The Saturday Writing Quote — Anne LaMott

In writing, “[y]ou have to give from the deepest part of yourself, and you are going to have to go on giving, and the giving is going to have to be its own reward. There is no cosmic importance to your getting something published, but there is in learning to be a giver. … [T]hink of the writers who have given a book to [you], and then write a book back to them.”

– Anne LaMott, Amercian novelist and nonfiction writer, b. 1954, in Bird by Bird

Miranda: A Refresher

Like so much in life, legal errors in fiction seem to run in streaks. Errors in several recent reads prompt this refresher on Miranda rights and warnings.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at government expense.”

US Supreme CourtIn Miranda v. Arizona (1966), the U.S. Supreme Court decided several cases from around the country that raised a critical issue: Must a suspect be warned of his rights before being interrogated? Which rights? Under what circumstances? And what are the consequences if he isn’t warned? The Court said the Constitution requires that suspects in custody be informed of their right to silence–grounded in the Fifth Amendment right against self-incrimination, that anything they do say could be used against them, and that they have the right to counsel. Only if the suspect understood those rights and voluntarily waived them can statements made during custodial interrogation be used against the suspect in court.

A noteworthy exception to the warning mandate is the “public safety exception” of New York v. Quarles (1984), where officer or public safety is at risk.

The Supreme Court decided two Miranda cases in 2010. In Maryland v. Shatzer, the suspect requested a lawyer and questioning stopped; fourteen days later, he was taken into custody, waived his right to counsel, and voluntarily confessed. His initial request for counsel did not bar the later interrogation or prevent an effective waiver.

In Berghuis v. Thompkins, the Court held 5-4 that once a suspect has been warned, he must specifically invoke his right to silence—an explicit waiver is not required—and that a brief response amounting to a confession will be taken as a waiver and will be admissible. The Michigan detectives asked Thompkins if he prayed to God, and when he said yes, they asked him if he prayed for forgiveness for “shooting that boy down;” yes, again. That, the majority held, was a choice to respond, and thus to waive the right to silence. The result of the decision may be that police will continue to question suspects who remain silent after being warned, hoping to increase the likelihood of an eventual response. Keep in mind, though, that some states may hold otherwise under their constitutions, and individual police departments may require explicit waivers.

Keys for writers to remember about Miranda warnings:
• only suspects in custody are entitled to warnings;
• warnings are required only before interrogation—that is, questioning;
• voluntary statements not made under questioning are admissible;
• a suspect who’s been warned can waive his rights and agree to be questioned;
• it’s the substance of the warning—not the exact language—that matters. But most law enforcement departments require officers to use standard language to prevent later disputes over what was said.

Consider this scenario, looking first at custody: Police ask a man to come to headquarters to talk about the disappearance of a child in his neighborhood. He agrees, drives his own car, and is interviewed in an unlocked office; everyone is cordial and it’s clear that he’s free to leave any time. He’s not in custody.

Contrast this with the same man ordered to get in the back of a police car, which then takes off; he hasn’t been told he can’t leave, but under the circumstances, he’s not reasonably likely to believe that he can.

Now let’s look at interrogation. In the interview room, two officers tell him they’re waiting for a photograph to be printed. They don’t warn him. Meanwhile, they discuss the scene they’ve just left, the blood, the horror, and wonder out loud what kind of person would do such a thing. What kind of warped mind, what kind of terrible childhood, and so on. Squirming, the man finally blurts out, “You leave my mother out of this. She had nothing to do with me killing that girl.” He then breaks down in tears and tells the whole story. No interrogation, just a conversation between two officers—maybe with the goal of provoking a response, or maybe not. After analyzing all the facts, the judge may conclude that the suspect was not in custody, and never consider whether he was interrogated. If the facts establish custody, the judge will consider whether the statement was a voluntary, spontaneous response to the officers’ conversation, or whether it amounted to an interrogation. That decision determines whether his statements are admissible or must be suppressed.

US Supreme Court - Lady JusticeUS Supreme CourtWhat if the suspect was warned first? Analysis will focus on whether his statements were coerced, and therefore inadmissible, or made voluntarily with full knowledge of his rights. The facts make all the difference.

Assume the suspect requests a lawyer, either before or after his confession, but keeps talking. The lawyer will move to suppress, to determine whether the additional statements are admissible, under the analysis just described.

