Stolen Evidence

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This one was originally published in 2009.

STOLEN EVIDENCE: Is stolen evidence admissible in court–and how will it affect the case?

In a mainstream novel I recently read–and enjoyed–a legal secretary tells the protagonist that an object he took from a murder victim’s home can’t be used because stolen evidence is inadmissible.

Now that’s just pure fiction. Nothing in the Rules of Evidence precludes the use of stolen evidence–unless it was stolen by the police, which is a whole ‘nuther matter, and not one we’ll talk about today.

So, what should have happened when the client’s son walked into the lawyer’s office with stolen evidence? First, the secretary should have been very careful what she discussed with him. While it’s tempting to share information with family members, the attorney-client relationship is with the client, not the family. The lawyer’s obligations are to the client–regardless who’s paying the bill. That may mean drawing some lines–not always easy, or comfortable. More often, it means seeking and accepting information from relatives, while exercising extreme care in what is said in return. The client gets to make the final decision, and should be consulted before critical information is shared. Revealing information to a non-client could also violate the attorney-client privilege, which belongs to the client and is waived if the information is shared with a third person. As well, relatives don’t always have the same goals and interests–especially if the evidence could implicate them, or someone else close to them. Ratchet up conflict by creating relatives who refuse to be left out of the loop.

Keep in mind that staff are bound by the same rules as lawyers on issues like confidentiality and conflicts of interest.

Next problem: The secretary should not have made a pronouncement about what’s admissible in court and what isn’t. Experienced legal secretaries can be very knowledgeable, but good ones are careful not to step into the role of the lawyer and to avoid offering legal opinions. To her credit, the fictional secretary did tell the client’s son to show the object to the lawyer, and he promptly did. The lawyer quickly recognized its significance to the defense. That’s when things get tricky.

An object has evidentiary value because of what it demonstrates or suggests–that is, whether it makes the existence or non-existence of a material fact more or less probable. Whether the object was stolen won’t usually affect that determination. But the theft may raise other questions: where has the item been, has it been tampered with, why was it stolen, and is the thief credible? In other words, as lawyers say, “it goes to the weight” of the evidence, not its admissibility–that is, how much credence and value the jurors should give it.

In that story, the criminal investigation was incomplete, but far enough along that the crime scene had probably been released. The police either did not find the object–or more likely, given its nature, didn’t think the item had any evidentiary value. Under the U.S. Supreme Court decision in Brady v. Maryland (1963), prosecutors have an obligation to disclose to the defense any “exculpatory evidence”–meaning material evidence helpful to the defense–even without a specific request. Failure to do so is reversible error, if the appeals court concludes that the evidence was material and could well have created a reasonable doubt about guilt. In Brady, a murder case, the prosecution withheld a co-defendant’s statements admitting the actual killing. Failure to disclose was clearly reversible error. In the fictional case, if prosecutors had the object and knew its potential impact, they would have been required to disclose it.

But the defense lawyer quickly recognized the object’s import. So what are his obligations? Brady doesn’t apply to the defense. Why? Because in a criminal case, the government has the burden of proving its case beyond a reasonable doubt, while the defense doesn’t have to prove–or disprove–a thing.

Still, defense counsel may be required to disclose the evidence in the discovery process, and even if not, may choose to do so for other reasons. “Discovery” is the legal process of exchanging information about the case. In olden days, trial was often by surprise, but in the modern era, with codification of the Rules of Civil and Criminal Procedure and the Rules of Evidence, the system trends toward disclosure. Discovery is limited to facts–neither party has to reveal its strategy or arguments.

In some states, the rules require reciprocal discovery. Others require advance disclosure of persons known to have relevant information, or of witnesses, exhibits, and physical evidence the parties intend to use at trial. Written notice of certain defenses may be required, most notably the intent to rely on an alibi. Disclosure allows the other side to investigate and respond appropriately. Disclosure also promotes “judicial economy”–meaning that trials will proceed more smoothly and quickly, and unnecessary trials will be avoided.

Plus, disclosure could give defense counsel sufficient grounds for dismissal, or for negotiating a plea to a lesser charge.

Back to the fictional case: If the crime scene hadn’t been released, the defendant’s son could be charged with tampering with evidence–or the equivalent local crime. Prosecutors could charge him with theft. Make it more or less likely depending on how much heat you want to put on your character. The lawyer could also be charged with receipt of stolen property, another reason why he or she would probably report the incident to the prosecutor. Receipt of stolen documents may be one charge in a possible prosecution against WikiLeaks, for publication of documents known to have been obtained without authorization.

