Books, Crooks, and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure

Introduction

A legal thread runs through the fictional world. Writers of novels, short stories, plays, screenplays, and television scripts often find themselves telling stories that involve legal issues—whether those issues are central to the plot, fill in the backstory, or illustrate an aspect of a character’s personal history. Mysteries and thrillers in particular involve the real world of the law, courts, and crimes. Writers want to use the law realistically and accurately, while telling a good story.

But the law can be complicated and confusing. Even writers who enjoy research can be daunted by the volume of resources available or overwhelmed by misinformation. Writers can easily feel like Alice after she’s fallen down the rabbit hole, unable to sort truth from illusion. With a better understanding of the legal world, writers can use the legal aspects of their story to full advantage and avoid the mistakes that annoy readers.

Books, Crooks and Counselors teaches you, the writer:

•  The Facts. With fifty states plus the federal and tribal systems, the American legal system is enormous and varied. Figuring out the terminology and procedure takes time away from your focus on plot and character, language and setting. Is the prosecutor known as the district attorney or DA (New York), the county prosecutor (Washington State), or the county attorney (Montana)? Will a grand jury be called? Might a character’s conviction be appealed? How long does an appeal take, and will the process affect your story’s time line? Books, Crooks and Counselors shows you how to identify critical legal issues in your stories and handle them correctly, using the right terms.

•  The Thinking. Lay people don’t think about the law the way lawyers and judges do. Courtroom behavior follows its own code, largely unwritten and largely unknown to the public. This book gives you the insight to create more compelling characters and action.

•  The Dialogue. Courtroom dialogue is a unique language. This book answers writers’ questions about common legal terms and phrases.

•  The Procedure. Whether the protagonist is a professional or an amateur, crime stories often involve both an official and an unofficial investigation. This book answers questions about legal procedure, such as when a suspect is arraigned, how bond is set, and other inside details that will add veracity to your story.

•  The Setting. This book helps writers visualize how a law firm works, how a courthouse runs, and how a lawyer navigates his or her way through the system.

Books, Crooks and Counselors answers questions on more than 160 legal topics in twelve chapters. Because state law varies, answers focus on legal concepts and principles, and on common variations. Some questions relate to civil law, such as adoption, probate, and malpractice. Where civil and criminal procedures differ significantly, I’ve explained the differences. I’ve also included a short guide to research, with resources for finding local laws and procedure.

Readers expect writers to get the facts behind their stories right—or, at the very least, to create a plausible scenario that seems logical and true. Yet it’s not enough to know what the law is; writers need to possess the knowledge of how best to use a legal problem, procedure, or scenario to advance their story. I’ve practiced law for more than twenty-five years, in two states, in the federal system, and in tribal courts. This book gives writers the benefit of my experience, tempered by my perspective as a published fiction writer.

A Few Notes

Of course, nothing in this book is intended as legal advice, and nothing included here should be relied on in handling specific real world legal problems. These pages are intended solely for use by writers devising fictional plights.

Keep in mind that because laws and procedures vary widely and sometimes change, you should check the status of any law that affects key elements of your story. I’ve been as accurate as I could be, but the law is always in flux. I hope by the end of this book you’ll know how to research key issues yourself.

Many resources and references mentioned here are websites. Whenever you see Check Book Links in the text, you’ll find a link on the Book Links page on my website, LawAndFiction.com.

Most of the questions in this book came from writers; however, I created others to address topics writers often ask about at mystery conferences or on Internet discussion lists. A few involve problems I’ve seen in books and manuscripts. I give my thanks to the writers who’ve asked the questions. I hope my answers give writers of all variety of stories concrete, reliable information so you can portray legal predicaments credibly and accurately, and keep on thrilling us all with the stories you tell.

1

Trial and Error

THE TRIAL IS THE DRIVING FORCE IN CIVIL and criminal litigation, and the focal point of most legal plots and subplots. In this section, we’ll examine the role of the trial in the legal process, then turn to a few key topics where writers can add realism and avoid pitfalls. First, we’ll look at the pretrial process—the stage that starts when charges are filed and ends when the jury is called. We’ll talk about some common issues related to evidence and witnesses, and look at the burden of proof—who’s got it, and what it means. Last, we’ll look at what really happens on appeal.

