The Saturday Writing Quote

heart key“If I’m going to err as a writer, I don’t want it to be because I was cautious with my heart, that I loved writing a little but never too much.

My resolution is to want to write, to desire it, deep down. To be jealous of my time with the page when I’m away from it. To long for it. To be torrid. To love it too much and to accept the pain that might come from that.”
–Julianna Baggott, on Writer Unboxed, 1/4/15

Can a child testify in a criminal trial?

One more bonus reprint; was originally published several years ago in First Draft, newsletter of the SinC Guppies chapter, then lived on my website in the Questions of the Month.

Can a child testify in a criminal trial? 

Yes, but very young children must first be found competent to testify. In Idaho, Joseph Duncan was set to stand trial for murdering a woman, her boyfriend, and her teenage son, and kidnaping her two younger children for sex; he later killed the younger boy but was captured in Montana with the girl, then nine. Idaho law requires a judge to interview privately any child under ten to determine competency. Days before trial, the judge found the girl competent to testify.

Some states establish competency review requirements by statute, while others rely on case law. Most states require that witnesses under ten be interviewed to determine their competency, either before trial or during trial but outside the presence of the jury. Older children’s competency may also be challenged, if the lawyer opposing the testimony files a motion asking the court to determine competency. In the Duncan case, the nine year old is the only living witness to a triple homicide; the judge determined her competency before trial because of the potential effect on plea discussions and trial if she were unable to testify.

The issue in determining competency is whether the minor witness has the ability to 1) understand the obligation to tell the truth, and 2) to accurately relate events seen, heard, or experienced. (The same rules apply to adult witnesses whose mental capacity is in question.) Those criteria are broken down further into these elements:

• Capacity to observe.
• Sufficient intelligence.
• Adequate memory.
• Ability to communicate.
• Awareness of the difference between truth and falsehood.
• Appreciation of the obligation to tell the truth in court. Judges are trained to use age-appropriate terms and measures. A young child may say that if she lies she’ll be punished, or if he doesn’t tell the truth, God won’t love him any more. In most cases, that’s enough.

In Washington State, a three year old was allowed to testify about abuse that occurred when she was two, because she met the basic criteria for competence as to the subject of her testimony. Obviously, she could not be asked more complex questions that a seven or ten year old could understand and respond to, but she demonstrated her understanding of the difference between the truth and a lie, and the importance of telling the truth; the judge concluded that she had the necessary ability to observe and communicate what had happened to her. However, it’s entirely possible that another three year old or an older child might not be found competent.

When a child is unable to testify, their prior statements to parents, counselors, doctors, or law enforcement may be admissible at trial under some circumstances. I’ll look at that issue in another column.

As a direct result of the Idaho court’s competency decision in Duncan’s case, on the day jury selection was scheduled to begin, Duncan pled guilty in state court to three charges of first degree homicide and three charges of first degree kidnaping. He was immediately sentenced to life in prison without parole on the kidnaping charges. Federal prosecutors plan to try him on additional kidnaping and homicide charges for taking the two young children to Montana where he molested both and killed the boy. If he is not sentenced to death on the federal charges, Idaho may still seek the death penalty on the Idaho homicides. Duncan said he wanted to spare the family and community any more pain. It’s unlikely that he would have pled guilty without the nine year old’s testimony. Two other states are still considering charges for unrelated crimes.

The possibility that a child will testify can add a lot of drama and tension to a case. You can use that possibility, the competency evaluation, and the trial testimony to complicate your plot and add layers to your story.

The Duncan case is discussed in several Q&A in my book, Books, Crooks & Counselors.

Death by Details

 

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in First Draft, the SinC Guppy chapter newsletter.

DEATH BY DETAILS How much does the writer need to know about the story background vs. how much the reader needs to know?

A while back, I begged off my regular column because I was jammed by deadlines in federal court. In true editorial fashion, Susan [Evans, then First Draft editor] asked if I could make a column out of that. How on earth, I wondered, could I make civil discovery and disclosure deadlines in a groundwater pollution case interesting? Or the expert disclosures and settlement discussions going on at the same time in a state court case involving three electric utility companies and the state of Montana over water rights and the navigability of certain rivers at statehood in 1889?