Remember that arrest alone does not create an obligation to warn a suspect. Failure to warn does not require dismissal of charges, although it may result in a suppression of evidence obtained through improper interrogation.

By changing the setting, the age, sex, race and even the size of the suspect and officers, the time of day, how long the suspect remains in custody, and of course, what’s said, you can add more tension and complexity to your plot. Is the conversation on a street corner at mid-day, or in a small gray room in the basement of the police station? Is the suspect sixteen or forty-five? Is the door open or shut? Do the officers come and go, take bathroom breaks, eat and drink—but offer the suspect nothing? Is his agreement to waive his rights threatened or coerced, or has he been treated with basic human decency? If the suspect is likely to talk, nothing will shut him up faster than being warned; suspects watch TV, too, and of course, many have been through the drill before. Is your story better served by a silent suspect or a talkative one, by wrangling over admissibility of a confession, or by going to trial quickly?

The Miranda decision, written by Chief Justice Earl Warren, isn’t easy reading, but it is fascinating. A former prosecutor himself, Warren rightly believed that prosecutors have a responsibility to protect individual rights and ensure fair trials as well as to prosecute crime. Your fictional prosecutor and detectives might agree, or shade the line.
Writers of historicals, remember that attitudes about the rights of the accused changed significantly in the 1960s. Miranda was a 5-4 decision, and controversial, even though the FBI and some states already used similar warnings.

Miranda*** Who was Miranda? Ernesto Miranda was convicted of rape and kidnaping, based on his confession and the victim’s identification. He was not advised of his right to counsel or to silence, although the written confession form included a preprinted statement that he knew his rights and that his statements could be used against him. After the Supreme Court decision, he was retried, without the confession, and again convicted, based on eyewitness testimony and the testimony of his common law wife, with whom he was in a custody battle over their daughter, that he had admitted the rape to her. Miranda was released in 1972 and returned to prison for a time in 1974. While out, he sold signed Miranda cards for $1.50 each. He was stabbed to death in 1976 at age at 34 in a bar fight; no one was charged.  ***

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Adapted from Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books), by Leslie Budewitz, winner of the 2011 Agatha Award for Best Nonfiction.

Writes of Passage — a terrific new resource

WRITES OF PASSAGE front

 

Delighted to share news of a terrific new resource for writers: Writes of Passage: Adventures on the Writer’s Journey, a collection of 59 essays by members of Sisters in Crime, edited by Hank Phillippi Ryan and published by Henery Press.

A road map for writers in any genre, from novice to bestseller, it’s filled with advice and inspiration for the writer determined to keep on trekking.

My own essay opens the section on Belonging, and is titled “Connecting: Group Power, for the Writer Alone in Her Room.” Other contributors include Hallie Ephron, Elaine Viets, Krista Davis, Sheila Connolly, Jenny Milchman, Carla Neggers, Nancy Martin, and Laurie R. King. Needless to say, I’m thrilled at the company.

I’ll be sharing snippets from essays on my Facebook Author page over the next few weeks. I hope you’ll join me there, or better yet, buy your own copy. It’s available on Amazon , from Barnes & Noble in store or online, through Indiebound, the Independent Booksellers Association, or from Henery Press, in hardcover, trade paperback, and e-book.

Because who doesn’t need to peek at a map now and then?

 

Garner on Usage: judgment or judgement

This is so important that I’m sharing the entire post, from the estimable Bryan Garner.

“Garner’s Usage Tip of the Day

judgment.

Part A: Spelling. “Judgment” is the preferred form in American English and in British legal texts, even as far back as the 19th century. “Judgement” is prevalent in British nonlegal texts and was thought by H.W. Fowler to be the better form (Modern English Usage 1 at 310).

Part B: American and British Legal Senses. In American English, a “judgment” is the final decisive act of a court in defining the rights of the parties {the judgment constituted the final decree}. In British English, “judgment” is commonly used in the sense in which “judicial opinion” is used in American English.

Part C: “Court judgment.” This phrase is a redundancy, though an understandable one when the likely readers are nonlawyers. For example, the following book’s title might have misled general readers if the word “court” had been removed: Gini G. Scott et al., Collect Your Court Judgment (1991).”

