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

medium_5938168933I 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.

Why You Should Attend the Writers’ Police Academy – #WPA2016

WPA 2016If you write mystery or crime fiction, or romantic suspense, or anything where bad stuff happens, you need to know about police procedure and investigation, forensics, arson investigation, how PTSD affects law enforcement officers, emergency response teams, and all that stuff.

The best way to learn, hands down, is the Writers’ Police Academy, founded and run by Lee and Denene Lofland, with major sponsorship from Sisters in Crime. As you can tell from the photo, tThey make sitting in the BACK of a police car something to GRIN about!

The 2016 WPA was held at the Northeast Wisconsin Technical College outside of Green Bay, home to a terrific law enforcement training academy. It’s a hands-on, action-packed weekend. A few of the topics covered: Arson investigation; Asian and Native gangs; the Steven Avery investigation; ballistics; blood spatter (surprisingly popular!), courtroom testimony, common mistakes writers make about the law (I taught that one), death scene investigation, defense and arrest tactics, PTSD, drug ID, explosives, fire 101, force on force room clearing, forensic art, poisons, police talk, private investigation, undercover work, and more.

Hands-on sessions included driving, shooting, a shoot-don’t shoot scenario, and defense tactics. Each day, real-life scenarios were played out in front of us—a fatality collision, a stabbing on campus—so we could see who responded and what they did. The drone demo was great, and I’ll tell you, the SWAT armored vehicle is huge!

WPA 2016 2My personal favorite was the PIT maneuver driving class. I did it! I intentionally hit and spun another car! (Not easy for a personal injury lawyer to do that, but the instructor, Colleen Belongea, absolutely rocks!)

For perspective from other writers who attended, check out these blog posts:

Jessica Ellis Laine: Top Ten Reasons I Love the Writers’ Police Academy

Stacy Green: Writers Need the WPA Because Readers Are Smart

Terry O’Dell: Why Writers’ Police Academy? (This woman is serious—she’s attended 5 of the 8 WPAs!)

WPA Banquet photo #1I had a great time meeting so many Sisters in Crime—more than two-thirds of the attendees are members—and am gratified to know how valuable the experience is for Sisters, and others. (Banquet photo by Ohio Sister Jan Irvin.)

 

Planning for the 2017 WPA is underway. Watch the WPA website-–registration will open in February 2017.

An interesting experiment with 3D printers and fingerprint locks

medium_706401207 (1)Advances in technology can offer a writer a road block — highly desirable in fiction, where we want to complicate our characters’ quests, unlike real life, where we crave simplicity. But it can also offer creative solutions. That’s one reason I like this story from NPR about two Michigan detectives who sought help from a computer science and engineering prof to print 3D fingerprints to help them unlock a phone belonging to a murder victim. It took the prof, Anil Jain, and his team three tries to find the right combination of printing techniques. Jain says he was happy to help, but also hopes that the work highlights the security limitations of fingerprint locks.

Note, as the story stresses, that this phone belonged to the victim, not a suspect, and the police thought it might hold clues to the killer’s identity, so the privacy concerns presented in other cases weren’t a factor. And there is no word on whether the phone did provide helpful clues.

But the story may give writers a clue: Could your fictional detectives seek help from unlikely sources? Ask yourself what role technology plays in your investigation, and what creative means your detectives—amateur or professional—use to get around the obstacles, or take advantage of them?

Crime and Facebook

medium_706401207 (1)Today’s edition: Can your fictional lawyer tell a fictional character to take down incriminating photos on Facebook? And does a party in a civil lawsuit have to produce social media records?

Short answer: Hey, why not? It’s fiction!

Long answer: 1) Not if you want the lawyer to be smart, upstanding, law-abiding, honorable, ethical, and a candidate for Girl Scout troop leader of the year. And you do, don’t you? That is, of course, a rhetorical question. 2) it depends.