A. JUDICIAL SYSTEM BASICS

Getting the facts right—even in fiction—helps writers eliminate the risk that an astute reader or viewer will lose interest and put a book aside or change the channel because the world the writer has created no longer seems realistic. Like most citizens, writers know the basics of the American judicial system, but with fifty states and the federal system often structured differently and using varied terminology, the details can be confusing. So, to avoid what lawyers call reversible error, the place to start is with a primer on the system and terminology.

What’s the difference between a criminal action and a civil action?

A criminal action charges the suspect with a crime—a violation of the rules of society as agreed on and adopted by the state or federal legislature, codified in the criminal statutes. A crime is an offense against the peace and order of society. In theory, the wrong or offense is against society, not just the individual victim. That’s why crimes are prosecuted in the name of the government: the United States of America against Jeffrey K. Skilling, the State of Florida against Theodore Robert Bundy, the People of New York against Bernhard Goetz.

In contrast, civil law involves private rights. Examples of civil cases:

• suits for money damages, such as personal injury claims, contract disputes, and claims for property damage;

• suits by the government for violations of statutes that aren’t criminal, e.g., tax or professional licensing issues;

• domestic relations cases, such as custody, paternity, support, dissolutions of marriage, or adoption; and

• guardianship and probate.

Of course, civil cases aren’t always civil—the parties can be just as nasty and contentious as in a criminal case.

Of course, civil cases aren’t always civil—the parties can be just as nasty and contentious as in a criminal case.

(The phrase civil law also refers to a legal system derived from the French system—a modified version is used in Louisiana—in contrast to the common law system, descended from English courts, used in American federal courts and most states.)

My story involves a courtroom scene. Should I set it in federal or state court?

It depends on the case. Two court systems—federal and state—exist side by side, with different, sometimes overlapping, jurisdiction. Jurisdiction means a court’s authority, and it may be defined by geography, subject matter, or the amount of money at stake. (Specialized courts, like tax and bankruptcy courts and state workers’ compensation courts, are rarely the setting for thrilling drama, either in real life or on the page.)

Simply put, federal courts handle federal issues. On the criminal side, examples abound:

• Violations of federal statutes making specific acts criminal. Most are easily recognized as crimes: drug possession or sales, kidnaping across state lines, firearms offenses, and hundreds more. Some regulatory offenses, such as pollution violations, may also be crimes.

• Virtually any offense related to securities (stocks and bonds) or banking. Martha Stewart was charged with obstruction of justice for lying about a stock sale—a federal offense. Federal criminal charges filed against Enron executives Ken Lay and Jeff Skilling asserted conspiracy, insider trading, wire fraud, and bank fraud. The infamous Montana Freemen violated federal banking laws by circulating false bank notes.

• Immigration offenses.

• War crimes and acts of terrorism, which may also involve military courts.

• Crimes involving interstate communication systems, such as postal fraud, wire fraud, and cybercrime.

• Crimes committed on federal property, such as a prison, or an American embassy in a foreign country.

• Most crime committed in Indian country (reservations and other specified areas), including violent crime, corruption, and gaming violations. Under a federal law known as PL-280, some states exercise full or limited criminal jurisdiction over Indians in Indian country. For example, on the Flathead Reservation in western Montana, the state investigates and prosecutes all felonies and some misdemeanors, while the tribes handle other misdemeanors and all juvenile matters. But on other reservations, most crimes are federal matters, as portrayed in Tony Hillerman’s Leaphorn and Chee series.

State court systems handle the majority of criminal and civil litigation— estimates are as much as 95 percent. State courts handle criminal cases of all variety. If a crime is a violation of state law, the state prosecutes.

Civil suits involving personal injuries, property damage, or contracts may be federal or state cases. Suits between individuals or companies land in federal court if they involve a federal issue, such as pension rights or violations of federal discrimination laws, or if they are between citizens of different states (called diversity jurisdiction) and involve more than $75,000. However, some areas of civil law are handled only by state courts. These include domestic relations cases, probate, adoption, and guardianship.

My story involves a drug deal violating both state and federal law. Who prosecutes?