Bottom line: Be careful with your assumptions. Stolen evidence may be admissible–if it’s relevant. Problems in its acquisition go to weight, not admissibility. Court rules and ethical obligations bind staff as well as lawyers. An attorney’s obligations are to the client, not the family. Prosecutors must disclose “exculpatory evidence.” Local rules on disclosure of other evidence vary–check them out. And remember that there may be good reasons for disclosing information even when not required, if it can help the client. At any point along the way, things can go wrong–and for a fiction writer, that’s good.

Domestic Abuse

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in 2009.

DOMESTIC ABUSE: Legal issues to keep in mind when writing about this all-too-common situation

A writer whose plot involves domestic abuse posed several questions.

Consider this scenario: 
A woman is in a violent marriage that’s getting worse. Her husband assaults her one night and is arrested. At his initial appearance in court the next morning, bond is set at $1,000. He posts bond by credit card and after spending one night in jail, goes home. Later, as a condition of a plea agreement, he agrees to attend anger management classes and AA. His wife reconciles with him, but is angry with her family and friends for making clear that they do not trust him and think she should leave him. As a result, she becomes more isolated, and one night, when he decides he’s tired of the wagon, of people telling him what to do, and of her disapproval, he drinks a half-rack of beer and most of a fifth of whiskey and beats her badly. The oldest child, just twelve, calls 911, and police and EMTs respond. She’s taken to the hospital, he’s taken to jail, and the kids are taken to a neighbor’s house to wait for their grandparents to arrive from out of town.

What’s going on, and what’s next? 
Pre-trial release: The amount of bail and other terms will depend on the charges and circumstances. In this scenario, the charge is probably a misdemeanor and a first offense. Potential charges in domestic violence vary widely, depending on the facts. Some are misdemeanors, others are felonies of several types, each with its own elements–the minimum facts that must be proven in court. Terms also vary: is it partner assault, domestic assault, family assault, simple or aggravated, first or second degree, or something else? Check the law in your story state.

Many factors affect pre-trial release, but the amount of the bail bond might be low if the victim isn’t seriously injured, the accused is particularly contrite, and no drugs, alcohol, or weapons are involved. Another factor is whether the accused has a steady job and ties to the community–not because that makes him less culpable, but because the primary purpose of bail is to ensure that a defendant shows up for later court appearances and those ties make him less of a flight risk.

And yes, some courts do indeed accept credit cards.

Release on bond typically involves numerous conditions. The main one: no contact with the victim. But if she tells the prosecutor she doesn’t want that–that she’s sure it won’t happen again, he’s really a good man but was upset over a problem at work or with one of the kids or she made him mad–the prosecutor won’t request that condition, because it’s clear she wouldn’t honor it. And the prosecutor wants her trust–there’s no point alienating the victim. If she’s in court, the judge might ask her if she wants him ordered to stay away. Some women genuinely believe the problem won’t recur. Others fear that a no-contact order would just make things worse. Some want limited involvement with police, courts, or government agencies for their own reasons; some fear the possibility of a Child Protective Services investigation; and others worry about finances or keeping their children from their father. Other typical conditions of release: refrain from drinking or using drugs, attend AA or NA, make all court appearances, and cause no further trouble.

Protective orders: I want to distinguish between a no-contact order issued after criminal charges have been filed or after a criminal conviction and a protective order. The purpose of a p.o. is to prevent future violence. According to statistics reported by the ABA (link below), 86% of women who received a protection order state the abuse either stopped or was greatly reduced.

The requirements and terms depend on the law in your story state, but a p.o. typically requires a showing that violence has occurred in the past and could occur in the future. (See the state-by- state info in the ABA summary of statutes, link below.) It does not require criminal charges or a criminal conviction. Common terms prohibit contact with the applicant and any minor children, including phone calls and emails as well as physical contact, harassment, and going to or near a school or day care that a minor child attends or to an adult’s work place or church. Protective orders may also prohibit use or transfer of real or personal property, and in some states, can be used to establish temporary child support. The person to be protected must apply for the order by going to the local prosecutor, legal aid office, or court–usually justice court. You can’t get a p.o. for someone else, except that a parent may obtain a p.o. covering minor children. A violation doesn’t trigger arrest; the person who obtained the order must go to court to request that the person restrained be found in contempt and fined or jailed.

All too often–again, because of the complicated relationships–the person getting the order ignores violations, or ignores it herself, which makes later enforcement much harder.

