Writing Wednesday

Since last week was the launch of my tenth novel, The Solace of Bay Leaves, the 5th Spice Shop mystery, I figured it might be good, in talking about favorite references, to mention my first book, Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver, 2011). When I first joined authors’ groups, other writers asked me questions about the law—how would my detective get a search warrant, can this character inherit from that one, who is Miranda and why are we always warning her? Like DP Lyle’s Murder and Mayhem which I highlighted a couple of weeks ago, it’s aimed at mystery writers, but it’s equally useful for nonfiction writers, including journalists. 160 questions and answers in a dozen topics, illustrated with examples from real-life cases, including some of my own, and books and movies.

And yes, I still pull my own copy off the shelf now and then to remind myself of the facts about the law. Because even though it’s fiction, we owe our readers the truth.

By the way, Books and Crooks, as it’s known in my house, won the 2011 Agatha Award for Best Nonfiction. Such a special moment, because it told me I’d correctly identified a need and filled it. Though it’s been out several years, it is still largely accurate, though there have been quite a few developments in the law of the death penalty since then. Use this blog’s search function for some updates.

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!

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.

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

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

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.