Miranda Magic: Strengthening Your Story — guest Lisa Preston

Orchids coverGather round, children, as we welcome Lisa Preston to the blog. A veteran police officer and EMT, as well as a horse trainer and backcountry adventurer, she’s the author of the new novel ORCHIDS AND STONE. (Read more about Lisa, below.) Today, she’s sharing a cop’s perspective on Miranda warnings, and how you can use them to strengthen your story without breaking the law. 

Miranda Magic: Strengthening Your Story

I once read (part) of a novel by a best-selling author in which a character pleads guilty to murder then the rest of the plot develops over the succeeding criminal trial. Of course, this is not at all what would happen; there would not even be a trial. Only those who plead not guilty receive criminal trials.

Most legal goofs are not so egregious and will likely be missed by many readers, but the writer will lose credibility with readers who roll their eyes when a writer bends the legal system too far for the reader to ride along. As a retired cop, I am one of those readers who doesn’t tolerate fiction with significant goofs in legal procedure. As a writer, I was amused when an editor thought the police officer who had arrested my protagonist should have Mirandized her. This brings me to the two major misunderstandings I see writers struggle with on Miranda warnings.

[LAB: Just because the cops turn the proper noun Miranda into a verb by adding -ize does not mean you may do so in any other context. We shall tolerate this one grammatical misuse only!]

First, Miranda [LAB: Named for the U.S. Supreme Court’s 1964 decision in Miranda v. Arizona) applies to custodial interviews. The cliché scene of a cop snarling Miranda warnings the minute the suspect is handcuffed is not the way police Mirandize. To do so would create an adversarial approach, lessening the chances of the subject being cooperative. Moreover, there’s no reason to Mirandize if there’s no interview.

Whether or not an interview is custodial for the purposes of determining if Miranda warnings are required is not as straightforward as asking whether or not the person is under arrest. It’s possible to not be under arrest, yet be in custody. Here is the 3-pronged test to establish whether or not the interview was custodial:

∙ What did the officer believe (about whether or not the subject was free to leave at any time)? Was the interview subject in the back of a patrol car (from which he could not let himself out)? The officer knows that person is not really free to leave at any time; the interview is custodial and Miranda is required.

∙ What did the interviewee believe (about whether or not he was free to leave at any time)? Was the interviewee in a police station behind locked doors? If he was escorted deep within the building and doesn’t feel free to leave, Miranda is required.

∙ What would a reasonable person believe (about whether or not a person in that situation would feel free to leave at any time)? Was the interview subject first told by the police officer to sit down on the park bench? Maybe the officer is standing over the person now, asking questions. A reasonable person could find that custodial.

Second, there’s nothing magic about a police officer giving the Miranda warning; the key is that the interview subject must waive Miranda rights before being questioned. The 3-prong test for a clean waiver of the Miranda rights is a knowing, intelligent and voluntary waiving of the right to not talk and to not have an attorney present. If the officer read Miranda but the interview subject never waived his rights, then anything learned in the interview could be suppressed or not admissible in court because there was no waiver.

Of course, a writer can use good information to develop a story in any direction. Want the cop to be incompetent? Have him scream Miranda at the arrestee, scaring the subject right out of talking to a cop with an aggressive attitude. Want the cop to be dirty? Have him bait the guy into talking then turn on a recorder and catch what he says without benefit of a Miranda advisement and waiver. Want good procedure? Follow good procedure. Use reliable resources to clarify the legal rules that apply to your fiction. Leslie’s guide, Books, Crooks and Counselors, is an excellent resource, one I recommend to all writers. For details that touch on all senses in a given police scenario, talk to officers who have been in similar situations. We’re happy to share experiences with writers who want to strengthen their stories.

LisaPreston_01With one semester to go in high school, Lisa Preston moved to Alaska and almost immediately began mountain climbing. To improve her first aid knowledge, she took an Emergency Medical Technician course, which included ride-alongs on the Fire Department’s Advanced Life Support ambulances. She moved to Oregon for training and was soon back in Alaska, pulling 24-hour shifts as a paramedic.

After a number of years, she transferred to the Police Department. Her second career started with the position of street officer and she still claims it is the most demanding job in law enforcement. Faced with a choice between K-9 and detectives (she’d trained protection and tracking dogs), she became a detective, working in the Vice unit  and later in Crimes Against Children, with a special assignment as a Hostage Negotiator. She went back to the street as a sergeant, and eventually returned to investigations, supervising Internal Affairs.

