Writing about the law — and a common mistake to avoid

Books, Crooks, and Councelors

At the Pikes Peak Writers Conference last April, I met author and teacher Carly Stevens, who asked me to chat with her on YouTube about writing about the law and lawyers, as a followup to my PPWC presentation on common mistakes writers make about the law. Our conversation is now up, and I hope you enjoy it as much as I did. (We also talked last summer about building your characters, based on another PPWC presentation I gave, and you can watch or listen to that interview, Writing Better Characters, too.)

Carly and I talked about the types of lawyers and practice, the relationships between lawyers, discovery (that is, how evidence is shared before trial), and some of the common mistakes writers make about the law. You can revisit my blog post on common mistakes as well, which covers a few topics she and I didn’t discuss.

I came across another common mistake recently — one not on the list only because it has so much competition — and that’s the availability of juvenile records. Many people assume juvenile records are automatically sealed or destroyed at a certain age, but that’s not always true. State law varies tremendously, as do the records themselves. Factors include the nature of the crime — was it a misdemeanor or felony, a crime against property or a person? Repeat offender status. Age. Whether the offender was sent to a juvenile prison. Other factors may be considered, depending on state law.

Even if the records are sealed, a potential employer may have some access. Law enforcement retains access to most juvenile records, unless officially expunged. This state-by-state summary of laws relating to juvenile records from the National Conference of State Legislatures is enormously useful.

Do your homework!

Law & Fiction — death penalty update

Brass desk lamp with green shade, desk, binder open to a printed manuscript
Leslie’s desk

After a 2014 gubernatorial moratorium and a 2018 state Supreme Court decision invalidating the death penalty, the Washington State legislature has now passed and Governor Inslee has signed a bill officially abolishing the death penalty in Washington State. Here’s more from the Seattle Times, including the role of racial bias in the decision. Twenty-three states have now abolished the death penalty; Oregon has a moratorium.

Books, Crooks, and Councelors

Several states, including Idaho, have reinstituted the firing squad, in response to the increasing difficulty getting the drugs used for lethal injection.

More on the death penalty, its history, and the factors used in imposing it in Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure.

Writing Wednesday — voting rights and felony convictions (an update)

Books, Crooks, and Councelors

In my guide for writers, Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver, 2011), I gave a quick overview of the issues related to voting by those with a felony conviction, noting that this was a rapidly changing area.

Last month, I attended a Washington State Bar continuing legal education seminar on voting rights and voter suppression, and one resource cited was this report from the Sentencing Project, the national organization promoting sentencing reform that I cited in Books, Crooks, titled Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction. If your story involves any issues related to voting, racial justice, or post-prison life, or you’re simply interested in these issues, you’ll find it a valuable resource.

A few findings, to give you a taste:

  • “As of 2020, an estimated 5.17 million people are disenfranchised due to a felony conviction, a figure that has declined by almost 15 percent since 2016, as states enacted new policies to curtail this practice. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, 5.85 million in 2010, and 6.11 million in 2016.
  • One out of 44 adults – 2.27 percent of the total U.S. voting eligible population–is disenfranchised due to a current or previous felony conviction.
  • One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans. Over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population.
  • Approximately 1.2 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.”

Remember that the law varies from state to state and is always changing. Do what you can to get the facts about the law right.

Law & Fiction — revisiting two topics

LAB in the back of a police car at Writers’ Police Academy (2016), smiling because I knew I could get out any time

From time to time, I write about legal issues writers may want to use in their fiction, or mistakes to avoid. I spotted two recent articles on topics I wrote about in Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver, 2011). Whether you’ve read the books or not, you may want to know a little more about when teenagers can be charged as adults, as described in this NPR piece about the teenage shooter in Oxford, Michigan, which provides a good overview. The trend toward “Raise the Age” legislation is new since BCC; many states have now set a presumptive age, typically 17 or 18, at which a juvenile can be charged as an adult; below that, such a charge is still possible but certain criteria must be met.

I also wrote about drug courts, an approach aimed at keeping nonviolent offenders charged with drug offenses out of jail and on the road to recovery and productivity. This piece from the Washington Post focuses more broadly on addiction in northern New Mexico, but the highlights on the drug court and its judge are worth a look. (It’s part of a Post project on the importance of regional stories and what is or could be lost when local papers shut down, another important topic.)

As always, check law and practice in your story state. We may be writing fiction, but getting the facts right matters.

Law & Fiction — Questioning juveniles

In a recent discussion in a writers’ forum on how and when police could question a person, a writer made the excellent point that what we’d been saying is how the law SHOULD work, but that it often DOESN’T work that way, especially in communities of color or of lower socioeconomic status. Further, she stressed, we as writers should not “imply an equity that does not exist.”