Going to trial: So charges are filed and the case is set for trial. Cooperation problems can crop up again. If a victim refuses to testify or threatens to recant her story, then prosecutors must weigh the evidence and decide whether they have enough to make the case without her testimony. Police investigation, eyewitness testimony, and medical reports may be enough–especially with photographs. Jurors will wonder why they’re not hearing from the victim, but most will be savvy enough to figure it out.

It’s not uncommon for a woman to testify at trial and recant her prior reports of violence. Some courts allow experts, such as social workers or psychologists working in the field of domestic violence, to testify that this is typical behavior. The expert can’t comment on the witness’s credibility or say that she was actually assaulted–both are decisions for the jury–but can offer a explanation for inconsistencies in testimony.

Note that the spousal privilege does not apply in criminal cases involving charges of violence against a spouse or the minor children of either spouse. (My column on spousal privilege discusses it in some detail; see my website.)

Sentencing: As I mentioned previously, the charges possible in domestic violence vary widely. So do the sentencing ranges and options. Some states give courts a wide degree of discretion in sentencing; others dictate mandatory minimums and establish aggravating factors. The particular circumstances are critical. What happened? What injuries occurred? First offense or repeat? Was a weapon involved? What about drugs or alcohol? Were both partners violent, or just one? Some couples develop a relationship based on mutual abuse and violence, making intervention much harder, and complicating the legal situation.

Suspended sentences are common, either on a plea agreement or after a conviction at trial. Release will include extensive conditions, such as successful completion of a drug or alcohol treatment program, anger management sessions, and restitution.

Other options: What do prosecutors do when faced with a woman who needs the financial support her husband or partner provides to care for herself and their kids? This is a tough one. The biggest problem prosecutors face is lack of cooperation from the victim. Because of the complicated emotional situation in abusive relationships, many women are reluctant to end these relationships. Often, the victim doesn’t want the man jailed–she just wants the violence to stop. If an assault has caused serious injuries, it’s hard for a prosecutor to accept a plea agreement that doesn’t involve jail time. A typical solution is a plea agreement with a sentence length appropriate under the statutes and circumstances, but with most of the time suspended. That way, the defendant serves some time in prison but will be released with supervision by local probation officers. If he violates the terms of his release, or commits another assault, he can be charged with violating those terms as well as for any new crimes–a strong incentive to keep one’s nose clean.

Prosecutors often refer victims to social services. These run the gamut, from counseling services to assistance with food and housing to organizations that supervise visitation or transfer of children between estranged or hostile parents.

The “battered wife defense:” Some women strike back. The “battered wife defense” to a homicide charge is a variation of self-defense, and requires proof that the accused was in imminent danger, and that her own actions were intended to protect herself.

Resources:
National Coalition Against Domestic Violence http://ncadv.org/
American Bar Association Commission on Domestic Violencehttp://new.abanet.org/domesticviolence/Pages/default.aspx survey of recent statisticshttp://new.abanet.org/domesticviolence/Pages/Statistics.aspx including prevalence, stalking, same-sex violence, recidivism, and workplace violence, as well as breakdowns by race and ethnicity, and age. Its resources pagehttp://new.abanet.org/domesticviolence/Pages/Resources.aspx includes a summary of state statutes and resources for survivors and attorneys.

 

Classic or Cliché — Paul Newman and the art of the detail

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. 

CLASSIC OR CLICHE — a brief meditation on the death of Paul Newman–and what his roles say to writers

Remembering an actor who got the details right.

When Paul Newman died, I was reading Empire Falls, Richard Russo’s Pulitzer Prize-winning novel about life in small-town Maine. I’d very much enjoyed the HBO series – rented on DVD – featuring Ed Harris as the protagonist, Miles Roby, and Newman as his father, Max. Newman so embodied the role that as I read, I pictured him every time Max appeared. It’s a classic role – the charming reprobate, a sometime-house painter who abandoned his wife and young sons for months at a time but always seemed to expect them to be waiting – and they were. Now that his wife is long dead and his sons are grown, he treats them no better. Without a car and always short on money, he bums rides then rummages in Miles’ glove box for cash. He pitches in at the café his sons run, cheering up his teenage granddaughter and enjoying wreaking unnecessary havoc. He knows exactly what buttons to push on his hyper-responsible oldest son. You want to smack him. But when he and the town’s senile, retired priest run off to Florida in the parish car, the moment is so unexpectedly perfect that you almost cheer the old guys on.