“Legal Ethics: Social Media Edition”

I’ve written before about social media and the practice of law — How to Destroy a Legal Career with Facebook The Case of the Juror with the Twitchy Thumbs — the Oregon juror sanctioned for sending Tweets from the jury box, and Investigating with Social Media. And of course, I’ve written about other dumb things lawyers do. Today, I’m sharing a blog that combines the topics, from NW Lawyer, the Washington State Bar News blog.  Of course, your lawyer protagonist would never do such things, but the lawyer on the other side of a big case? The cute guy lawyer your protag used to see in the courthouse and now she wonders where he went — or why he’s now pulling espressos at Starbucks instead of working in the defender’s office?

“Legal Ethics: Social Media Edition

 

social mediaSocial media has potential pitfalls for everyone, but particularly lawyers. Take a look at these stories about lawyers using — and sometimes abusing — social media, and breathe a sigh of relief that you haven’t made any of these mistakes (you haven’t, right?)

About the Author

The Washington State Bar Association’s Office of Disciplinary Counsel (ODC) is responsible for reviewing, investigating and prosecuting grievances about the ethical conduct of Washington lawyers. Learn more about the ODC.”

Happy Birthday, Dame Agatha!

Dame AgathaAgatha Christie, born Sept 15, 1890, died Jan 12, 1976

Who among us mystery writers and readers didn’t race through her books, many of us as teenagers, learning for the first time about life in English country houses and villages, about the years between the wars, about sharp-eyed spinsters, Belgian detectives with their “little gray cells,” and dashing couples who hid keen senses behind their frivolous appearance? Author of 66 novels, 14 story collections, an autobiography, and playwright. The Mystery Writers of America’s first Grand Master, in 1955. Author of Mousetrap, the longest running play on record, and Witness for the Prosecution, a hit in London and on Broadway, and a movie directed by Billy Wilder starring Charles Laughton, Marlene Dietrich, and Tyrone Power.

A few favorite quotes:

“It is a ridiculous thought but it is only when you see people looking ridiculous that you realize how much you love them.”

“Everyone has something to hide.”

“Every murderer is somebody’s friend.”

“That was the moment I changed from an amateur to a professional. I assumed the burden of the professional which is to write even when you don’t want to, don’t much like what you are writing, and aren’t writing particularly well.” Written in her biography, shortly after her divorce in 1928, when she was working on The Blue Train, a book she didn’t like but felt she had to finish, to support herself and her young daughter and establish herself as a mystery writer.

To quote Rodgers & Hammerstein, in South Pacific, “There is nothing like a dame.”

 

The Saturday Writing Quote — on fear

“[T]he more we try to pretend that fear doesn’t and shouldn’t exist, the more we hurt our own chances to create whatever it is [we] dream about. … I don’t think fear is a shameful thing that we must rid ourselves of. It is a natural part of taking the risks that writers do. And the logical reaction to fear should indeed be bravery.”

Dan Blank, media consultant and teacher, on Writer Unboxed

“To live a creative life, we need to lose our fear of being wrong.”

— Joseph Chilton Pearce, American child educator and author, b. 1926

 

Common terms: scot-free

When I came across this definition, from the website Word of the Week, I figured other readers would be as surprised as I was to know it has nothing to do with Scots, or Scotch, at all, despite the common assumption otherwise. The term does pop up occasionally in law talk, usually in the derisive sense, as in “The scumbag got off scot-free.”  That sense, at least, makes some etymologic sense.

“scot-free (adj.) Old English scotfreo “exempt from royal tax,” from scot “royal tax,” from Old Norse skot “contribution,” literally “a shooting, shot; thing shot, missile,” from Proto-Indo-European *skeud- “to shoot, chase, throw” (see shoot (v.); the Old Norse verb form, skjota, has a secondary sense of “transfer to another; pay”) + freo (see free (adj.)). First element related to Old English sceotan “to pay, contribute,” Dutch schot, German Schoß “tax, contribution.” French écot “share” (Old French escot) is from Germanic. (thanks to etymonline.com)”

So now you know what I know, plus what you know, which makes you smarter.

The Saturday Writing Quote — getting concrete

“Writing should be concrete. It should evoke images and refer to something the reader can identify with particular experiences. A general concept like motion is interesting to a philosopher, but an ordinary reader wants to know what is moving, how fast, whether it is going toward him or away from him, and what effect the motion of this object will have on his income or his likelihood of getting a good night’s sleep.”

— Sumner Ives, A New Handbook for Writers 317 (1960).