So when I saw this blog post from the Washington State Bar Assn on a new ordinance in King County (which includes Seattle), I thought the writers among you would be interested — readers, too, but for different reasons. The ordinance requires police to connect any youth under 18 with a public defender before questioning or searching them, except in emergencies where police “reasonably believe the information sought is necessary to protect someone’s life from an imminent threat and the questioning is limited to that purpose.” The post, by a public defender, summarizes the problem, including statistics, and the tragic shooting that led to the ordinance. Kids’ brains aren’t fully developed yet. They often lack the judgment or experience needed to handle difficult situations. They don’t always react the way adults think they should – and it’s up to us as adults and as a society to remember that.

This may already be the law in your story state – although I am a member of both the WA and MT bars, I live and practice in MT, where law enforcement has long been prohibited from interrogating anyone 16 or younger without an attorney, parent, or guardian present. Even so, we need to remember as both citizens and writers that it doesn’t always work that way.

Order in the Court — online RWA class

Writer friends, I’ll be teaching an online class on using the law in your fiction beginning October 1, through the Romance Writers of America “Kiss of Death” chapter. The class is called “Order in the Court & in Your Work.”
We’ll be covering the following:
1. Introduction
2. Overview of the judicial system
3. State prosecutorial systems
4. Crimes
5. Miranda warnings
6. Probable cause
7. Evidence
8. Trial process
9. Sentencing
10. Civil litigation
11. Appeals process
12. Legal ethics and discipline
13: The Law on TV Today: Three Guest Authors Rant and Rave

The class will include some assignments and regular Q&A opportunities. Register for Order in the court & in your work here. RWA membership is required.

See you there!

Stupid Criminal Tricks — texting edition

Cyberbullying Doesn’t Pay – Escapee Returned to Jail After Taunting Detective Via Text

I haven’t posted a Stupid Criminal Trick in a while but this one is worth the wait. Short version: If you escape from jail, don’t text the detective handling your case with a homophobic slur and an anatomical suggestion. A search warrant for your cell phone data is a sure bet, and it’s an equally sure bet that said detective will use said data to track you down and haul you back to the hoosegow. (How did the man escape in the first place? Turns out that while being processed after his arrest, he somehow managed to join a line of inmates being processed for release. Oops.)

Law & Ardor — Common Mistakes Writers Make About the Law

WPA 2016 2Earlier today, I was interviewed by Wendy Kendall and Julie Cooper for their terrific podcast series, Kendall and Cooper Talk Mysteries. Here’s the link. We talked about Books, Crooks & Counselors, and some of the common mistakes writers make about the law. And next month, I’ll be the guest speaker for the Orange County (CA) chapter of Romance Writers of America, talking about those mistakes. So I thought it a good time to reprint my article from The Writer on that subject — although I’ll confess, the list has grown a bit in recent years!

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.

(Photo: me with driving instructor Colleen Belongea at the 2016 Writers’ Police Academy)

Criminal Law — a few topics for writers

The November issue of the NW Lawyer, the journal of the Washington State Bar Association, focuses on criminal law, and as I read it, I thought several of the articles might be useful for writers, especially mystery and crime writers. Topics that caught my eye:

Police Dogs: Best Practices for Law Enforcement

In the Footsteps of Clarence Darrow: Fiction and Reality for Modern Criminal Defense Lawyers

What if Your Client is Actually Guilty? A Day in the Life of a Criminal Defense Attorney

Federal Prosecution Trends in Washington

Weighing the Evidence at Trial: A New Approach to Eyewitness Identification

There’s more, but these were the topics I thought might prompt story ideas or give you a better idea of the realities of criminal prosecution and defense.

Admissibility of past convictions #lawandfiction

I spotted this blog post on the NW Sidebar, a publication of the Washington State Bar, titled Witness Backgrounds: What’s Admissible in Washington vs. Oregon, and thought it raises some interesting possibilities for fiction writers. (I’ll wait while you read it.)

In short, every state sets its own standards for what criminal history can be brought out when a witness testifies in court. But these are good examples of two general approaches — one more flexible, one more stringent, though in each state, statutory limits are the starting point.

How can you use this in your story? Is a witness afraid to report a crime, or to speak honestly to police, or to testify in court because of her history? How will your fictional prosecutor deal with an eye witness who has a lengthy criminal history, even though it may have nothing to do with what the witness saw? Even bad guys can innocently, by coincidence or bad luck, witness other bad guys in the act. How will your fictional defense lawyer deal with the same situation? What emotions does the fear of testifying trigger in your witness? She and her new husband were beaten and robbed; if they testify against the thug, will the ten-year-old arrest for forgery that she’s never told him about be used against her in court? What will she do to prevent that—lie? Insist he testify? Develop laryngitis or an excuse to be out of state visiting her supposedly ill sister? Will a jury really hold a minor criminal history against a witness or victim in evaluating credibility?

Note that we are talking about witnesses here, not defendants. We’ll talk about the admissibility of a defendant’s criminal history another time.