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 and Fiction — circumstantial evidence

desk

In my posts and presentations on the common mistakes writers make about the law, I often talk about the difference between direct and circumstantial evidence. This article on homicide charges recently filed against a Utah woman for her husband’s murder lays out a good case of circumstantial evidence: evidence of facts that lead to an inference of guilt.

Turns out the man had told others if something happened to him, look at her. Changes in wills and insurance policies, drugged drinks, fentanyl purchases, and more. But one of the most eye-popping threads in this story? After her husband’s death, she published a book for children on dealing with the loss of a parent.

Good grief.

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 about legal issues

Books, Crooks, and Councelors

When I started this blog, shortly after publication of my guide for writers, Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver Books, 2011), I often wrote about how to write about legal issues. And occasionally, I see an article, case, or topic I want to share with you. Today, I’ve got two.

If you’re writing about criminal cases in the justice system, you need to be aware of plea agreements: what goes into them, what are the benefits, what are the costs. This NPR story discusses a recent report from the American Bar Association, noting that 98% of criminal cases in the federal courts end with a plea agreement. (I suspect the number is slightly lower in state court, where most cases are brought, but is still very high.) Pleas provide efficiency and certainty, but at what cost to the defendants — and to society? Worth thinking about in your story.

And too many trials result in wrongful convictions. One is too many. I wrote about such a case in Blind Faith, my latest standalone (written as Alicia Beckman), based on an actual case in Billings, Montana, where the book is set, involving faulty testimony from a state crime lab employee on hair analysis. I was pleased to see this article in the Billings Gazette about two University of Montana law students who worked with the state’s Innocence Project to overturn a wrongful conviction.

Crime victims, their families, and our communities deserve justice, and that’s often the thrust of our stories. But wrongful convictions and unfair plea agreements serve no one.

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.

Writing Wednesday — Ten Essential Reference Books

Leslie’s bookshelves

After three top ten lists – 10 Common Mistakes Writers Make About the Law, 10 Favorite Novels About the Law, and 10 Essential Books on Writing – I thought I’d list some of my trustiest reference books that aren’t about craft. I already included my own Books, Crooks and Counselors in the list of writing essentials, so I won’t list it here, but it certainly would fit.

In no particular order:

The Idiot’s Guide to Private Investigating, by Steven Kerry Brown (2003) – A terrific guide to finding information from knocking on doors to skip tracing and beyond. Technology has advanced since this book was published, but it’s still very useful.

Murder and Mayhem: A Doctor Answers Medical and Forensics Questions for Mystery Writers, by D.P. Lyle, M.D. (2003) – Lyle’s written several other useful books in the same vein. And yes, his Q&A format inspired mine in Books, Crooks.

Police Procedure & Investigation: A Guide for Writers, by Lee Lofland (2007) – The name says it all. By the force behind The Writers’ Police Academy, also a short story writer.

The Writer’s Guide to Psychology: How to Write Accurately About Psychological Disorders, Clinical Treatment and Human Behavior, by Carolyn Kaufman, Psy.D. – Not just a useful book; an article by the author in a writing magazine led me to submit my proposal to her publisher, Quill Driver Books, which then took on Books, Crooks.

Diagnostic and Statistical Manual of Mental Disorders, aka the DSM – The professional reference, loaded with detail about specific conditions; surprisingly readable. A therapist friend gave me her copy of the DSM III when an update was published; you can find older versions in used bookstores.

Body Trauma: A Writer’s Guide to Wounds & Injuries, by David W. Page, M.D. (1996) – An older book, but still useful, especially if you don’t have a doctor in the house!

You Just Don’t Understand: Women and Men in Conversation, by Deborah Tannen, Ph.D. (1990) – I devoured this book, long before I started writing, but have found it and Tannen’s other books terrific explanations of how people really talk, useful in creating realistic dialogue laden with subtext.

The Writer’s Legal Guide: An Authors Guild Desk Reference, by Tad Crawford & Kay Murray – I’ve got the 4th edition, published in 2013, and hope there’s an update in the works. If not, look for a similar book from a reputable source, to guide you on issues such as copyright, defamation, taxes, and much more. If you’re self-publishing, there are references to guide you with contracts and other legal issues, as well.

The Criminal Law Handbook: Know Your Rights, Survive the System, from Nolo Press, updated regularly

And the Constitution of the United States, 1787, Madison, Jefferson, et al. Many libraries and courts and the ACLU provide free pamphlet-sized copies.

What subject-matter resources would you add?

Writing Wednesday — Common Mistakes Writers Make About the Law

If you’re a member of Sisters in Crime — and if not, what are you waiting for? — you may have watched the webinar I gave in October 2020 called Common Mistakes Writers Make About the Law. (Members can watch it free in the archives.) Or you might have heard me talk on the subject at the Writers’ Police Academy, Colorado Gold conference, or Flathead River Writers’ Conference. It’s an important subject and one I enjoy discussing.

But when I read the third book in a few months in which a character is arrested and immediately given Miranda warnings, I realized it might be time for a refresher. Herewith, a repeat of an article I wrote for The Writer (September 2013). (And if you want more details on using the law in your fiction, check out my guide for writers, Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver, 2011). Pay close attention — especially to the section on Miranda warnings.

Books, Crooks, and Councelors

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.

Writing Wednesday — death investigations

Once upon a time, I wrote a book called Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver Books, 2011), winner of the 2011 Agatha Award for Best Nonfiction. One section discussed medical examiners and coroners, the two types of death investigation in the U.S. Since I had to look up a few details of Washington State’s system recently, I thought you might need a refresher, too.

Books, Crooks, and Councelors

Remember that terms and laws vary state by state. Whether your state uses a coroner, an ME, or a mix of the two, as Washington does, the role is the same: to investigate deaths as required by state law. As the Washington Association of Coroners and Medical Examiners says: “Coroners and medical examiners use the same forensic death scene investigation process,  forensic autopsies, toxicological testing and decedent histories to determine the cause and manner of death, resulting in consistent, professional and high quality death investigations.

Cause and manner. That’s their focus. In other words, what was the medical cause of death, and was it natural, accidental, suicide, homicide, undetermined, or pending. This summary from Washington’s Snohomish County website gives more detail on the five manners of death and specific considerations for each. Remember that particulars in your story state may vary. Coroners and ME’s don’t investigate the who and why—that’s up to law enforcement, whether it’s local police, a sheriff’s department, or a federal agency.

Coroners may be elected or appointed. In some states, they are independent, while in others, they are part of the country sheriff’s department. Medical examiners are typically medical doctors appointed to the position. Autopsies may be done within the department or done by forensic pathologists employed by a local hospital. Some states, like Montana, have a combined system where the sheriff is also the coroner, although a deputy may take on the primary responsibility, while autopsies and forensic examination are done by pathologists and forensics examiners at the state Crime Lab. How can you find out more about your story state’s system? Start here, with the CDC’s summary of Coroner/Medical Examiner Systems, by State; it also provides links to info for each state. The site also provides additional info that will intrigue crime writers. You might also glean useful details from the National Association of Medical Examiners website, including how to become a medical examiner, the violent death reporting system, and more.

Finally, the U.S. Department of Justice publishes this guide, Death Investigation: A Guide for the Scene Investigator, full of legal and other details for dealing with the body, the scene, medical history, and more.

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.