She teaches three writing workshops (The Query Class; The Right Rewrite; Ambulances, Badges and Courtrooms). She’s an ultrarunner and rides solo for long distance on her AKhal Teke horses, exploring in the backcountry.

Her publishing credits include nonfiction on the care and training of animals Her thriller, ORCHIDS AND STONE, will be released in trade paperback, e-book and audiobook in April 2016. Connect with her on her website, http://www.lisapreston.com 

My favorite writing books

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A reader spotted this photograph I’d posted of dictionaries and other references on my desk, and asked what books I think every writer should have. Besides Books, Crooks and Counselors, of course.

Language and style references:

A good dictionary and thesaurus, of course. In addition:

GarnerGarner’s Modern American Usage, Bryan Garner (Oxford; 3d Ed, 2009) Many of us remember the old Fowler’s Modern English Usage. This is better—smart, American, and up-to-date, by a lexicographer who shies not away from opining.

Chicago Manual of Style, a recent edition. Most publishers rely on the CSM, and if you use it, you can’t be accused of serious stylistic errors, even if some publishers or individuals have other preferences.

The Elements of Style, Strunk and White (various editions). The classic. Dated, maybe, but still a useful guide to many nuances of good writing.

The Emotion Thesaurus, Angela Ackerman and Becca Puglisi (2012) Readers read for emotion, but writers often use cliches and limited descriptions to show emotion in action. The lists of physical signals, internal sensations, mental responses, and more will help you deepen your writing and show the internal and external signs of emotion in stronger, fresher ways.

I also love the Oxford American Writer’s Thesaurus, in part for its essays on language and word meanings, but it isn’t an essential.

You should have a decent guide to grammar, as well. Contrary to your grade school recollections, they need not be dull. What’s most fun is to read not a prescriptive guide, but a volume or two by writers who clearly love the language and have strong opinions about it. I loved Constance Hale’s Sin and Syntax: How to Craft Wicked Good Prose; any of her books will be a fun read.

I was recently reminded of the late William Zinsser’s On Writing Well; it’s a classic, geared towards nonfiction, but helpful to all serious writers. I hear tell that there’s an audio version, read by Zinsser, perhaps abridged, that a friend enjoyed tremendously.

Writers should love words and cultivate an interest in them. My favorite sources won’t necessarily be yours, but I do think any serious writer needs to spend time simply playing with words and reading writers who play with them. Read poetry. Listen closely to song lyrics. Heck, do the crossword puzzle and play along with Will Shortz, NPR’s Puzzle Master. It’s all words.

Writing Craft:

Lately, I’ve been diving into James Scott Bell’s craft books for writers, and highly recommend them. Plot & Structure (Writers Digest, 2004) is a detailed guide to structure, with excellent sections on plot problems, how to generate ideas, and more. It’s a book to use over and over. Write Your Novel from the Middle (Compendium, 2014) explores Bell’s observation that the best stories have a “mirror moment” or midpoint shift in context; he shows how both plotters and pansters can find that moment, and write to and from it. How to Write Dazzling Dialogue (Compendium, 2014) is another winner, and I’m eager to dive into his new book on voice.

The Fire in Fiction and Writing the Breakout Novel, both by Donald Maass (Writers Digest, 2009 and 2001), are classics every writer should reread regularly. I’ve just started his Writing the 21st Century Novel (2012), and love, love, love his exercises and suggestions for diving deeper into character and emotion. If you like his columns on Writer Unboxed, you’ll recognize the approach—much of that material is here.

For something totally different: Ted Kooser’s The Poetry Home Repair Manual: Practical Advice for Beginning Poets (2007) is a slim volume I love for its lessons on meter and rhythm, on finding the right word and the exact meaning, and on learning to love working a line. I also enjoyed The Art of Description by poet Mark Doty.

Other faves:

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Write Away, by Elizabeth George. I took a week-long intensive writing workshop with her eons ago, and it changed my writing life.

