Law & Fiction — a few recent discoveries

The “law” half of this blog has been fairly quiet recently. My apologies; I’m not as good at splitting myself in two (or more) personalities as I ought to be! I’ve come across a couple of articles recently that I thought worth sharing, even without a full blog post on the topics.

What happens when a person dies alone, without close friends or relatives, and not under a doctor’s care? This NY Times story, The Lonely Death of George Bell, describes the detailed process undertaken by the NYC Public Administrator and its agents and investigators. Other cities and counties follow a similar process, though not always so thorough.

I’ve written before about houses where crimes occurred, and the obligations of a seller or real estate broker to disclose murders on the premises — “When Crime Taints a House,” and “Ghostly Tenants and the Duty to Disclose.”  Now, there’s an app for that. (Hat tip to Seattle Mystery Bookshop.) “Died In House” tracks confirmed deaths by residential address, using obits, news accounts, and other searches. Many buyers want to know, and not just because they’re afraid of ghosts or because stigma can lower the price or make resale tricky. State laws on disclosure vary, and enforcement is difficult, so where there’s a gap, there’s an app.

I’ve also written about girls in the justice system. The Washington State Bar blog presents an in-the-courts-and-trenches view about girl-focused reform.

What it’s like to be a kid in jail or homeless

sparrows nestToday, I’m linking to a handful of articles that look at young people in the justice system. Their stories should matter to us as writers and readers, but mostly as humans—beyond a list of issues and a chart of statistics, each of these kids matters. And when they are lost, we as a society, as a community, lose, too.

The NW Sidebar, the Washington State Bar blog, reports on homelessness, school suspensions, and criminalization among LGBT kids. Anthony Gipe writes: “Nationwide, there are estimated to be in excess of 350,000 gay and transgender youth who are arrested and/or detained each year. While these youth account for only 5–6 percent of youth overall, they account for over 15 percent of youth in the juvenile justice system. It is also a startling statistic that of the LGBT youth in juvenile justice, more than 60 percent of those youth are also black or Latino.”

This article in Slate highlights the work of Richard Ross, a writer and photographer who’s been chronicling girls in the juvenile justice system. Ross says “Girls are the fastest-growing population in the juvenile justice system, accounting for hundreds of thousands of arrests and charges—often for minor offenses, like running away from home or breaking curfew—every year.”

In my own valley in NW Montana, the Bigfork Eagle reports that more than 300 children have been identified as homeless, including teens who live on their own—many not by choice, and many not part of the child protection system or foster care. Examples: a 14 year old girl living in the woods, taking shelter in a portable toilet or a Dumpster at night; a teenage boy who searches for unlocked cars to find a warm-ish place to sleep. School is their safe place. Some are still in school, but too old for the foster care system. A former church building was donated as a shelter for kids not in the system; a consortium of local churches raises funds for the project. In an April “awareness” campaign called “Somebodies,” mannequins dressed as homeless teens were placed on benches downtown. I watched the confusion as people tried to figure out what was going on; even with educational info posted nearby, it was too hard to digest, to understand that this is really happening.

A couple of other articles that caught my eye, from Crosscut, an online news source in Seattle: Kids and the American dream denied: A Conversation with Robert Putnam, and Trai Williams’ dream house for youth of color — one activist’s goal, grown from her own experience.

In mystery and crime fiction, all variety of characters touch on these issues: teachers, law enforcement, judges and court officers, prosecutors and defenders, social workers. Is your character a parent worried about her kid—or about her child’s best friend, who’s been kicked out of her house for dressing like the boy she feels she is, and not the girl her parents think she is? Each of these articles includes links to studies, books, and other resources that writers can use to dig a little further.

I’m big on showing emotion on the page, using emotion to drive the plot. What you just felt, reading these stories? Find where it resonates in your body—how it grips your jaw, makes your heart heavy, causes a damp eye or a tight throat. Give those feelings to your characters, and show us how they respond. Your stories will be stronger, your people a little more real. And all our eyes and hearts a little more open.

Domestic Abuse

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in 2009.

DOMESTIC ABUSE: Legal issues to keep in mind when writing about this all-too-common situation

A writer whose plot involves domestic abuse posed several questions.

Consider this scenario: 
A woman is in a violent marriage that’s getting worse. Her husband assaults her one night and is arrested. At his initial appearance in court the next morning, bond is set at $1,000. He posts bond by credit card and after spending one night in jail, goes home. Later, as a condition of a plea agreement, he agrees to attend anger management classes and AA. His wife reconciles with him, but is angry with her family and friends for making clear that they do not trust him and think she should leave him. As a result, she becomes more isolated, and one night, when he decides he’s tired of the wagon, of people telling him what to do, and of her disapproval, he drinks a half-rack of beer and most of a fifth of whiskey and beats her badly. The oldest child, just twelve, calls 911, and police and EMTs respond. She’s taken to the hospital, he’s taken to jail, and the kids are taken to a neighbor’s house to wait for their grandparents to arrive from out of town.

What’s going on, and what’s next? 
Pre-trial release: The amount of bail and other terms will depend on the charges and circumstances. In this scenario, the charge is probably a misdemeanor and a first offense. Potential charges in domestic violence vary widely, depending on the facts. Some are misdemeanors, others are felonies of several types, each with its own elements–the minimum facts that must be proven in court. Terms also vary: is it partner assault, domestic assault, family assault, simple or aggravated, first or second degree, or something else? Check the law in your story state.