As you’ve heard me say before, your characters can make bad choices about the law and legal ethics, but as the writer, you need to know the consequences. The basic rule is that a lawyer cannot advise a client to do something illegal, including destroying potential evidence. And that applies whether the evidence is a blood-soaked shirt or a photo showing himself with stolen cash. That last is a real-life example, mentioned in a recent article in NW Lawyer, the Washington State Bar Journal, analyzing a lawyer’s ethical duties. In my opinion, there’s no real debate: If a lawyer anticipates that a civil suit or criminal charges may be filed, even if they haven’t yet been filed, she cannot advise her client to take down an account or a posting, and should affirmatively advise him to not do so. Continued posting is probably okay, as long as the lawyer makes very clear that the client should not post on any thing remotely related to the case — because that can be hard to define, I’d go further and suggest a social media moratorium, except perhaps for business purposes if the legal issues didn’t involve the business.

So, does a party to a civil lawsuit have to provide the other side access to his or her private Facebook account? (Or Twitter, or Instagram, or any other social media platform.) I researched this issue when the plaintiff’s lawyer in a personal injury case requested all social media account info, including passwords, and postings from my client, a truck driver and defendant in a suit over a relatively minor car-truck collision. My client did have a private Facebook page; as soon as suit was filed, I advised him to make no updates or changes to it, and not to post on it, and he complied. (Although some changes aren’t in the account holder’s control; he’d just gotten married, and when his wife changed her page to mention marrying him, the change occurred on his, too — but I wasn’t worried about explaining that if we had to!)

The general rule, in Montana and other states, is that a party can’t go on a fishing expedition in social media accounts any more than it could do so in other records. Account holders are allowed a certain measure of privacy. Note that an account isn’t protected simply because it’s been designated private. In most states, courts generally require a requesting party to make “a threshold showing that publicly available information on those sites undermines the [other party’s] claims.” Keller v. National Farmers Union Property & Casualty Co., decided by the U.S. District Court for Montana, Jan. 2, 2013

In our case, the plaintiff made no effort to show that the driver’s postings were relevant, and I had no trouble refusing access. (Never would I have provided passwords without a court order.) But situations differ, and so does state law. If a party’s physical condition or injuries are at issue, I can see a court granting a request to produce photos posted online after the date of the alleged injury — it’s relevant to know whether a plaintiff claiming a wrist injury returned to her weekly bowling league shortly after the accident, or now sits on the sidelines lifting only a beer.

Writing about hate crimes

When is a crime a hate crime? Don’t all crimes, in some sense, arise out of hate? Should we as a society treat certain crimes more harshly when they are motivated by bias or hatred against people because of their religious beliefs or immutable characteristics such as race, gender, or sexual orientation? Does a specific motivation make criminal actions worse, and deserving of greater punishment than a similar crime which lacks that motivation but has the same result? Are we then punishing thought, or speech, rather than action?

These are some of the questions writers who include hate crimes in their stories need to consider. Some resources to guide you:

Patchy reporting undercuts national hate crimes count — This AP article reports that FBI stats note 5-7,000 hate crimes a year, with about half of victims targeted by race, but under-reporting is rampant. More accurate statistics would increase awareness as well as resources for law enforcement training and community outreach.

Resources from the FBI: The FBI defines hate crimes this way:

“Defining a Hate Crime

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. For the purposes of collecting statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate itself is not a crime—and the FBI is mindful of protecting freedom of speech and other civil liberties.”

The site includes stats, cases and examples, and more.

The National Crime Prevention Council’s hate crime page notes: “The U.S. Department of Justice defines hate crime as “the violence of intolerance and bigotry, intended to hurt and intimidate someone because of their race, ethnicity, national origin, religion, sexual orientation, or disability.”

Forty-one states and the District of Columbia have laws against hate crimes. This means that if bias is involved, a crime such as vandalism, assault, or murder is also a hate crime, and the penalty is more severe than it would be otherwise.”

The page includes strategies on prevention, talking to kids, and a report from Washington State on the impact of improved relationships between law enforcement and minorities.

And the Human Rights Campaign looks at crimes against the LGBT community, and others. Good state-by-state links to laws and policies.

 

 

Law and fiction — blogs with a real-life view of lawyering

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Writing a character who is a lawyer, but you’re not one — or closely related to one? A recent post on favorite blogs for lawyers on the Washington State Bar Association blog mentioned these, so I took a quick look. Good inside info.