Self-Editing for Writers, Renni Brown and Dave King

Reading Like a Writer, Francine Prose

IMGP3435For Mystery Writers: 

Lee Lofland’s Police Procedure and Investigation  (Writers Digest, 2007)

DP Lyle, Murder & Mayhem: A Doctor Answers Medical and Forenscis Questions for Mystery Writers The book that inspired me to write Books, Crooks & Counselors.

Adam Plantinga, 400 Things Cops Know (Linden/Quill Driver Books)

Inspiration:

tnWritesOfPassageYou know the usual suspects: Anne Lamott’s Bird by Bird, Brenda Ueland’s If You Want to Write. And Steven Pressfield’s War of Art and other titles. A wonderful new entry is Writes of Passage: Adventures on the Writer’s Journey, ed. by Hank Phillippi Ryan, with essays by 60 members of Sisters in Crime, including me.

I find inspiration in reading a good writer. I hope you do, too.

More suggestions? Tell me in the comments.

Talking terminology: More on “not guilty”

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Last week, I gave you part one of lexicographer and legal writing guru Bryan Garner‘s comments on the phrase “not guilty” and its common-but-improper substitute, “innocent.” Today, his rant on another common misuse of the phrase, the implication that that a jury’s verdict of acquittal is itself “beyond a reasonable doubt,” rather than a finding that the prosecution did not prove guilt beyond a reasonable doubt.

Here’s what Garner says, in his daily usage blog.

“Not guilty beyond a reasonable doubt.”

This phrasing is ambiguous. The standard by which a jury decides criminal charges is this: a defendant is guilty only if the evidence shows, beyond a reasonable doubt, that he or she committed the crime. Otherwise, the defendant is not guilty. Thus, we say that a defendant was not found “guilty beyond a reasonable doubt.”

But it doesn’t follow that we should also say that a defendant was found *”not guilty beyond a reasonable doubt.” Is that “not guilty (beyond a reasonable doubt)” or “not guilty-beyond-a-reasonable-doubt”? The latter idea makes more sense — e.g.: “The question is whether a judge can reach a contrary conclusion on the second charge — deciding that though a defendant was not guilty beyond a reasonable doubt, he nonetheless probably committed the crime.” “High Court’s Highhanded Decision,” Chicago Trib., 26 Jan. 1997, at 20.

Yet many readers will misconstrue the phrase. Thus, regardless of the writer’s intention, some will think of * “not guilty beyond a reasonable doubt” as a strong vindication — rather than as the slight vindication it is (we, the jury, had the slightest bit of reasonable doubt, so we had to find the defendant not guilty). The writer might have gotten it right in the following sentence, but nonlawyers are likely to be misled: “When you know all the facts [of the O.J. Simpson case], you’ll see that the prosecutors failed to meet their burden of proof, and how, contrary to the court of public opinion, the jury arrived at their verdict of ‘not guilty beyond a reasonable doubt.’ ” Patricia A. Jones, “Uncensored: Authors Answer Questions Left with Simpson Verdict,” Tulsa World, 1 Dec. 1996, at G5.

If somebody is found not guilty, say “not guilty.” Omit the standard (“beyond a reasonable doubt”) to prevent a miscue.”

For more on reasonable doubt and how to recognize one, read the Q&A “I know the prosecution must prove a criminal defendant’s guilt beyond a reasonable doubt, but what is reasonable doubt?” in my guide for writers, BOOKS, CROOKS AND COUNSELORS: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver Books), winner of the 2011 Agatha Award for Best Nonfiction.

Party Time! Help me celebrate BUTTER OFF DEAD!

IMGP2970Time to celebrate! Join me for a launch party for BUTTER OFF DEAD, third in the Food Lovers’ Village Mysteries, from 5-8 p.m., Friday, June 26, at Frame of Reference Gallery in Bigfork, as part of the 3d annual (!) “Bigfork in Paint and Print” exhibit. Owner Derek Vandeberg has put together another terrific show featuring new and familiar artists and their renditions of the sweet town and stunning region that inspire my “Jewel Bay, Montana.” And Chef Dan Solberg is providing the food—from the book!