Many factors affect pre-trial release, but the amount of the bail bond might be low if the victim isn’t seriously injured, the accused is particularly contrite, and no drugs, alcohol, or weapons are involved. Another factor is whether the accused has a steady job and ties to the community–not because that makes him less culpable, but because the primary purpose of bail is to ensure that a defendant shows up for later court appearances and those ties make him less of a flight risk.

And yes, some courts do indeed accept credit cards.

Release on bond typically involves numerous conditions. The main one: no contact with the victim. But if she tells the prosecutor she doesn’t want that–that she’s sure it won’t happen again, he’s really a good man but was upset over a problem at work or with one of the kids or she made him mad–the prosecutor won’t request that condition, because it’s clear she wouldn’t honor it. And the prosecutor wants her trust–there’s no point alienating the victim. If she’s in court, the judge might ask her if she wants him ordered to stay away. Some women genuinely believe the problem won’t recur. Others fear that a no-contact order would just make things worse. Some want limited involvement with police, courts, or government agencies for their own reasons; some fear the possibility of a Child Protective Services investigation; and others worry about finances or keeping their children from their father. Other typical conditions of release: refrain from drinking or using drugs, attend AA or NA, make all court appearances, and cause no further trouble.

Protective orders: I want to distinguish between a no-contact order issued after criminal charges have been filed or after a criminal conviction and a protective order. The purpose of a p.o. is to prevent future violence. According to statistics reported by the ABA (link below), 86% of women who received a protection order state the abuse either stopped or was greatly reduced.

The requirements and terms depend on the law in your story state, but a p.o. typically requires a showing that violence has occurred in the past and could occur in the future. (See the state-by- state info in the ABA summary of statutes, link below.) It does not require criminal charges or a criminal conviction. Common terms prohibit contact with the applicant and any minor children, including phone calls and emails as well as physical contact, harassment, and going to or near a school or day care that a minor child attends or to an adult’s work place or church. Protective orders may also prohibit use or transfer of real or personal property, and in some states, can be used to establish temporary child support. The person to be protected must apply for the order by going to the local prosecutor, legal aid office, or court–usually justice court. You can’t get a p.o. for someone else, except that a parent may obtain a p.o. covering minor children. A violation doesn’t trigger arrest; the person who obtained the order must go to court to request that the person restrained be found in contempt and fined or jailed.

All too often–again, because of the complicated relationships–the person getting the order ignores violations, or ignores it herself, which makes later enforcement much harder.

Going to trial: So charges are filed and the case is set for trial. Cooperation problems can crop up again. If a victim refuses to testify or threatens to recant her story, then prosecutors must weigh the evidence and decide whether they have enough to make the case without her testimony. Police investigation, eyewitness testimony, and medical reports may be enough–especially with photographs. Jurors will wonder why they’re not hearing from the victim, but most will be savvy enough to figure it out.

It’s not uncommon for a woman to testify at trial and recant her prior reports of violence. Some courts allow experts, such as social workers or psychologists working in the field of domestic violence, to testify that this is typical behavior. The expert can’t comment on the witness’s credibility or say that she was actually assaulted–both are decisions for the jury–but can offer a explanation for inconsistencies in testimony.

Note that the spousal privilege does not apply in criminal cases involving charges of violence against a spouse or the minor children of either spouse. (My column on spousal privilege discusses it in some detail; see my website.)

Sentencing: As I mentioned previously, the charges possible in domestic violence vary widely. So do the sentencing ranges and options. Some states give courts a wide degree of discretion in sentencing; others dictate mandatory minimums and establish aggravating factors. The particular circumstances are critical. What happened? What injuries occurred? First offense or repeat? Was a weapon involved? What about drugs or alcohol? Were both partners violent, or just one? Some couples develop a relationship based on mutual abuse and violence, making intervention much harder, and complicating the legal situation.

Suspended sentences are common, either on a plea agreement or after a conviction at trial. Release will include extensive conditions, such as successful completion of a drug or alcohol treatment program, anger management sessions, and restitution.

Other options: What do prosecutors do when faced with a woman who needs the financial support her husband or partner provides to care for herself and their kids? This is a tough one. The biggest problem prosecutors face is lack of cooperation from the victim. Because of the complicated emotional situation in abusive relationships, many women are reluctant to end these relationships. Often, the victim doesn’t want the man jailed–she just wants the violence to stop. If an assault has caused serious injuries, it’s hard for a prosecutor to accept a plea agreement that doesn’t involve jail time. A typical solution is a plea agreement with a sentence length appropriate under the statutes and circumstances, but with most of the time suspended. That way, the defendant serves some time in prison but will be released with supervision by local probation officers. If he violates the terms of his release, or commits another assault, he can be charged with violating those terms as well as for any new crimes–a strong incentive to keep one’s nose clean.

Prosecutors often refer victims to social services. These run the gamut, from counseling services to assistance with food and housing to organizations that supervise visitation or transfer of children between estranged or hostile parents.

The “battered wife defense:” Some women strike back. The “battered wife defense” to a homicide charge is a variation of self-defense, and requires proof that the accused was in imminent danger, and that her own actions were intended to protect herself.