And that brought me to a larger question: how much do you the writer need to know about the background of your story? And how much does the reader need to know?

I recently read a mystery – Higher Authority, an early entry in Stephen White’s excellent and successful series – involving a young woman’s claim of sexual harassment by an older woman she’d worked with. The lawyer filed suit within days after taking the case – without first filing a state or federal administrative claim. Outrage! Malpractice! Even a dumb lawyer – and there are plenty, despite the brains it takes to get in and out of law school and pass the bar exam – knows better! But the process takes weeks, even months. Including it would destroy a story that depended on the pressure of the lawsuit to trigger bad actors to do still more bad things.

So how much do you the writer need to know? I have no doubt White knew about the administrative claim process and simply decided to leave it out. Only trained professionals and a handful of readers would know he’d skipped a legally necessary step, and surely they would forgive him, for the sake of the plot. I did, barely a moment after creasing my forehead at the omission. After all, it’s a novel, not a civil procedure text, and readers aren’t looking to the plot for legal advice.

But knowledge can help you avoid mistakes that readers will notice – mistakes that affect the plot, or that introduce unnecessary error or confusion. A writer recently asked me about the spousal privilege, thinking she could add tension to her plot by if her protagonist married the good guy wrongly suspected of murder, preventing the protagonist from testifying against him. She didn’t realize that the privilege wouldn’t protect her character from being compelled to testify about what she saw him do, and that the law in her story state would not protect her from testifying to what he told her, because the conversations occurred before their marriage.

Another writer became concerned when a critique partner questioned her story’s setting in a small-town casino. The critter thought a casino had to be connected to an Indian tribe – a possibility that hadn’t even crossed the writer’s mind. Turns out her story state does allow non-tribal casinos – but readers might not know that, so she decided to forestall potential furrowed eyebrows by making the point in a brief dialogue exchange.

Back to those deadlines. If I were writing a story set around environmental litigation – wait, I did that. It’s in a box on a shelf in my office closet – would I spend precious pages detailing the emergency response, what state law requires, the VPH test results, test pits to delineate the scope of the dissolved-phase plume, and the hours after hours spent writing it all up for the various agencies, then more hours preparing documents to meet pressing deadlines? You know my answer, don’t you? But rather than skip over those details entirely, consider their role in your story. If your mystery centers on the environmental problems, would it benefit from weaving in a bit of the real-life complications? Is your character exhausted and seeing double after working till midnight sorting through boxes of disorganized records? That might be a good time for the villain to follow her home, when she’s least prepared mentally and physically. If you want to get her away from the office and civilization – and out of cell phone reach – consider a site visit to a remote mine or tailings pit. If you want to set up a court room confrontation, let her find a surprise in those boxes – a report that wasn’t disclosed when it should have been, a letter of complaint that predates the polluter’s first acknowledged notice, or an internal report on the dangers of the product or practice at issue. (“At issue” – lawyers say that a lot.) Use those details to complicate your story. But if the legal issue is more of a subplot than the heart of the story – as in White’s Higher Authority – you can safely leave your readers innocent of the finer points.

You don’t need to know all the details. If you do – from personal experience – you have the tough job of deciding what the reader needs to know. If you don’t, you have an equally tough job of learning just enough, and not getting lost in your own research. Talk to the experts. Run a scene by one of them. Ask a friend who knows nothing about the technical aspects to read your scene and tell you what she understood and didn’t. Sharpen your red pencil and be prepared to be ruthless with those details. Because “the curse of knowledge” can be the enemy of a good read.

The Saturday Writing Quote — a bonus quote

01_Barn_Pastel_WEBSome say the creative life is in ideas, some say it is in doing. It seems in most instances to be in simply being. It is not virtuosity, although that is very fine in itself. It is the love of something, having so much love for something—whether a person, a word, an image, an idea, the land, or humanity—that all that can be done with the overflow is to create. It is not a matter of wanting to, not a singular act of will; one solely must.