Corporette: subtitled Fashion, Lifestyle, and Career Advice for Over-Achieving Chicks. If your image of women lawyers is pumps and charcoal gray suits, take a look. Things have changed, thank goodness!

Attorney at Work: No pictures of shoes or ruched-sleeve jackets (love ’em!) here. Lots of practical advice for the working lawyer, including ideas for business development, better meeting strategy, and being a good employer. I like this for writers because it reminds us that lawyers are business people, too — and like all business people, some handle it better than others. The pieces here will give you a better idea of a lawyer’s daily life, and may suggest some conflicts, small and large, that you haven’t thought of.

More than 50% of lawyers work on their own, or with only one or two other lawyers. Solo Practice University gives advice for the solo and small-firm lawyer. Like Attorney at Work, quite a few posts apply concepts from other fields to lawyering, which I like very much.

Remember that the more you understand about your character’s real life and daily struggles, the more conflict you can add to your stories and the more fully you can develop your characters — and understanding what they want and will do to get it is what leads to plot. Blogs are a great way to catch a glimpse of daily concerns and struggles, the very stuff that help us build intiguing characters on the page.

A Day in the Life of an Expert Witness — guest Lisa Black

Welcome back to Law & Fiction: the Blog author and forensic scientist Lisa Black, whose experiences as an expert witness remind lawyers to be verrry considerate of our experts, and give both writers and readers an insider’s view of the criminal justice system. Her newest novel, THAT DARKNESS: a Gardiner and Renner novel , releases tomorrow, April 26.

that darkness coverI have testified in court as an expert witness approximately sixty times in my 20 years as a forensic scientist, and I can positively state that I would rather respond to the scene of a decomposed hoarder death in a house skittering with roaches and bedbugs then present myself in court for any reason whatsoever. At least I’d only be surrounded by trash and bad smells for an hour or two, whereas a court appearance can stretch into days.

There’s absolutely nothing fun or glamorous about it. You are jerked away from whatever it was you were doing (work, your day off, a vacation) and plopped into a cold, boring room in the cold, boring courthouse. If you’re lucky the room has a window and a minimum of chatty co-witnesses. You have to stay there for as long as the attorneys think they ‘might’ need you and will be freed only after at least one of them has done their best to make you look incompetent at best and conspiratorial at worst. The whole experience, quite frankly, sucks.

And it’s the most important thing we can do. All the crime scene work, swabbing up blood, wearing surgical masks to be able to breathe amid the stench, straining our eyes staring at fingerprint ridges for hours upon hours—all these things count for nothing if they don’t stand up in court.

But that’s the big picture, and usually I’m stuck in the pixels.

The waiting isn’t so bad when it isn’t your vacation you’ve been pulled away from, and you’ve prepared by bringing snacks, change for the pop machine and a book to read. I’ve taken my laptop along and gotten my writing done while waiting (though you may have to dodge those chatty fellow witnesses). If you have a smartphone, I highly recommend downloadable e-audiobooks from your library system (heaven!!). Our courthouse even has free wifi for surfing the web or answering email.

Also sometimes I have to go on Mondays, when our local courthouse does all the ‘housekeeping’ kind of stuff—pleas, motions, continuances—to collect a defendant’s palm prints or footprints, which the regular court bailiffs don’t do. This is the only kind of non-stressful court appearance I have since no one is going to ask me questions and I get to sit inside the courtroom for a change. There I can watch a sometimes interesting parade of people and hear the mini-synopsis of their predicament, such as the guy who got into an argument with someone, called 911, and as the officer arrived to explain that 911 was only for emergencies, called 911 three more times to complain about being told not to call 911.