Resources:
National Coalition Against Domestic Violence http://ncadv.org/
American Bar Association Commission on Domestic Violencehttp://new.abanet.org/domesticviolence/Pages/default.aspx survey of recent statisticshttp://new.abanet.org/domesticviolence/Pages/Statistics.aspx including prevalence, stalking, same-sex violence, recidivism, and workplace violence, as well as breakdowns by race and ethnicity, and age. Its resources pagehttp://new.abanet.org/domesticviolence/Pages/Resources.aspx includes a summary of state statutes and resources for survivors and attorneys.

 

Death by Details

 

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in First Draft, the SinC Guppy chapter newsletter.

DEATH BY DETAILS How much does the writer need to know about the story background vs. how much the reader needs to know?

A while back, I begged off my regular column because I was jammed by deadlines in federal court. In true editorial fashion, Susan [Evans, then First Draft editor] asked if I could make a column out of that. How on earth, I wondered, could I make civil discovery and disclosure deadlines in a groundwater pollution case interesting? Or the expert disclosures and settlement discussions going on at the same time in a state court case involving three electric utility companies and the state of Montana over water rights and the navigability of certain rivers at statehood in 1889?

And that brought me to a larger question: how much do you the writer need to know about the background of your story? And how much does the reader need to know?

I recently read a mystery – Higher Authority, an early entry in Stephen White’s excellent and successful series – involving a young woman’s claim of sexual harassment by an older woman she’d worked with. The lawyer filed suit within days after taking the case – without first filing a state or federal administrative claim. Outrage! Malpractice! Even a dumb lawyer – and there are plenty, despite the brains it takes to get in and out of law school and pass the bar exam – knows better! But the process takes weeks, even months. Including it would destroy a story that depended on the pressure of the lawsuit to trigger bad actors to do still more bad things.

So how much do you the writer need to know? I have no doubt White knew about the administrative claim process and simply decided to leave it out. Only trained professionals and a handful of readers would know he’d skipped a legally necessary step, and surely they would forgive him, for the sake of the plot. I did, barely a moment after creasing my forehead at the omission. After all, it’s a novel, not a civil procedure text, and readers aren’t looking to the plot for legal advice.

But knowledge can help you avoid mistakes that readers will notice – mistakes that affect the plot, or that introduce unnecessary error or confusion. A writer recently asked me about the spousal privilege, thinking she could add tension to her plot by if her protagonist married the good guy wrongly suspected of murder, preventing the protagonist from testifying against him. She didn’t realize that the privilege wouldn’t protect her character from being compelled to testify about what she saw him do, and that the law in her story state would not protect her from testifying to what he told her, because the conversations occurred before their marriage.

Another writer became concerned when a critique partner questioned her story’s setting in a small-town casino. The critter thought a casino had to be connected to an Indian tribe – a possibility that hadn’t even crossed the writer’s mind. Turns out her story state does allow non-tribal casinos – but readers might not know that, so she decided to forestall potential furrowed eyebrows by making the point in a brief dialogue exchange.

Back to those deadlines. If I were writing a story set around environmental litigation – wait, I did that. It’s in a box on a shelf in my office closet – would I spend precious pages detailing the emergency response, what state law requires, the VPH test results, test pits to delineate the scope of the dissolved-phase plume, and the hours after hours spent writing it all up for the various agencies, then more hours preparing documents to meet pressing deadlines? You know my answer, don’t you? But rather than skip over those details entirely, consider their role in your story. If your mystery centers on the environmental problems, would it benefit from weaving in a bit of the real-life complications? Is your character exhausted and seeing double after working till midnight sorting through boxes of disorganized records? That might be a good time for the villain to follow her home, when she’s least prepared mentally and physically. If you want to get her away from the office and civilization – and out of cell phone reach – consider a site visit to a remote mine or tailings pit. If you want to set up a court room confrontation, let her find a surprise in those boxes – a report that wasn’t disclosed when it should have been, a letter of complaint that predates the polluter’s first acknowledged notice, or an internal report on the dangers of the product or practice at issue. (“At issue” – lawyers say that a lot.) Use those details to complicate your story. But if the legal issue is more of a subplot than the heart of the story – as in White’s Higher Authority – you can safely leave your readers innocent of the finer points.

You don’t need to know all the details. If you do – from personal experience – you have the tough job of deciding what the reader needs to know. If you don’t, you have an equally tough job of learning just enough, and not getting lost in your own research. Talk to the experts. Run a scene by one of them. Ask a friend who knows nothing about the technical aspects to read your scene and tell you what she understood and didn’t. Sharpen your red pencil and be prepared to be ruthless with those details. Because “the curse of knowledge” can be the enemy of a good read.

Copyright Basics

I’m republishing here a few of the articles currently on my website before it undergoes a major revision. While I’m not a publishing lawyer, one thing any decent lawyer can do is research, then analyze and synthesize the results. Herewith, those results. 

COPYRIGHT BASICS Answers to the most frequent questions about copyright–how to establish it, avoiding infringement, and other issues

(First published in the Sisters in Crime Guppy Newsletter, First Draft, 2004 but still valid)

This month, by request, I’m straying slightly from my mission to provide legal information for use in fiction to discuss the basic principles of copyright law.