– Clarissa Pinkola Estés, from Women who Run with the Wolves

Painting: The Barn, pastel on garnet paper, by Leslie Budewitz

The Saturday Writing Quote — on journaling

“Here is reason to keep a journal. You will learn how to observe the things that happen to you, how to sort out the important from the unimportant, how to put your observations into words, and perhaps how to make sense of your life. The daily practice of writing your own autobiography will develop the habit of writing that is essential to anyone who wants to become a writer. In years to come you can rediscover your own life by seeing what you have preserved of your earlier thoughts and experiences. When you write every day about yourself and your immediate world, you will develop habits that will help you observe the greater world beyond yourself.”

Richard Marius, A Writer’s Companion 17 (1985).

May a person be convicted of homicide if the victim’s body is never found?

medium_5938168933The bonus reprints continue; this was originally published several years ago in First Draft, newsletter of the SinC Guppies chapter, then lived on my website in the Questions of the Month.

May a person be convicted of homicide if the victim’s body is never found? 

Yes. With no body, prosecutors must rely on other evidence to establish that the crime alleged occurred and the defendant committed it. Both direct evidence–such as confessions and eyewitness testimony–and circumstantial evidence–such as blood stains and testimony of related events–may be used.

The U.S. Supreme Court first acknowledged that a person could be convicted of homicide without a body in 1834. Of course, in modern cases, DNA evidence may be critical.

In a recent Montana case, prosecutors alleged that Martell severely beat the victim, Red Dog, then threw his body into the mostly frozen Missouri river. Witnesses testified to the beating. Searchers were unable to find Red Dog’s body, but did find his ripped jacket and bloody sweatshirt. A hunter testified to seeing blood stains in the road where the beating occurred. Prosecutors also relied on Martell’s written statement admitting that he instigated the fight and had told his partner in the beating that they “couldn’t let [Red Dog] go” alive.

In another case, prosecutors alleged that Moore shot Brisbin in Moore’s camper. Witnesses said Moore had called Brisbin and asked him to come to the camper; he hadn’t been seen since nor his body found. Within two days of Brisbin’s disappearance, Moore cleaned blood from his camper, discarded bullets and carpet, covered and repaired bullet holes, and spilled battery acid in the camper in an effort to cover and clean stains. A bullet was found under the floor of the camper. (The shooting and conviction occurred before DNA analysis became available.) On appeal, the court agreed with prosecutors that Moore’s actions showed consciousness of guilt, much like evidence of flight after a crime, and the evidence was relevant to the jury’s decision because it “tended to prove” both the commission of the crime and Moore’s responsibility.

Other cases have turned on testimony about death threats and years of domestic abuse, blood-spatter evidence, a bloodstained revolver, bits of tissue, recent life insurance purchases on the victim, and elaborate lies told to explain the victim’s disappearance.

In your stories, keep in mind that where there is no body, you must show that the crime occurred–that is, the victim is probably dead–as well as showing that your character committed the crime. The evidence you rely on must go directly to the heart of the case, the res gestae or “things done.” Put the missing person in direct contact with the defendant, as with Martell’s beating of Red Dog, or Moore’s phone call to Brisbin. If you use physical evidence from the homicide scene, put both victim and killer together at or near the scene. Complicate matters by involving another person, as in Red Dog’s murder, or with evidence suggesting that the victim often disappeared on his own for weeks at a time. Show that the killer had the opportunity to dispose of the body–or frustrate detectives with evidence that he had no time to hide it.

Because bodyless cases are hard to prove, they often turn cold. Your story may benefit from a tenacious detective or prosecutor, a forensic analyst, or a determined relative. Find ways to put your witnesses in a position where they need to talk–or need to stay silent. In real life, no body sometimes means no conviction. But in fiction, it can make for a terrific story.

Copyright Basics

I’m republishing here a few of the articles currently on my website before it undergoes a major revision. While I’m not a publishing lawyer, one thing any decent lawyer can do is research, then analyze and synthesize the results. Herewith, those results. 

COPYRIGHT BASICS Answers to the most frequent questions about copyright–how to establish it, avoiding infringement, and other issues

(First published in the Sisters in Crime Guppy Newsletter, First Draft, 2004 but still valid)

This month, by request, I’m straying slightly from my mission to provide legal information for use in fiction to discuss the basic principles of copyright law.