What drives me to distraction, however, is my increasing appearances in court for sentencing hearings. When a person is convicted after a trial or plea, their fingerprints (not palms) are rolled in open court as an official record that this, indeed, is the person who was convicted in this particular court case. When they are convicted again, before they are sentenced, the prosecutor wants to establish that they have prior convictions so that the sentence can reflect that. So I have to compare the in-court prints from that conviction not yet sentenced to the in-court prints from one or two or five prior convictions. This is a minor thing, an easy comparison since the prints are usually decent and if, say, the right thumbs are smeared, you have nine other fingers to choose from. However I still have to do the comparison, hand it off to another examiner to re-do and therefore verify the comparison,  write the report, give it to my verifier to check and initial, then give to my supervisor to check and initial, make a copy for me, contact the court liaison to tell him he can pick up the report, then go to court and wait a half-hour or hour or two, then put up with the defense attorney complaining about my report (not long enough, too long, I made a typo in the birth date) as if he or his client is really suggesting that they are not the person incarcerated on these previous charges—because if they weren’t, surely they would just say so.

gavel stock image MslnArrgh!

Yes, I whine. But this does represent an outlay of taxpayer-paid time, and not just my time—my co-workers, the attorneys, the judge, the jury—and all to prove something that is already documented and that no one is questioning.

Attorneys have told me that this practice, which only began about four years ago, is due to some court decision, but I don’t believe it. I think it’s something they do ‘just in case’ it may prove to be a point of appeal. They’re trying to protect their body of work, but meanwhile more and more cases are dropped or plead down to nothing because the court’s schedule can’t handle them all. Sometimes crossing every t and dotting every i means that other t’s and i’s suffer.

Another new practice of the extreme stating of the obvious is asking ballistic experts to take bullets apart and then testify to the fact that they are bullets, with a slug and gunpowder, etc., to be used in a firearm. This is apparently requested when the use of a firearm is part of the charge or sentencing considerations, and in addition to verifying that the firearm itself is functional. After all there are several reasons why a firearm might not be able to fire as well as very realistic looking air guns—but nothing else quite looks like a bullet. And if the defendant wants to make the case that his bullets were not functional, he can, again, say so. Then order the testing. But to do it reflexively in every case adds up to a colossal waste of time and resources.

So, yeah, I don’t really enjoy going to court!

(A reminder to writers: local practices vary, and the new procedures Lisa has encountered in Florida are not required everywhere, so talk to a local expert before using them in your scenes!)

Lisa and powderThat Darkness is now available wherever books are sold!

It seemed like a typical week for crime scene specialist Maggie Gardiner–a gang boss shot in an alley, a lost girl draped over an ancient grave, a human trafficker dumped in the river–nothing all that out of the ordinary for the Cleveland police department as spring turns toward summer along the Erie banks. The methods are usual, the victims unsurprising–but when she notices a pattern, a tenuous similarity among the cases, she begins to realize that her days will never be typical again. How much of her life, her career, her friends, will she be willing to risk to do what’s right?

Jack Renner is a killer who does not kill for any of the conventional reasons…no mania, no personal demons. He simply wants to make the world a safer place. He doesn’t think of himself as a dangerous person–but he can’t let anyone stop him. Not even someone as well-meaning as Maggie Gardiner.

Maggie has the self-sufficiency of a born bit-of-a-loner. She works with a bevy of clever experts surrounded by armed police officers.        She is both street smart and book smart, having seen the worst the city has to offer.

But Maggie Gardiner is not safe. And, until she can draw Jack Renner into the light, neither is anyone else.

Jeff Lindsay, author of the Dexter series, says: “Lisa Black always delivers authentic characters in riveting stories. That Darkness takes things to a spellbinding new level with a taut and haunting story that will stay with you long after you finish reading it.”

Publisher’s Weekly says: “The intriguing forensic details help drive the plot to its satisfying conclusion.”

“Black is one of the best writers of the world of forensics, and her latest introduces Maggie Gardiner, who works for the Cleveland Police Department. Her relentless pursuit of answers in a dark world of violence is both inspiring and riveting. Readers who enjoy insight into a world from an expert in the field should look no further than Black. Although Cornwell is better known, Black deserves more attention for her skillful writing – and hopefully this will be her breakout book.”– RT Book Reviews, 4 Stars (Top Pick)

Lisa Black has spent over 20 years in forensic science, first at the coroner’s office in Cleveland Ohio and now as a certified latent print examiner and CSI at a Florida police dept. Her books have been translated into 6 languages; one reached the NYT Bestseller’s List, and one has been optioned for film and a possible TV series.

And yep, that’s her looking like a happy chimney sweep! 

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