What is copyright and what does an unpublished writer need to know? Forget everything you think you know about copyright. In 1978, Congress enacted a new system which has since undergone further changes as a result of both Congressional action and Supreme Court decisions. Yes, 1978 was a while ago, but myths and assumptions take a long time to die. So euthanize yours, and read along with me.

Copyright, at its most basic, is the right to claim ownership of a creative work and earn profit from it. Copy, the word-within-a-word, fools us into thinking copyright pertains only to written works. Copyright principles apply equally to literary works, music (including lyrics), film and sound recordings, paintings, photos, architectural plans, and other works.

You may not copyright ideas, titles, names, phrases, slogans, common symbols (although trademark or service mark registration may be available), or processes (patent protection may be available).

Copyright gives its holder specific benefits. These include the exclusive right to reproduce the work, prepare derivative works (J.K. Rowling’sQuidditch Through the Ages or Harry Potter mugs), distribute the work by sale or license, and perform or display the work publicly. Transfer of ownership does not transfer the copyright unless expressly agreed in writing; an artist who sells a painting still owns the copyright and has the exclusive right to reproduce the painting in prints, posters, cards, t-shirts, or other media.

Copyright arises automatically as soon as a work is created. The work need not be completed or published, but it must be fixed in a medium. For literary work, of course, that means it must be written. You have automatic copyright in your partial outlines, rough drafts, and finely polished final copy. But you have no copyright to an idea or a plot outline kept in your head.

Copyright can be inherited; when an author dies, rights to her work, published or not, go to her heirs.

You don’t need to register your work to obtain copyright. The U.S. Copyright Office says this: “In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection.”

You don’t need to use the © symbol to establish copyright. The rule requiring copyright notice on the work has been eliminated for all works published since 1989. The word or symbol does give notice that the work is copyrighted, and thus can help make or defend an infringement claim, but use of the symbol is not necessary to establish copyright. If challenged, you can establish your copyright by showing creation through the work itself, drafts, outlines, journal notations, dates on computer printouts, and personal testimony.

If you use the symbol, the U.S. Copyright Office suggests this format, in a location that gives the reader reasonable notice:

©2004 John Doe

Some writers claim that agents & editors consider a writer who puts the © symbol on her work to be an amateur. I haven’t been able to confirm or rule that out. I have been told that most book publishers prefer that authors not register their work but let the publisher do so at the time of publication; that way, the copyright date inside the book is current and doesn’t cut sales by giving the false impression that a book is older or a reprint.

What are the benefits of registration and how do I register copyright? The chief benefit of registration is to establish a public record and make it easier to establish copyright if someone steals your work or accuses you of stealing hers. Other benefits include protection against illegal importation of unauthorized copies.

Registration requires an application and $30 fee for each work, plus copies for deposit in the Library of Congress. See the U.S. Copyright Office website for specifics and forms.

How long does copyright last? For works created on or after January 1, 1978, copyright lasts for the author’s life plus 70 years after death. For joint authors, copyright lasts 70 years after the last surviving author’s death. In a major change from prior law, copyright may no longer be renewed. You may think this short-changes authors, but the trade-off is that the term of copyright is now considerably longer and copyright holders can no longer inadvertently lose their rights. (Under prior law, copyright was 28 years with a 28 year renewal term, but renewal was not automatic and copyright was lost if not renewed during the original term).

Any work created before 1923 is no longer protected by copyright and has entered the public domain. That means the work can be quoted freely without permission. (You should still give credit, though, to avoid confusing your readers and triggering suspicions of plagiarism.)

Copyright obtained between 1923 and 1978 may be current or may have expired. Check with the U.S. Copyright Office for specifics on the copyright of older works.

What are the risks of sharing my work before publication or registration? Whether sharing work creates a risk of theft depends largely on how and with whom you share. Choose wisely. Submitting work to a reputable agent or editor rarely creates problems. At nearly every writers’ conference or workshop I’ve attended, a novice has expressed concern about theft of an idea; the published writers, agents, and editors uniformly respond that the writer’s concern marks him as an amateur and he should not worry. If you share pages with a face-to-face critique group or an online group in whom you’ve built trust, the risk is probably minimal. Sharing in a less secure environment, such as an online writers’ forum or chat room where you don’t know who is participating, is far riskier. Choose what you share carefully. If you have a concept for a book that’s never been done, it’s probably better to spend your energy writing the book than touting your concept.

Keep in mind that ideas, concepts, and facts cannot be copyrighted. Sometimes an idea is in the air. Maybe you mentioned in the bar at Left Coast Crime your idea for a mystery with a frozen body found in a glacier. The next year, Dana Stabenow published a Kate Shugak mystery in which a receding glacier reveals a dead body. She wasn’t in the bar with you and her book was already in the pipeline. Neither of you stole the idea from the other. Writer Les Standiford, head of the creative writing department at Florida International University, often testifies as an expert in copyright cases involving novelists and screenwriters. He reminds writers that similarities in story structure or overall concept do not mean the story was stolen; the focus in determining theft (copyright infringement) is on content and style — that is, how the writer develops the idea.

How much can I quote without violating copyright? What is fair use? Copyright gives its holder the exclusive right to use a work. However, an exception exists for limited use of quotes without authorization. A long-standing myth says four lines or fifty words can be quoted without fear. Slay that bugaboo now.