What is copyright and what does an unpublished writer need to know? Forget everything you think you know about copyright. In 1978, Congress enacted a new system which has since undergone further changes as a result of both Congressional action and Supreme Court decisions. Yes, 1978 was a while ago, but myths and assumptions take a long time to die. So euthanize yours, and read along with me.

Copyright, at its most basic, is the right to claim ownership of a creative work and earn profit from it. Copy, the word-within-a-word, fools us into thinking copyright pertains only to written works. Copyright principles apply equally to literary works, music (including lyrics), film and sound recordings, paintings, photos, architectural plans, and other works.

You may not copyright ideas, titles, names, phrases, slogans, common symbols (although trademark or service mark registration may be available), or processes (patent protection may be available).

Copyright gives its holder specific benefits. These include the exclusive right to reproduce the work, prepare derivative works (J.K. Rowling’sQuidditch Through the Ages or Harry Potter mugs), distribute the work by sale or license, and perform or display the work publicly. Transfer of ownership does not transfer the copyright unless expressly agreed in writing; an artist who sells a painting still owns the copyright and has the exclusive right to reproduce the painting in prints, posters, cards, t-shirts, or other media.

Copyright arises automatically as soon as a work is created. The work need not be completed or published, but it must be fixed in a medium. For literary work, of course, that means it must be written. You have automatic copyright in your partial outlines, rough drafts, and finely polished final copy. But you have no copyright to an idea or a plot outline kept in your head.

Copyright can be inherited; when an author dies, rights to her work, published or not, go to her heirs.

You don’t need to register your work to obtain copyright. The U.S. Copyright Office says this: “In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection.”

You don’t need to use the © symbol to establish copyright. The rule requiring copyright notice on the work has been eliminated for all works published since 1989. The word or symbol does give notice that the work is copyrighted, and thus can help make or defend an infringement claim, but use of the symbol is not necessary to establish copyright. If challenged, you can establish your copyright by showing creation through the work itself, drafts, outlines, journal notations, dates on computer printouts, and personal testimony.

If you use the symbol, the U.S. Copyright Office suggests this format, in a location that gives the reader reasonable notice:

©2004 John Doe

Some writers claim that agents & editors consider a writer who puts the © symbol on her work to be an amateur. I haven’t been able to confirm or rule that out. I have been told that most book publishers prefer that authors not register their work but let the publisher do so at the time of publication; that way, the copyright date inside the book is current and doesn’t cut sales by giving the false impression that a book is older or a reprint.

What are the benefits of registration and how do I register copyright? The chief benefit of registration is to establish a public record and make it easier to establish copyright if someone steals your work or accuses you of stealing hers. Other benefits include protection against illegal importation of unauthorized copies.

Registration requires an application and $30 fee for each work, plus copies for deposit in the Library of Congress. See the U.S. Copyright Office website for specifics and forms.

How long does copyright last? For works created on or after January 1, 1978, copyright lasts for the author’s life plus 70 years after death. For joint authors, copyright lasts 70 years after the last surviving author’s death. In a major change from prior law, copyright may no longer be renewed. You may think this short-changes authors, but the trade-off is that the term of copyright is now considerably longer and copyright holders can no longer inadvertently lose their rights. (Under prior law, copyright was 28 years with a 28 year renewal term, but renewal was not automatic and copyright was lost if not renewed during the original term).

Any work created before 1923 is no longer protected by copyright and has entered the public domain. That means the work can be quoted freely without permission. (You should still give credit, though, to avoid confusing your readers and triggering suspicions of plagiarism.)

Copyright obtained between 1923 and 1978 may be current or may have expired. Check with the U.S. Copyright Office for specifics on the copyright of older works.

What are the risks of sharing my work before publication or registration? Whether sharing work creates a risk of theft depends largely on how and with whom you share. Choose wisely. Submitting work to a reputable agent or editor rarely creates problems. At nearly every writers’ conference or workshop I’ve attended, a novice has expressed concern about theft of an idea; the published writers, agents, and editors uniformly respond that the writer’s concern marks him as an amateur and he should not worry. If you share pages with a face-to-face critique group or an online group in whom you’ve built trust, the risk is probably minimal. Sharing in a less secure environment, such as an online writers’ forum or chat room where you don’t know who is participating, is far riskier. Choose what you share carefully. If you have a concept for a book that’s never been done, it’s probably better to spend your energy writing the book than touting your concept.