From the cover of BUTTER OFF DEAD:  “As the national bestselling Food Lovers’ Village mysteries continue, the merchants of Jewel Bay, Montana try to heat up chilly winter business with a new film festival. But their plans are sent reeling when a dangerous killer dims the lights on a local mover and shaker …

In an attempt to woo tourists to Jewel Bay and cheer up the townies, Erin Murphy, manager of the specialty local foods market known as the Merc, is organizing the First Annual Food Lovers’ Film Festival, popping with classic foodie flicks and local twists on favorite movie treats. But when her partner in planning, painter Christine Vandeberg, is found dead only days before the curtain rises, Erin suspects someone is attempting to stop the films from rolling.

To make matters worse, Nick—Erin’s brother and Christine’s beau—has top billing on the suspect list. Convinced her brother is innocent and determined that the show must go on, Erin must find who’s really to blame before Nick gets arrested or the festival gets shut down. And as the anniversary of Erin’s father’s death in a still-unsolved hit-and-run approaches, her own beau isn’t so keen on her leading role.

But the closer Erin gets to shining a spotlight on the killer, the more likely it becomes that she’ll be the next person cut from the program…”

Yes, THAT Christine Vandeberg! BUTTER‘s official release date is July 7, but my publisher, Penguin Random House, has given me permission to sell physical copies early this one night only. (Sorry, no e-books until July 7.)

And if you’re worried about getting to both the book launch and the Crown of the Continent Guitar Festival concert that same evening, don’t fret (pun intended) — I’ll be at the gallery early, with books, food, and wine!

“Justice for All” radio interview

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A few weeks ago, lawyer and radio host George Yates interviewed me on his radio show, “Justice for All.” We talked about my first book, BOOKS, CROOKS, and COUNSELORS, a guide for writers on using the law in their fiction. (And incidentally, great for reporters or anyone interested in learning more about the legal system.) We also talked about writing fiction, some current legal issues, and more. Enjoy!

(It’s a YouTube link, so it’s easy to pop on in the background as you do other things!)

The winner of SUEDE TO REST by Diane Vallere is…

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Shoes, clues, and clothes—Poly Monroe follows them right into trouble, and sews up a killer in Diane Vallere’s Material Witness mysteries. SUEDE TO REST (2014) will be followed by CRUSHED VELVET (August 2015, available for pre-order now).

Connect with Diane on her website, on Facebook, or Twitter.

 

 

 

 

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Ready to hear who won? Cheers to… MARILYN WATSON! 

Please send your mailing address to me at leslie (at) lesliebudewitz (dot) com by May 30 to claim your prize. Or else my supervisor will stare at me until I pick another winner!

Butter Off Dead (final)cat on desk#butteroffdead

Photo: Ruff the Cat, aka the Supervisor, the model for Mr. Sandburg in my Food Lovers’ Village Mysteries.

BUTTER OFF DEAD, July 2015 (available for pre-order now!)

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.

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.

Law & Ardor: 10 Common Mistakes to Avoid in Your Fiction

LAW & ARDOR: Writing about legal themes? An attorney identifies 10 common mistakes to avoid in your fiction (Originally published in The Writer, September 2013)

If you’re writing fiction, chances are a legal thread runs through your story. On screen or on the page, legal issues are often central to plots and backstory.

In mysteries and thrillers, past crimes may surface with present ramifications. Law enforcement officers and P.I.s need to know what’s legal and what isn’t. Amateur sleuths—the chef, gardener, or librarian—may start digging because they fear police won’t investigate or will nab the wrong suspect.

The law figures in mainstream and literary novels, too. And legal plots don’t require a crime. With a good storyteller, civil law can be gripping. Think of the possibilities in adoption (Jacquelyn Mitchard’s A Theory of Relativity; Ann Patchett’s Run), inheritance (Dickens’ Bleak House), even insurance (Double Indemnity, Billy Wilder’s movie based on James M. Cain’s novella).

But the law can be confusing, too. It changes constantly, and varies from state to state. Information and misinformation abound. Plus most of us, thank goodness, live happy lives without facing serious legal trouble. What follows is one lawyer-novelist’s list of common mistakes—and tips on avoiding them.

1. Using the wrong terms to identify prosecutors and courts.
On  TV’s Law & Order—and I love the show—the prosecutor is the D.A. In other stories, she may be the county attorney or prosecutor, the state’s attorney, even the people’s attorney. A  handle like commonwealth’s attorney might be shortened to “the prosecutor.” Does she try cases in District Court, Circuit Court, or Superior Court? If the terminology baffles you, call the court or prosecutor’s office, the state bar, or a law professor. You may even find a source to answer future questions.