The key to determining whether quoting infringes copyright is whether the quoting is “fair.” In the landmark case, Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), Harper sold Time magazine the right to publish an excerpt from former President Gerald Ford’s forthcoming memoir. The Nationobtained a pre-publication copy and ran an article quoting three hundred words. Time cancelled the deal and refused to pay Harper. In finding againstThe Nation, the United States Supreme Court set out several factors to be considered:
— the purpose and character of the use. Quotation in a review, even if critical, is obviously fair, so long as it is accurate. Quotation for profit, as inThe Nation’s scoop, weighs against fairness.
— nature of the copyrighted work. Are you quoting historical facts or compilations, or fiction or poetry? The more factual and less creative, the more “fair” the use.
— amount and substantiality of use. The Supreme Court held that the 300 word excerpt quoted in The Nation — Ford’s reflections on pardoning Nixon — was the heart of the 200,000 word manuscript. Point: it’s not the length that counts, but what you excerpt and how you use it. Four lines from Crime and Punishment may be insignificant, but four lines from a Langston Hughes poem may be the bulk of it.
— effect on potential market or value. The Nation scooped Time for profit and market share. A reviewer or a professor giving a talk on literary criticism doesn’t have the same negative effect on market.

Bottom line: Think carefully about whether you need to quote a copyrighted work, how you are quoting, and how the copyright holder will view your quote. When in doubt, discuss getting permission to quote with your publisher. Contact the publisher of the work quoted or the Authors’ Registry, a clearinghouse for contacts and payments, or search the Copyright Office database.

Remember that copyright protection doesn’t apply to titles and short phrases. Even though the music and lyrics of “Proud Mary” are still under copyright, you may use the song title as a book title. Most readers will make the connection to “Proud Mary, keep on burning,” especially if a character mentions to John Fogerty or a Creedence Clearwater Revival concert, or if the plot involves a riverboat — or even a woman named Mary. But if you intend to quote the lyrics in the text or as an epigram or a chapter heading, copyright protection applies. Requesting permission in advance is a lot easier than responding to a “cease and desist” letter asserting an infringement claim when your book is already in print. A new author using a short quote in a paperback edition with an average print run may be given permission to quote at no or low cost. If the price is too high, revise to use only a title or an image, not a quote, or to quote only material in the public domain.

Copyright protection also applies to material used in a free publication. Most copyright holders will charge only a nominal fee for non-profit use. You might wonder why a wealthy musician or a Pulitzer prize winner would charge at all in that situation. Charging, even if only ten dollars, helps the copyright holder demonstrate that it is actively protecting its right to control the use of the work, which could be important in an infringement claim where more money is at stake. Remember that copyright law protects the holder’s right to decide how and where the material is used, not just the right to earn profits from the work.

If you’re writing parody, or rap music with sampling, the rules differ. Check them carefully.

What about photocopying? If it’s for your own use, relax. However, copying articles for archival use in a corporate setting is a problem if systematic or institutional; research the practice before continuing it. Brief excerpts for educational use are acceptable, but systematic use or creation of “course packs” for students is not.

(I am indebted to Crawford & Murray, authors of The Writer’s Legal Guide, for their insights into the Harper & Row decision.)

May I use a real play as background in a mystery set in a community theater? May the characters discuss the title, plot, their roles, or the author? Plots and titles can’t be copyrighted, so you can freely use both and let the characters in your novel discuss them. Novel characters may discuss play characters, but you cannot recreate a character from the play in your novel without permission. That is, you can write a novel in which an actor discusses playing John Proctor in “The Crucible,” and you could also write a historical novel featuring John Proctor so long as you based your work on historical research and not on the Arthur Miller play. But if a play is still under copyright, you may not take a character and use him as your own.

Fair use principles apply to quoting. You need permission to quote if you write a scene where characters recite lines from the play while rehearsing. But if your characters simply discuss how they’ll act out the confrontation between John and Mary Proctor without quoting lines from Miller’s play, no permission is needed.

Discussion of the author of the play is regulated not by copyright principles but by the law of libel and slander. The characters in the novel may freely discuss what they think Miller intended in a certain scene or the political context in which he wrote “The Crucible.” They may also discuss the facts of Miller’s own life, so long as they do so accurately. Opinions may be freely given so long as they are clearly opinion; a character may say “In my opinion, Miller’s over-rated” or “I think he was crazy to marry Marilyn.”

In addition to the sources already mentioned, you may be able to contact the copyright holder of plays through Dramatists’ Play Service, which publishes plays and licenses production rights.

Magazine publishers may copyright articles by freelancers as “work for hire.” Magazines commonly copyright an entire issue as one piece of work in the publisher’s name. This avoids the expense and trouble of registering copyright for each story in the name of the magazine (if staff-written) or the freelance writer. Typically, contracts specify that the writer is providing the story as “work for hire,” but has the right to publish the piece on her website, in an anthology, or after a specific period of time, in another publication. Magazine publishers rarely refuse permission to reprint if given credit for the original publication. Magazines often retain the right to publish the piece on its own website or in their own anthologies (e.g., “Sunset Magazine’s Guide to Western R.V. Travel”).