Keep in mind that ideas, concepts, and facts cannot be copyrighted. Sometimes an idea is in the air. Maybe you mentioned in the bar at Left Coast Crime your idea for a mystery with a frozen body found in a glacier. The next year, Dana Stabenow published a Kate Shugak mystery in which a receding glacier reveals a dead body. She wasn’t in the bar with you and her book was already in the pipeline. Neither of you stole the idea from the other. Writer Les Standiford, head of the creative writing department at Florida International University, often testifies as an expert in copyright cases involving novelists and screenwriters. He reminds writers that similarities in story structure or overall concept do not mean the story was stolen; the focus in determining theft (copyright infringement) is on content and style — that is, how the writer develops the idea.

How much can I quote without violating copyright? What is fair use? Copyright gives its holder the exclusive right to use a work. However, an exception exists for limited use of quotes without authorization. A long-standing myth says four lines or fifty words can be quoted without fear. Slay that bugaboo now.

The key to determining whether quoting infringes copyright is whether the quoting is “fair.” In the landmark case, Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), Harper sold Time magazine the right to publish an excerpt from former President Gerald Ford’s forthcoming memoir. The Nationobtained a pre-publication copy and ran an article quoting three hundred words. Time cancelled the deal and refused to pay Harper. In finding againstThe Nation, the United States Supreme Court set out several factors to be considered:
— the purpose and character of the use. Quotation in a review, even if critical, is obviously fair, so long as it is accurate. Quotation for profit, as inThe Nation’s scoop, weighs against fairness.
— nature of the copyrighted work. Are you quoting historical facts or compilations, or fiction or poetry? The more factual and less creative, the more “fair” the use.
— amount and substantiality of use. The Supreme Court held that the 300 word excerpt quoted in The Nation — Ford’s reflections on pardoning Nixon — was the heart of the 200,000 word manuscript. Point: it’s not the length that counts, but what you excerpt and how you use it. Four lines from Crime and Punishment may be insignificant, but four lines from a Langston Hughes poem may be the bulk of it.
— effect on potential market or value. The Nation scooped Time for profit and market share. A reviewer or a professor giving a talk on literary criticism doesn’t have the same negative effect on market.

Bottom line: Think carefully about whether you need to quote a copyrighted work, how you are quoting, and how the copyright holder will view your quote. When in doubt, discuss getting permission to quote with your publisher. Contact the publisher of the work quoted or the Authors’ Registry, a clearinghouse for contacts and payments, or search the Copyright Office database.

Remember that copyright protection doesn’t apply to titles and short phrases. Even though the music and lyrics of “Proud Mary” are still under copyright, you may use the song title as a book title. Most readers will make the connection to “Proud Mary, keep on burning,” especially if a character mentions to John Fogerty or a Creedence Clearwater Revival concert, or if the plot involves a riverboat — or even a woman named Mary. But if you intend to quote the lyrics in the text or as an epigram or a chapter heading, copyright protection applies. Requesting permission in advance is a lot easier than responding to a “cease and desist” letter asserting an infringement claim when your book is already in print. A new author using a short quote in a paperback edition with an average print run may be given permission to quote at no or low cost. If the price is too high, revise to use only a title or an image, not a quote, or to quote only material in the public domain.

Copyright protection also applies to material used in a free publication. Most copyright holders will charge only a nominal fee for non-profit use. You might wonder why a wealthy musician or a Pulitzer prize winner would charge at all in that situation. Charging, even if only ten dollars, helps the copyright holder demonstrate that it is actively protecting its right to control the use of the work, which could be important in an infringement claim where more money is at stake. Remember that copyright law protects the holder’s right to decide how and where the material is used, not just the right to earn profits from the work.

If you’re writing parody, or rap music with sampling, the rules differ. Check them carefully.

What about photocopying? If it’s for your own use, relax. However, copying articles for archival use in a corporate setting is a problem if systematic or institutional; research the practice before continuing it. Brief excerpts for educational use are acceptable, but systematic use or creation of “course packs” for students is not.