Both state and federal authorities may file charges, then decide who will pursue the case and who will wait. Or they may agree in advance that only one will file charges. The decision may be made in an informal conversation between the prosecutors, in person or otherwise, or during a more formal meeting, particularly if multiple jurisdictions are involved. Most such discussions are collegial. If no agreement is reached and both state and federal prosecutors file charges, federal law requires state prosecutions to be suspended while a federal case arising from the same incident is pending, even if the charges differ. Factors in the decision include the nature of the crime, which entity has better resources to pursue the case, and the penalties in each jurisdiction. If an incident violates one federal statute and four state statutes, the state will probably take the lead, unless the federal crime is major and the state crimes are minor.

My bad guy kidnaps a banker in one state, holds him hostage in another, then kills him. Where should he be prosecuted?

A string of crimes crossing state lines is distressingly common. The state where the suspect is arrested has the right to prosecute first. But states generally respect the rights and interests of other states, and the arresting state may send the suspect to the first state and wait in line if the crimes committed there occurred first or were more serious. If the crimes committed in the second state were relatively minor, it may choose not to prosecute.

The state where the suspect is arrested has the right to prosecute first.

In May 2005, Joseph Duncan murdered a woman, her boyfriend, and her teenage son in northern Idaho and kidnaped her younger children, a boy and a girl. The three camped in Montana for several weeks, where Duncan molested both children and killed the boy. He returned to Idaho with the girl and was arrested when a sharp-eyed waitress recognized her from published photos.

Idaho had the right to prosecute the first three murders and the kidnaping. When Duncan crossed state lines with the children, the kidnaping became a federal crime, giving the United States jurisdiction to prosecute. Federal authorities could prosecute the boy’s homicide in the state where the kidnaping occurred—Idaho—or where the homicide occurred—Montana. Montana could also prosecute the kidnaping (because Duncan held the children there), as well as the molestation and homicide.

The prosecutors discussed charges and priorities. Idaho, where Duncan was arrested, filed charges first. Federal charges followed. Ultimately, he was convicted in Idaho and pled guilty in federal court, resolving all charges without the necessity of further prosecution.

In January 2007, Duncan confessed to killing two girls in Washington State and a boy in California; other states are still investigating him for child rape or murder.

Sometimes the waiting line is long.

On the news and in TV shows, I hear some judges referred to as justices. What’s the difference?

The difference in title is a mark of respect for the office. Justice is reserved for the members of the U.S. Supreme Court or a state’s highest court (also usually referred to as Supreme Court). Members of other courts are called judge. A notable exception: In New York, the general trial courts are called Supreme Court and County Court, served by both justices and judges, the intermediate appellate court is the Appellate Division (judges), and the highest court is the Court of Appeals (judges). So check before you write.

Despite the formal title, a justice of the peace is a judge, often called the JP.

A judge may also be referred to as the court.

In person, the correct term of address is Judge, Justice, Chief Justice, or your honor. Out of their hearing, of course, judges and justices may be called many other things.

I’d like the criminal charges in my story to be filed in federal court. What’s the structure and terminology for the federal system?

There are three levels of federal courts:

1. The District Court, also called the trial court. Jurisdiction is defined in the Constitution, Art. III, Sect. 2. Most action occurs at the trial court level, so most stories will be set here.

2. The Court of Appeals, which is divided into twelve regional courts, also called circuit courts, plus the Federal Circuit, which hears specialized appeals such as patent claims and international trade cases. These are sometimes called the Circuit Court or by number, e.g., the Ninth Circuit. Judges are appointed from throughout the circuit. While the circuit’s official headquarters are in one city, e.g., San Francisco for the Ninth Circuit and Denver for the Tenth, individual judges may have their offices or chambers in a federal courthouse or office building anywhere in the circuit.

3. The Supreme Court, the court of last resort.

Each state has at least one federal district, with a Chief Judge who handles administrative matters in addition to hearing cases. A district may cover part of a state—the Eastern District of New York, for example, covers several counties and includes Queens and Brooklyn. Or, it may cover an entire state, e.g., Delaware, Minnesota, Wyoming. A district may be split into geographical divisions, each with its own courthouse. In sparsely populated states, federal judges travel regularly. Some courts use video-conferencing to conduct procedural hearings.