What copyright protection exists internationally? There is no “international copyright;” the laws of individual countries govern. Happily, most countries have signed treaties giving copyright protection to non-citizens, agreeing to enforce each others’ copyright laws, and providing an enforcement mechanism.

Full U.S. copyright protection is available to any person who, when the work is created, is a “national or domiciliary” (meaning generally a citizen or resident) of the U.S. or any country that is a signatory to international copyright treaties. U.S. copyright law also applies automatically to works first published in the U.S. or treaty parties. In short, most countries have signed international copyright agreements and honor copyright no matter what the author’s citizenship or residency.

If your work is first published abroad and you are a U.S. citizen or resident, your copyright is protected by both foreign and U.S. law. The treaties provide a relatively uniform system of protection.

If you sell foreign rights and your work is published in translation or in a different edition (e.g., a book first published in the U.S. is published in German for distribution in Germany or in a British edition with differences in spelling), a separate copyright exists in the new edition.

For more info, check out the U.S. Copyright office for circulars on specific topics or their Frequently Asked Questions. Or consult a legal reference book for writers such as The Writer’s Legal Guide, an Authors Guild Desk Reference, by Tad Crawford & Kay Murray (3d Ed. 2002, Allworth Press).  (When I spy a new edition, I’ll raise my hand.)

Miranda: A Refresher

Like so much in life, legal errors in fiction seem to run in streaks. Errors in several recent reads prompt this refresher on Miranda rights and warnings.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at government expense.”

US Supreme CourtIn Miranda v. Arizona (1966), the U.S. Supreme Court decided several cases from around the country that raised a critical issue: Must a suspect be warned of his rights before being interrogated? Which rights? Under what circumstances? And what are the consequences if he isn’t warned? The Court said the Constitution requires that suspects in custody be informed of their right to silence–grounded in the Fifth Amendment right against self-incrimination, that anything they do say could be used against them, and that they have the right to counsel. Only if the suspect understood those rights and voluntarily waived them can statements made during custodial interrogation be used against the suspect in court.

A noteworthy exception to the warning mandate is the “public safety exception” of New York v. Quarles (1984), where officer or public safety is at risk.

The Supreme Court decided two Miranda cases in 2010. In Maryland v. Shatzer, the suspect requested a lawyer and questioning stopped; fourteen days later, he was taken into custody, waived his right to counsel, and voluntarily confessed. His initial request for counsel did not bar the later interrogation or prevent an effective waiver.

In Berghuis v. Thompkins, the Court held 5-4 that once a suspect has been warned, he must specifically invoke his right to silence—an explicit waiver is not required—and that a brief response amounting to a confession will be taken as a waiver and will be admissible. The Michigan detectives asked Thompkins if he prayed to God, and when he said yes, they asked him if he prayed for forgiveness for “shooting that boy down;” yes, again. That, the majority held, was a choice to respond, and thus to waive the right to silence. The result of the decision may be that police will continue to question suspects who remain silent after being warned, hoping to increase the likelihood of an eventual response. Keep in mind, though, that some states may hold otherwise under their constitutions, and individual police departments may require explicit waivers.

Keys for writers to remember about Miranda warnings:
• only suspects in custody are entitled to warnings;
• warnings are required only before interrogation—that is, questioning;
• voluntary statements not made under questioning are admissible;
• a suspect who’s been warned can waive his rights and agree to be questioned;
• it’s the substance of the warning—not the exact language—that matters. But most law enforcement departments require officers to use standard language to prevent later disputes over what was said.

Consider this scenario, looking first at custody: Police ask a man to come to headquarters to talk about the disappearance of a child in his neighborhood. He agrees, drives his own car, and is interviewed in an unlocked office; everyone is cordial and it’s clear that he’s free to leave any time. He’s not in custody.

Contrast this with the same man ordered to get in the back of a police car, which then takes off; he hasn’t been told he can’t leave, but under the circumstances, he’s not reasonably likely to believe that he can.

Now let’s look at interrogation. In the interview room, two officers tell him they’re waiting for a photograph to be printed. They don’t warn him. Meanwhile, they discuss the scene they’ve just left, the blood, the horror, and wonder out loud what kind of person would do such a thing. What kind of warped mind, what kind of terrible childhood, and so on. Squirming, the man finally blurts out, “You leave my mother out of this. She had nothing to do with me killing that girl.” He then breaks down in tears and tells the whole story. No interrogation, just a conversation between two officers—maybe with the goal of provoking a response, or maybe not. After analyzing all the facts, the judge may conclude that the suspect was not in custody, and never consider whether he was interrogated. If the facts establish custody, the judge will consider whether the statement was a voluntary, spontaneous response to the officers’ conversation, or whether it amounted to an interrogation. That decision determines whether his statements are admissible or must be suppressed.

US Supreme Court - Lady JusticeUS Supreme CourtWhat if the suspect was warned first? Analysis will focus on whether his statements were coerced, and therefore inadmissible, or made voluntarily with full knowledge of his rights. The facts make all the difference.

Assume the suspect requests a lawyer, either before or after his confession, but keeps talking. The lawyer will move to suppress, to determine whether the additional statements are admissible, under the analysis just described.

Remember that arrest alone does not create an obligation to warn a suspect. Failure to warn does not require dismissal of charges, although it may result in a suppression of evidence obtained through improper interrogation.