(I am indebted to Crawford & Murray, authors of The Writer’s Legal Guide, for their insights into the Harper & Row decision.)

May I use a real play as background in a mystery set in a community theater? May the characters discuss the title, plot, their roles, or the author? Plots and titles can’t be copyrighted, so you can freely use both and let the characters in your novel discuss them. Novel characters may discuss play characters, but you cannot recreate a character from the play in your novel without permission. That is, you can write a novel in which an actor discusses playing John Proctor in “The Crucible,” and you could also write a historical novel featuring John Proctor so long as you based your work on historical research and not on the Arthur Miller play. But if a play is still under copyright, you may not take a character and use him as your own.

Fair use principles apply to quoting. You need permission to quote if you write a scene where characters recite lines from the play while rehearsing. But if your characters simply discuss how they’ll act out the confrontation between John and Mary Proctor without quoting lines from Miller’s play, no permission is needed.

Discussion of the author of the play is regulated not by copyright principles but by the law of libel and slander. The characters in the novel may freely discuss what they think Miller intended in a certain scene or the political context in which he wrote “The Crucible.” They may also discuss the facts of Miller’s own life, so long as they do so accurately. Opinions may be freely given so long as they are clearly opinion; a character may say “In my opinion, Miller’s over-rated” or “I think he was crazy to marry Marilyn.”

In addition to the sources already mentioned, you may be able to contact the copyright holder of plays through Dramatists’ Play Service, which publishes plays and licenses production rights.

Magazine publishers may copyright articles by freelancers as “work for hire.” Magazines commonly copyright an entire issue as one piece of work in the publisher’s name. This avoids the expense and trouble of registering copyright for each story in the name of the magazine (if staff-written) or the freelance writer. Typically, contracts specify that the writer is providing the story as “work for hire,” but has the right to publish the piece on her website, in an anthology, or after a specific period of time, in another publication. Magazine publishers rarely refuse permission to reprint if given credit for the original publication. Magazines often retain the right to publish the piece on its own website or in their own anthologies (e.g., “Sunset Magazine’s Guide to Western R.V. Travel”).

What copyright protection exists internationally? There is no “international copyright;” the laws of individual countries govern. Happily, most countries have signed treaties giving copyright protection to non-citizens, agreeing to enforce each others’ copyright laws, and providing an enforcement mechanism.

Full U.S. copyright protection is available to any person who, when the work is created, is a “national or domiciliary” (meaning generally a citizen or resident) of the U.S. or any country that is a signatory to international copyright treaties. U.S. copyright law also applies automatically to works first published in the U.S. or treaty parties. In short, most countries have signed international copyright agreements and honor copyright no matter what the author’s citizenship or residency.

If your work is first published abroad and you are a U.S. citizen or resident, your copyright is protected by both foreign and U.S. law. The treaties provide a relatively uniform system of protection.

If you sell foreign rights and your work is published in translation or in a different edition (e.g., a book first published in the U.S. is published in German for distribution in Germany or in a British edition with differences in spelling), a separate copyright exists in the new edition.

For more info, check out the U.S. Copyright office for circulars on specific topics or their Frequently Asked Questions. Or consult a legal reference book for writers such as The Writer’s Legal Guide, an Authors Guild Desk Reference, by Tad Crawford & Kay Murray (3d Ed. 2002, Allworth Press).  (When I spy a new edition, I’ll raise my hand.)

Emoticons as evidence?

The Law and Fiction blog is back up and running — I hope! To test that theory, I’m sharing a piece I heard on NPR yesterday that may sound like it came from The Onion, but I promise you, this is real stuff. Next Witness: Will the Yellow Smile Face Take the Stand? http://www.npr.org/2015/02/08/384662409/your-honor-id-like-to-call-the-smiley-face-to-the-stand

The piece mentions concerns over how to interpret an emoticon, and suggests that the author of the text or email be asked to state what he meant by the emoticon. Some texts or emails might come in to evidence through the recipient — like letters received, they would be admissible under an exception to the hearsay rule — but the recipient can only testify about what she understood the emoticon to mean, not what the writer meant, which would be speculation and hearsay.