Federal judges employ secretaries and law clerks (lawyers, often recent graduates, who research the law). Judges and their staffs work closely with the Clerk of Court, an appointed position. Senior or retired judges may work part-time, which helps the courts manage their case loads. Retired Supreme Court Justice David Souter regularly hears cases on the First Circuit, covering New England.

Federal cases are appealed from District Court to the Court of Appeals. Most decisions are made by a three-judge panel, but larger panels occasionally convene. Some cases are decided based on written briefs without oral argument.

Cases may then be appealed to the United States Supreme Court by petitions called writs of certiorari, or cert. Roughly 7,000 such petitions are filed each year, and about 100 are accepted. The Supreme Court has discretion to decide which appeals it will consider, and it may also consider state court cases that raise federal constitutional issues. If the Supreme Court decides not to take an appeal, the most recent court decision stands.

Remember that the Court reviews the constitutionality of statutes and government actions, and interprets statutes—it does not determine their wisdom or effectiveness. The Supreme Court is also the trial court for actions between states or by foreign governments, and the Chief Justice presides over presidential impeachments.

Remember that the Court reviews the constitutionality of statutes and government actions, and interprets statutes—it does not determine their wisdom or effectiveness.

Woodward and Armstrong’s juicy classic, The Brethren: Inside the Supreme Court (1979), illuminates the Court’s daily workings, and Jeffrey Toobin gives an updated perspective in The Nine: Inside the Secret World of the Supreme Court (2007).

Who gets to be a federal judge?

Federal judges are appointed by the president with the advice and consent of the Senate. In practice, this means the president nominates candidates—after consulting with the state’s senior senator—and the Senate holds confirmation hearings. Although the Constitution sets no requirements, such as age or education, the Department of Justice evaluates potential candidates. The American Bar Association (ABA)—a voluntary national organization of lawyers—assists in the process by rating prospective nominees’ qualifications for integrity, professional competence, and judicial temperament. The Bush administration chose not to submit names to the ABA before their official nomination, although the ABA evaluated the nominees at the request of the Senate Judiciary committee. The Obama administration has resumed the practice of allowing potential nominees for lower court positions to be evaluated before nomination. While most judicial nominations fly under the radar, some develop a higher profile because of the nominee’s prior decisions, outside activities, or even his or her spouse’s work. Or, a nomination may be held up by unrelated partisan politicking. Imagine the fictional possibilities.

Federal judges are appointed for life—a critical factor in preserving the independence of the judiciary and assuring that decisions are impartial and made without fear of recrimination. Federal judges may be impeached for misconduct, including criminal convictions, and tried by a streamlined version of the process used against the president; if convicted, they are removed. The process is rarely used—Congress has impeached only fifteen federal judges, convicting and removing from office only eight. However, the cases often involve fascinating personal trainwrecks that could make great plots or subplots.

Federal judges are appointed for life—a critical factor in preserving the independence of the judiciary.

Nominees to the federal bench usually share the president’s political philosophy, or at least his political affiliation. But surprises do occur. In 1970, Richard Nixon nominated Harry Blackmun, a Court of Appeals judge, to the Supreme Court and expected a conservative. But Justice Blackmun wrote the majority opinion in Roe v. Wade (1973), the case that recognizes a right to privacy in the federal constitution and guarantees a woman’s right to choose, and many observers claim his judicial philosophy became more liberal over time. The justice, though, maintained that the rest of the court simply became more conservative. New York Times Supreme Court reporter Linda Greenlaw’s Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) draws on his extensive personal papers to examine a long and fascinating career.

And, while Earl Warren ranks as one of the greatest chief justices—for his leadership as much as his opinions—the Republican California governor and former prosecutor departed so much from Dwight Eisenhower’s expectations that the president called the appointment one of his biggest mistakes.

If I set my story in state court, what structure and what terminology should I use?

State court systems vary widely. The basic structure looks like this:

Courts of Limited Jurisdiction: Common names for these include county court, district court, justice court, city or municipal court, traffic court, and small claims court. These courts handle only the types of cases specified by statute, such as misdemeanor criminal cases, initial appearances in felony cases, traffic claims, or civil cases involving less than a specified amount (ranging from $500 to $10,000 and up), and, in some states, domestic relations cases. Some states do not require judges in these courts to be lawyers.