By changing the setting, the age, sex, race and even the size of the suspect and officers, the time of day, how long the suspect remains in custody, and of course, what’s said, you can add more tension and complexity to your plot. Is the conversation on a street corner at mid-day, or in a small gray room in the basement of the police station? Is the suspect sixteen or forty-five? Is the door open or shut? Do the officers come and go, take bathroom breaks, eat and drink—but offer the suspect nothing? Is his agreement to waive his rights threatened or coerced, or has he been treated with basic human decency? If the suspect is likely to talk, nothing will shut him up faster than being warned; suspects watch TV, too, and of course, many have been through the drill before. Is your story better served by a silent suspect or a talkative one, by wrangling over admissibility of a confession, or by going to trial quickly?

The Miranda decision, written by Chief Justice Earl Warren, isn’t easy reading, but it is fascinating. A former prosecutor himself, Warren rightly believed that prosecutors have a responsibility to protect individual rights and ensure fair trials as well as to prosecute crime. Your fictional prosecutor and detectives might agree, or shade the line.
Writers of historicals, remember that attitudes about the rights of the accused changed significantly in the 1960s. Miranda was a 5-4 decision, and controversial, even though the FBI and some states already used similar warnings.

*** Who was Miranda? Ernesto Miranda was convicted of rape and kidnaping, based on his confession and the victim’s identification. He was not advised of his right to counsel or to silence, although the written confession form included a preprinted statement that he knew his rights and that his statements could be used against him. After the Supreme Court decision, he was retried, without the confession, and again convicted, based on eyewitness testimony and the testimony of his common law wife, with whom he was in a custody battle over their daughter, that he had admitted the rape to her. Miranda was released in 1972 and returned to prison for a time in 1974. While out, he sold signed Miranda cards for $1.50 each. He was stabbed to death in 1976 at age at 34 in a bar fight; no one was charged.  ***

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Adapted from Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books), by Leslie Budewitz, winner of the 2011 Agatha Award for Best Nonfiction.

Conflict in the Courtroom: Cops & Counselors — a guest post

Today we welcome to the blog Micki Browning, a veteran police officer, now retired and spinning tales of murder and mayhem in Colorado and the Florida Keys, sharing her perspective of the critical relationships between police officers, prosecutors, and defense counsel. Welcome, Micki! 

Conflict in the Courtroom: Cops & Counselors

Cops and counselors work together on a regular basis. How well they get along is often determined by which table the attorney sits at in the courtroom. Sometimes only inches separate the tables, but the span is often insurmountable. While I’m fairly certain there are at least a few amiable defense lawyers in this world, you’d be hard pressed to find an officer who will admit to meeting one. So why the disparity? After all, attorneys practicing criminal law all use the same playbook. To be fair, everyone is striving for justice, yet from a cop’s perspective, defense attorneys have a huge PR problem. They’re batting for the wrong team.

You see, police officers form strong relationships with prosecutors based on mutual respect. This camaraderie is forged through the shared goal of ridding the streets of ne’er-do-wells. Sometimes, the lead investigator will share the prosecutor’s table and act as an advisor throughout the trial. Heck, sometimes they’ll even discuss the case over drinks, or a pickup game of basketball, or at the Fourth of July picnic.

They become friends.

An Adversarial System

The United States judicial system is adversarial. Defense attorneys make their living defending the same person the cop went to a great deal of trouble to arrest. This creates a philosophical difference of opinion about the character of the accused and the merits of the case. Officers don’t arrest innocent people. Or so they’d like to think. Does it happen? Absolutely. Does it change how we think of the defense team? Not a whit. If a cop and a defense attorney drink together, someone’s about to sip arsenic, their pickup game will end in sudden death, and the only reason to show up to the Fourth of July picnic is because there was a noise complaint and the officer is on-duty.

While most officers believe that defense attorneys inhabit a tenth ring not envisioned by Dante, occasionally, even a prosecutor fans the flames. Law enforcement investigators present their cases to the prosecutor’s office when they feel it is a complete package— a conclusion not always shared by the prosecutor. This disparate perspective often arises from standards that are triggered at various phases of an investigation. For example, an officer only needs probable cause to believe a person committed a crime in order to make an arrest or pursue a warrant. But to secure a conviction, the prosecutor must present a case that demonstrates beyond a reasonable doubt that the person did the dirty deed. Big difference—and one that can foster animosity between an officer who knows said knucklehead did wrong, and a prosecutor who may agree, but can’t prove it.

Evidence Is Not Truth

Despite what cops, attorneys and expert witnesses claim, evidence, on its own, is not truth. Evidence supports or undermines an argument. There is rarely a smoking gun and instead, evidence is pieced together until a reasonable conclusion can be drawn. Police officers testify to what they observed, the actions they took, and the items they gathered. I’ve presented evidence that has helped both the prosecution and the defense in the same trial. My job is to present the facts without embellishment or bias. It is the prosecutor’s job to build it up, and the defense attorney’s task to tear it down. One way the defense team attacks the validity of evidence is to attack the credibility of the officer presenting it. It’s hard to leave a courtroom feeling warm fuzzies for an attorney who just tried to convince the jury that you are an unprofessional nincompoop.

