Of” accurately follows these. As I watched the series, I was glad to see a television series follow along with the reality of a criminal case so closely.

New Jersey Arrests

The judicial system starts with a complaint, which is a document the police will file against a person who is arrested and accused of committing a crime. The complaint is a charging document that law enforcement produce containing the basic allegations of criminal conduct. A complaint can only be filed if a third party, such as a Judge or court administrator, agree probable cause exists that the defendant committed the crime alleged.

How quickly a person gets charged depends on the offense. If a person is pulled over and found with marijuana on them, the arrest and charges come quickly. For something that requires retroactive investigation, such as a murder or home burglary, a charge will come at the conclusion of their investigation. The vast majority of my clients with Rosenberg | Perry & Associates are arrested fairly quickly.

This is similar to “The Night Of.” The police arrested Naz fairly quickly for homicide, and mostly through a comedy of errors — the traffic stop, the 911 call about a burglary, the blood on his hand from her cut the night before and the knife in his car, for example. These details helped the police come to the conclusion Naz committed the crime.

Setting Bail In New Jersey

After being arrested, a Judge immediately assigns bail to the accused. If the person can make the bail, they pay it and get released from prison. If not, in New Jersey, the accused must attend a first appearance within 72 hours. At the first appearance, a Judge will advise him or her of the charges, of their constitutional rights and will review and potentially lower the bail if asked.

This is a crucial step in the criminal justice process and shows why it’s so important to obtain an attorney early. The accused are allowed to have an attorney at the first appearance, which allows me to argue their bail be set lower and to begin a dialogue with the prosecutor’s office.  In cases that garner media attention, it is critical that a defendant have an attorney who will strongly assert their innocence to prevent the unfair assumption by the public that they are guilty simply because they were charged.

“The Night Of” is a bit unusual in that Naz’s attorney approached him while seeing him in the holding cell. Typically, I will receive a call from a person’s family or loved ones to hire me on their behalf.  However, it is not unheard of for some attorneys to “hover” in certain areas to attract potential clients.

Awaiting Trial In New Jersey

After the first appearance, everything dies down for a significant period. If the defendant was able to make bail, they go home. Those who can’t make bail must wait for their trial in prison, and are entitled to have a bail review approximately every 30 days. During this waiting period, the county prosecutor reviews the case and decides whether to dismiss the case, remand it to Municipal Court or proceed as a felony in Superior Court.

When the prosecutor decides to move forward with the case in Superior Court, they must start collecting evidence to present to the Grand Jury — a selection of 23 jurors who decide if there is probable cause and evidence that supports the charges. Only 12 jurors have to agree for the case to move on to court.

I worked as an Assistant Prosecutor in the Grand Jury Unit for more than two years, so I’m intimately familiar with this process. Working with a Grand Jury is nothing like what you see on TV. It can take anywhere from three or four months to more than a year to get the case before the Grand Jury.

New Jersey Court and Trial

When the Grand Jury indicts a matter, the case formally enters the court system, and the first court proceeding is scheduled. Overall, the waiting process can take a year-and-a-half to two years from when a person is charged to when the case goes to trial. If the accused doesn’t have the money for bail, they will spend this time incarcerated.

This is where the bulk of “The Night Of” falls — Naz is accused of murder, neither he nor his family can make bail, and he spends a significant (although undisclosed in the show) period incarcerated waiting for his trial.

The Impacts of Prison

Although I would call the show’s portrayal of the trial grandiose, “The Night Of” did an exceptional job at telling the story of the American incarceration experience. Sadly, I’ve seen what Naz has been through many times with my clients.

I know from personal experience that incarceration does change people. For defendants like Naz, who are largely upstanding citizens, the experience comes as a rude awakening. These are people who typically never expected to end up incarcerated and treated like criminals. Unfortunately, our criminal justice system too often embraces a “one size fits all” approach to those accused of a crime without considering an individual’s specific circumstances.

In the show, Naz had to adapt to his surroundings for survival. This is a real depiction — I have seen clients change, losing the values they once had as they were forced to adapt to prison life. Whatever life they have on the outside is nonexistent inside a prison. It’s a terrible thing to see from the outside looking in.

In my experience, clients become akin to a turtle, retreating into their shell the longer they have been incarcerated. They often become quiet, subdued, introverted, tense and guarded, constantly protecting their physical and mental health. This adaptation can change a person, regardless of whether or not they are convicted.

“The Night Of” also accurately depicts an often overlooked element of the criminal justice system — the impact of incarceration and trial on the accused’s family. Not only is Naz’s family shamed in their community, but Naz’s father also can no longer work as a taxi driver because his taxi is evidence in the investigation. Both of Naz’s parents picked up extra work to make ends meet and pay their son’s attorney fees.

My clients’ families often face the same hardships, having to adjust their lives to help finance a trial and encounter the press and community gossip while still attending church, work or school. To some of my clients’ families, it almost feels as if they are on trial too.

Presumption of Guilt

Another component of “The Night Of” that rang true to me was the presumption of guilt.  While in some cases my clients are guilty of the crimes of which they are accused, it seems they often receive a guilty verdict in the court of public opinion before a court of law.

It is every American’s right to be considered innocent until proven guilty, however, law enforcement and prosecutors will often read into evidence with the assumption that my client is guilty. This is often true of the general public, as well. When my client’s picture is on the front page of the local newspaper with a headline that outlines allegations, many people assume my client is guilty.

Many times this is not true and my clients are innocent, despite how the evidence may make them appear. I was happy to see this unfortunate circumstance depicted in “The Night Of.” I don’t fault the lead detective for initially believing that Naz was guilty of murder — the evidence he had suggested so. Too often, though, the general public assumes this presumption of guilt only occurs in movies or on television. I have too many clients who will tell you this also happens in real life.

Both they and Naz experience irreparable damage during this time, an impact that cannot be undone if they are finally vindicated. I recently represented a young man whose charges were dismissed after two years. His reaction?

“Where do I go to get the last two years of my life back?”

Sadly, I don’t have an answer.

This is why obtaining experienced, diligent counsel is incredibly important — without representation from a knowledgeable attorney, the accused’s temporary nightmare could become their reality for many years. The Rosenberg | Perry & Associates legal team knows the nuances of criminal proceedings in New Jersey intimately, and we have a reputation for delivering optimal outcomes for our clients. If you or your loved one have been accused of a criminal charge, please call our firm at 609-216-7400 for a free consultation.