Then I remembered Newman’s performance as Frank Galvin in “The Verdict,” the washed-up alcoholic lawyer who takes on a loser of a case and then discovers that buried in the boxes of medical records is evidence of appalling hospital malpractice and a cover-up by the Catholic church. Galvin cleans up, dries up, falls down, falls off the wagon, and eventually redeems himself – and wins the case. Along the way, he’s seduced by a beautiful woman, sent to set him up and trick him up – and it almost works. A classic story that goes all the way back to David and Goliath.

Classic – or cliche? What makes the difference? Newman’s performances – and Russo’s writing – demonstrate that it’s the details that make the characters come alive. Russo’s Max Roby is a retired house painter, and he never had much use for the Catholic church that gave his wife comfort. His son Miles is combining penance and community service by painting the church for free – but he hates ladders and that peeling siding of that spire terrifies him. Max pokes and prods Miles about his fear of heights, not very nicely. But he knows that Miles has constrained his own life in part out of fear, and needs to push through it. The author doesn’t spell that out – it’s in the characterization. Eventually Miles does stand up to Max, he does go high up on the ladder, and he gains the courage he needs to pull off a pair of rebellious acts that enable him to save his daughter and change his own life. Small actions, tiny steps that lead inexorably to redemption – not of Max, who isn’t looking for it, but of Miles, who needs it to fully live his own life. The devil may be in the details, but so is the glory.

Newman described himself as a character actor who looked like a leading man. I think he meant that he liked to lose himself in the details and become someone else – he wasn’t always playing himself. As writers, we need to give our characters those same opportunities. What I particularly like about Empire Falls – and Russo’s latest novel, The Bridge of Sighs – is that most of the characters are ordinary people dealing with ordinary problems, but the writer is willing to go beneath the surface and explore each individual character’s particular thoughts, feelings, motivations, and reactions. To go beyond cliche. And that’s what makes a classic.

 

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.

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.)

The Saturday Writing Quote — Joseph Campbell

03_Flowers1_Watercolor_WEB“Just as anyone who listens to the muse will hear, you can write out of your own intention or out of inspiration. There is such a thing. It comes up and talks. And those who have heard deeply the rhythms and hymns of the gods, the words of the gods, can recite those hymns in such a way that the gods will be attracted.”

— Joseph Campbell, American mythologist, teacher, writer (1904-1987)

Jurisdiction — Who’s the Law Where?

flathead-kalispell-courthouseThe 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.

Jurisdiction — Who’s the Law Where?

A writer asks for clarification of the jurisdiction – that is, the authority – of city, county, and state law enforcement agencies. Variations abound, but a few general definitions apply:

  • city law enforcement agencies, usually called the Name-the-City Police Department, have authority within the city limits. In larger cities, police departments run their own jails, while in others, detention services are contracted to the county. A very small town may contract with the county sheriff for full-time or part-time services, e.g., for weekend or vacation shifts.
  • county agencies, typically called Name-the-County Sheriff’s Department or Office, have jurisdiction in the unincorporated areas of the county – that is, everywhere except the incorporated cities and towns. The term sheriff derives from the medieval English shire, or county, and reeve, or official, meaning a local official responsible for executing legal processes and court orders.
  • state agencies, home to most variation. Some states have state police departments with broad investigative authority; others have highway patrol agencies, whose authority is generally limited to traffic investigations and violations. Most states also have some kind of criminal investigation agency that assists local agencies, especially those in smaller towns, or when a key member of a department has a conflict of interest.

Another option – a consolidated city-county department – works well when a city occupies the bulk of a county, leaving the county with a law enforcement obligation, often over widely scattered areas, but a limited tax base to support its budget.

In many areas, 911 and dispatch services are consolidated to avoid duplication and improve coordination of law enforcement, emergency medical services, and fire protection.

Inter-agency cooperation is a must, and takes many forms. When a chase approaches jurisdictional limits, nearby agencies are notified and asked to stand ready to assist; a suspect may be arrested in one community but turned over to another where he will be held and tried. Major case investigations often cross city or county lines. While a Seattle police officer, for example, could legally question a suspect in Bellevue, professional courtesy dictates that local law enforcement be notified – particularly helpful if the situation deteriorates into violence or requires an arrest. Other interagency cooperation is more formal, via written agreement.

Joint task forces are formed to address shared problems. Several counties in northwest Montana formed a Joint Drug Task Force to deal with regional drug manufacturing and distribution; it also includes representatives of ICE, the U.S. Customs and Immigration Enforcement agency, and tribal police.

Photo: This image of the old Flathead County Courthouse, now a county administration building that sits literally in the middle of the road, comes from the Montana State Historical Society collection of historic postcards.