Crime and Punishment

Call it petty, but when the defense prevails, a cop’s first thought is that a miscarriage of justice took place, not that his or her own lack of preparation or investigation played a part. Truth is, it’s difficult to obtain a conviction. A key piece of evidence at trial may be been overlooked at the initial investigation, witnesses recant, juries are fickle and media coverage can sway perception.

What’s this mean for your writing? Everyone in a courtroom can feel righteous, but not everyone can be right. Opportunities for conflict abound. After all, it’s an adversarial system.

Micki Browning

 

MICKI BROWNING, an FBI National Academy graduate, worked in law enforcement for over two decades. She retired as a division commander leading the investigations, internal affairs, and training bureaus. She’s a member of Sisters in Crime and active in the Guppies chapter.

 

Supreme Court Trivia

Reblogging today, from NW Sidebar, the blog of the Washington State Bar Association, with thanks to blogger Shanna Lisberg.

When I first started law school and began reading opinions, I was surprised to see how many judges and justices had first names starting with J. After all, they signed their opinions “Harlan, J.” and “Marshall, J.” Took me longer than it should to have to realize that J. stood for Justice or Judge, not John or James…

“The Supreme Court of the United States first convened on Feb. 2, 1790, in New York City. Over the past 220 years, the composition of the Court has undergone many changes. Prior to the Supreme Court Building’s completion in 1935, the Court had met in a variety of locations and, to date, 108 men and four women have served on the court. From the most common first name of Supreme Court Justices, to relatives serving on the court, here are five facts you may not know about our highest court in the land.

  1. Of the 112 justices appointed to the court, 13 have been named John and 11 have been named William. Of the 17 chief justices of the United States, four have been named John, including John Jay, the first chief justice, and our current chief justice, John Roberts.
  1. Justice Clarence Thomas is the only justice to have served as grand marshal at the Daytona 500. He is a NASCAR fanatic and car enthusiast and enjoys traveling the country in his RV, frequently parking overnight at Wal-Mart parking lots.
  1. Thomas Johnson had the shortest tenure on the Court. Justice Johnson was confirmed by the Senate on Nov. 7, 1791, and was sworn in on Aug. 6, 1792. He authored the Court’s first written opinion and served on the court until Jan. 16, 1793, when he resigned, citing poor health and the difficulties of circuit riding. He served 163 days.
  1. There have been multiple instances of relatives serving on the court. Justices John Marshall Harlan (1877–1911) and John Marshall Harlan II (1955–71) were grandfather and grandson. John Marshall Harlan is best known for his role as the lone dissenter in the Civil Rights Cases andPlessy v. Ferguson. Justices Lucius Quintus Cincinnatus Lamar II (1888–93) and Joseph Lamar (1910–16) were cousins. Justices Stephen Johnson Field (1863–97) and David Josiah Brewer (1889–1910) were uncle and nephew and served on the court together from 1889 to 1897.
  1. Justice Byron (“Whizzer”) White is the only justice to be in the College Football Hall of Fame. He also played for both the Pittsburgh Pirates (now Steelers) and the Detroit Lions, and led the league in rushing yards in 1938 and 1940. He earned $15,000 a year, making him one of the first “big money” NFL players.
About the Author

Shanna LisbergShanna Lisberg. Shanna is an attorney who lives and works in Seattle. You can find her most weekends at either the bookstore or library, adding books to her never ending to-read pile.”

The Case of the Phony Feebie

Searching for a colorful criminal opportunity for your WIP? We all know it’s a federal offense to impersonate an FBI agent, but some folks will do anything for free coffee. This AP article reports on the case of Steven Goldman, an Air Force vet and convicted swindler who wasn’t quite talented enough to fool the Boomtown Babes who staff a coffee shop in Williston, N.D., center of the Bakken oil boom.

Goldman’s fakery includes passing himself off as an FBI agent, claiming a government rate for a hotel room, conning free limo rides and helicopter rentals, and snagging free dog treats for a non-existent K-9 unit. Once again, I find myself admiring the tremendous creative energy some crooks display, and wishing they could channel it into more positive efforts.

Ten Great Novels on Legal Issues

(Originally published in The Writer, September 2013)

To Kill a Mockingbird, Harper Lee (1960)
None of us will ever be Atticus Finch, but we’re better for trying.

snow fallingSnow Falling on Cedars, David Guterson (1995)
Trial and prejudice, with brilliant courtroom dialogue.

The Firm, John Grisham (1991)
A newbie with a dog named Hearsay outwits his wily bosses.

Rumpole of the Bailey series, John Mortimer (1978-2009)
Taught me everything I know about the British legal system.

Presumed Innocent, Scott Turow (1987)
The epitome of the legal thriller.

AnatomyAnatomy of a Murder, Robert Traver (1958)
A classic by a Michigan judge, basis of the fine and fiery movie.

Every Secret Thing, Laura Lippman (2003)
A castoff Barbie, a missing baby, and two young girls—a heart-breaking look at juvenile justice.

If I’d Killed Him When I Met Him, Sharyn McCrumb (1995)
Domestic violence is nothing new.

The Trial, Franz Kafka (1925)
Still gives me the chills.

indian lawyer

 

The Indian Lawyer, James Welch (1990)
A tale of anger and revenge, beautifully told.

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