2. Assuming law enforcement officers need a warrant to make an arrest.
Police don’t need a warrant to make an arrest in a public place, or in “exigent circumstances,” such as when an officer witnesses a crime or pursues a suspect. But police still need probable cause—that is, a reasonable belief, based on facts, that a particular person is responsible for a particular crime. “Mere suspicion” is not enough.

3. Confusing direct and circumstantial evidence.
Evidence is anything offered at trial to prove a fact necessary to the elements of the case—testimony, documents, or physical evidence like a gun or DNA test results. Direct evidence is evidence of a fact. Circumstantial evidence is evidence of a fact that leads to an inference or presumption.

An illustration: You tell your kids not to eat the brownies until after dinner. You see your son snatch one—direct evidence of disobedience. You don’t see your daughter touch the plate, but you spot chocolate smears around her mouth and crumbs on her shirt—circumstantial evidence.

In both civil and criminal law, circumstantial evidence may be enough to make the case. If the other side objects, the judge must rule on whether to allow (admit) it or not. The standard is relevance: Does it make facts that matter to the case more or less probable?

4. Giving every suspect a Miranda warning.
A warning is required only before custodial interrogation. In other words, only persons in custody need to be warned, and even then, only before questioning. Voluntary statements by persons not in custody or not made in response to questioning are admissible. A suspect who’s been warned may waive his rights and agree to talk. Of course, mistakes are fodder for defense lawyers—and writers.

5. Failing to distinguish between state and federal crimes.
A crime doesn’t get to be federal just because it’s important. Federal crimes are violations of federal statutes. They include many (but not all) drug and firearms offenses, kidnaping across state lines, and offenses related to securities or banking, immigration, war, terrorism, or interstate communications, or occurring on federal property. Regulatory offenses, such as pollution violations, may be federal crimes. If a crime violates state law, the state prosecutes. Some conduct may violate both state and federal laws, triggering a tug-of-war over jurisdiction. State court systems handle the majority of civil and criminal litigation—about 95%.

If your fictional crime is set in Indian Country, do your research. While the FBI investigates crimes on many reservations, as in Tony Hillerman’s Leaphorn and Chee novels, state authorities exercise full or partial jurisdiction on others.

6. Assuming a felon can’t vote or own a gun.
Restoration of civil rights—including voting and gun ownership—after a felony conviction is complex. The Sentencing Project, a national organization promoting sentencing reform, estimates that full or partial state bans—many applicable even after a sentence has been fully served—deny the vote to 5.8 million people and have a disparate racial impact.

While federal felons are barred from gun ownership for life, state law varies widely. Some states prevent or limit gun ownership by persons convicted of violent felonies, but allow it after the sentence is served, including probation. Waiting periods may apply. Court process may be required. Some states permit ownership of hunting rifles but bar handguns.

Debate rages over the constitutional implications of voting and gun restrictions and their effect on a person’s ability to re-enter society. Does your character live in fear of an ex-con ex-husband with a gun—or worry that she can’t buy a gun to protect herself because of her own record? Is your fictional legislator’s re-election in dispute because a faulty list prevents hundreds of ex-felons from voting?

Change will continue, so check your story state’s laws.

7. Referring to guilt in a civil suit for damages.
A criminal defendant will be found guilty or not guilty (not “innocent”). A civil defendant is either liable for the plaintiff’s damages or not—the concept of guilt does not apply.

Unlike criminal guilt, civil liability is not all or nothing. In a personal injury claim, the jury may decide that the plaintiff—the party bringing suit—contributed to her injuries by her own negligence. If her negligence reaches a certain level—typically more than 50%—she may be prevented from recovering damages. Multiple defendants may share liability.

Picture a slip-and-fall: A shop owner fails to shovel her sidewalk and allows ice to form. A woman falls and breaks her arm—but she walked there daily, knew the danger, and was on her phone. A neighboring shop owner had promised to shovel, but forgot. Who’s liable, meaning who pays? The jury decides.

8. Sentencing a defendant minutes after a criminal conviction.
Sentencing is a separate proceeding, usually held after a pre-sentence investigation by a probation officer or other investigator (terminology varies). Prosecutors and defense counsel need time to review the report and make recommendations. A few weeks is typical. Sooner is possible—Casey Anthony was sentenced a few days after the verdict, but the charges she was convicted of were relatively minor and circumstances may have triggered an expedited proceeding.