In Margaret Maron’s long-running Deborah Knott mystery series, Judge Knott, a lawyer, serves at this level in the North Carolina courts.

Courts of General Jurisdiction: Most action occurs here. These courts, the general trial courts, handle most criminal and civil cases. Their names vary: Superior Court (California, Washington State), District Court (Montana, Wyoming), Circuit Court (Illinois, Oregon), and even Supreme Court (New York).

A few states—most notably Texas—separate civil and criminal cases. Some states maintain specific courts at the limited or general level for probate, youth, or family matters. This specialized focus improves efficiency, but may accelerate burnout for judges and staff.

Intermediate Courts of Appeal: Many states have an intermediate Court of Appeals, a stop between the general trial court and the state’s Supreme Court. New York calls this court the Appellate Division. Texas and a few others separate civil and criminal appeals, and some less-populated states do not have an intermediate appellate court.

These are workhorse courts, hearing thousands of appeals each year. Jurisdiction is mandatory, meaning the court must accept any case appealed.

Highest Court of Appeal: A state’s Supreme Court is its court of last resort. New York and Maryland call their highest court the Court of Appeals, rather than Supreme Court. Jurisdiction is largely discretionary, meaning that one party must petition the Supreme Court to accept an appeal in a case already decided by the intermediate appeals court, or to accept an appeal directly from the trial court. Jurisdiction is mandatory in some cases, e.g., capital cases (those punishable by death), and in states without an intermediate court of appeal.

NOTE: Writers of historicals, be aware that court names and organization may have changed over time.

TIP: Expect readers familiar with your setting to know what local courts are called. For greater credibility, use the right names. The National Center for State Courts maintains a directory of state court websites, including a state-by-state court structure chart. (See the Book Links section at the back of this book.)

A lawyer in my crime novel aspires to become a judge. How are state court judges chosen?

Methods of choosing state court judges vary widely. In some states, judges are elected; mid-term vacancies are filled by appointment and the appointee must run for election at either the next general election or the end of the term. Unopposed judges may face a retention ballot, meaning voters are asked whether to retain the judge. If Mr. No wins, to quote a Montana judge, the resulting vacancy is filled by appointment.

In other states, judges are appointed, typically by the governor with advice from a judicial nominations commission. A third variation is a combination, with positions in some types of courts elected and others appointed. The National Center for State Courts website gives state-by-state particulars. (See Book Links.)

I’ve heard about drug courts and would like to use one in my novel. Can you tell me how they work?

Drug courts are special programs operated within a state’s existing court system. Their purpose is to give defendants with addiction problems the opportunity to avoid jail, treat their addictions, and turn their lives around. If they complete the program, drug or alcohol-related convictions are taken off their record.

Drug courts typically handle only adult defendants charged with nonviolent misdemeanor drug or alcohol offenses. Not all applicants are accepted. Some defendants choose not to participate—jail time is easier. If your character doesn’t follow the program, he can be sanctioned or dropped, which usually means going to jail.

These programs involve intensive oversight by a team of judges, prosecutors and defense counsel, social workers, chemical dependency and mental health counselors, and other professionals. Obviously, such close supervision is expensive, but the programs aim to save money by reducing time in custody, preventing recidivism, and cutting the costs to courts, law enforcement, and victims for re-arrests. Success rates and cost benefit figures vary, but the National Association of Drug Court Professionals says 75 percent of graduates remain arrest-free for at least two years and that cost savings range from $4,000 to $12,000 per participant. (See Book Links.) Other studies show that graduates tend to stay in treatment programs, including AA, far longer than other defendants. Your character may return in a sequel clean and sober, or back in trouble, whichever suits your story.

Other intensive supervision courts focus on DUI, mental health, families, and fathers. By 2010, more than two dozen courts nationwide focused on veterans who had committed crimes, addressing the special needs of vets with post-traumatic stress disorder (PTSD), traumatic brain injury, and other combat-related issues.

In 2006, the Billings, Montana, drug court graduated its first defendant. In twelve months, the twenty-one-year-old drug user and dealer:

• appeared