Sentence may be imposed right away if a defendant enters into a plea agreement—but only after lengthy negotiations that include evaluation of all the factors that go into a pre-sentence investigation.

If you need sentence imposed quickly to get your character to prison, build in facts that let you do so. Just don’t let your fictional judge hear the verdict and impose sentence without taking a breath.

9. Allowing lawyers—or their clients—to argue with the judge, especially after she’s ruled.
Don’t do it—not if you care about your characters or their case. But if you want to irritate your fictional judge, go ahead. Your chances of success are excellent.

And don’t let your characters interrupt in court, unless you want them hauled to the slammer for contempt.

10. Introducing new evidence on appeal.
Appeals are decided strictly on the record below—meaning the evidence, including testimony, and legal arguments. Parties to an appeal may not present new witnesses or argue legal issues not previously raised. As part of its decision, though, an appellate court might order the trial court to reopen a case to consider evidence or arguments previously excluded.

In a criminal case, new evidence may surface weeks, months, even years after conviction. Other procedures exist to ask a judge to reopen a case after the appeals process has ended.

Obviously, mistakes happen in real life, which is why lawyers file motions to suppress evidence or dismiss charges (in criminal cases), motions to exclude evidence or dismiss claims (the civil terminology), and appeals. But mistakes also add to the drama and create great opportunities for tension and conflict.

Is it ever okay to make a mistake on purpose, to fool the reader? Not in my book. Exaggerate a bit for drama, sure, but deliberately building a story on a faulty premise breaks faith with the reader. As prosecutor turned novelist Marcia Clark said in a panel discussion on forensics in fiction, “The more we tell the truth, the more dramatic it is.” We don’t need to lie about the facts to tell a good story—we need to find the story they tell.

Writers who take time to check legal terms and principles will discover terrific opportunities to twist, deepen, complicate, or simplify their stories. Getting the details right can make all the difference.

 Tracking Down Those Pesky Details

The National Center for State Courts website includes directories of all state court systems with court structure charts, and of public defender systems.

The Sentencing Project map tracks state incarceration, probation, parole, and disenfranchisement rates.

The NRA maintains a directory of state gun laws.

The American Bar Association charts summarize state statutes on domestic violence, stalking, protective orders, and related issues.

– For state-by-state specifics on recording conversations, see this guide from The Reporters Committee for Freedom of the Press.

The FBI maintains a directory of state and tribal sex offender registration laws.

Leslie Budewitz, a practicing lawyer, won the 2011 Agatha Award for Best Nonfiction for Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure. Her  mystery Death al Dente is set in Northwest Montana, where she lives.

Next month I’ll post the sidebar to The Writer article: my list of 10 great novels on legal issues. 

Talking terminology: “Trespassers will be prosecuted”

“Trespassers will be prosecuted.”

GarnerDo you know Bryan Garner, author of Garner’s Modern American Usage? You don’t? Get thee to his blog immediately. Subscribers get an entry or two a day from his usage manual, a resource every writer should have and rely on, and a quote about language, speech, or usage.

Garner also teaches lawyers how to write better. His books and seminars are popular, but what I count on are his “Law Prose Lessons,” aimed at increasing clarity in legal writing. This one I’m quoting in full, because the distinction he notes is often mistaken in novels and news accounts as well.

“”Trespassers will be prosecuted.” This phrase, which most readers would construe as referring to criminal proceedings, usually expresses an untruth. In most states (Louisiana is a notable exception), trespass to land is ordinarily a tort — not a crime. Although the landowner can sue, the district attorney won’t prosecute. But a trespasser who causes damage, as by trampling crops or breaking windows, can be criminally prosecuted.”

A tort, readers of Books, Crooks & Counselors will recall, is a civil claim asserted by one individual against another, as opposed to a crime, a violation of criminal law, the rules of society as agreed upon by the state or federal legislature and enforced by the prosecutor (sometimes, but not always, called the district attorney), on behalf of society as a whole. So if you go walking or hunting on private property, you won’t be prosecuted by local authorities, although the property owner could sue you. But if you break into a house, expect to be charged with the crime of trespass, and maybe more.