I"m thrilled to have special guest Leslie Budewitz here with us today. Leslie is a practicing lawyer who helps writers better incorporate the law into their fiction. She provides legal research and reviews manuscripts to help you understand how lawyers, judges and juries think and to recongize ways to use legal issues to make your fiction more compelling.
Leslie is here to share some tips on Common Mistakes Writers make in their fiction. She'll also be visiting the blog throughout the day and has generously offered to answer your questions. So please, comment and say hello!
Welcome, Leslie.
LESLIE BUDEWITZ
Thanks to Jeannie for the invitation. As a writer and a lawyer, I believe that getting the details right makes fiction stronger, richer, and more enjoyable. Because so much fiction involves legal issues – as part of the plot, backstory, or characters’ personal history – I started Law and Fiction (www.LawandFiction.com) to answer writers’ questions about the law. Not questions about copyright or contracts – other lawyers know far more than I do – but about the legal issues inside your stories. It’s easy to get the details of, say, a criminal trial or an adoption proceeding just wrong enough that your readers lose faith in your story. At the same time, it doesn’t take much to get those details right – and satisfy your readers.
What are the most common mistakes writers make?
The biggest mistake I see is using the wrong terms. We get tripped up by the things we don’t check because we think we know them. Many people learned what they know about criminal law from TV – and on TV, every prosecutor is a DA, or district attorney. In reality, terms vary widely. In federal court, the prosecutor is the U.S. Attorney, or an Assistant USA. In state court, terms depend on how the system is organized geographically. In states like mine – Montana – where each county has its own elected county attorney with a hired staff, the county attorney handles all criminal cases and any civil cases involving the county. That person may also be called “the county prosecutor,” “state’s attorney,” or “commonwealth’s attorney.” Some states, like Connecticut and New Mexico, divide the responsibility by district. Others confuse the issue by using both terms – in New York, for example, the prosecutor is actually called the “county district attorney.” If you’re not sure what terms are used in your story state, check this list of prosecutors’ websites: http://207.74.121.45/Prosecutor/PA-West.htm#MT.
Similarly, state court names and structures vary. Before you call the general trial court in your story the Superior Court, District Court, or even the Supreme Court (used only in New York), check the National Center for State Courts’ list of websites
You don’t need a warrant to make an arrest. How often does a fictional law enforcement officer let a suspect go because he doesn’t have an arrest warrant? An arrest warrant is a determination by a judge that sufficient probable cause exists to detain a specific person on suspicion of a specific crime. But in most cases, the officer can make an arrest on the spot if he’s got probable cause. How does he get it? Through investigation – or sometimes, by actually witnessing the crime.
Confusing “evidence” with “proof.” Direct evidence is testimony or physical evidence of a fact. Circumstantial evidence is evidence of one fact that leads to an inference or presumption of another fact. Circumstantial evidence is enough to prove a defendant’s guilt. It’s also critical during an investigation, leading officers from one clue to another – and maybe, finally, to direct evidence or to enough circumstantial evidence to get a conviction.
Consider fingerprints found on the front door knob at the scene of a crime. They establish that a particular person touched the door knob, but they don’t prove that he went in or that he committed the crime inside. Using that direct evidence of his presence, officers can investigate further – and may uncover direct evidence of his guilt, such as eyewitness testimony that he shot the victim, or more circumstantial evidence, such as a cartridge shot by a gun he owns. The fingerprints don’t prove the suspect’s ultimate guilt – but they make his presence inside more probable, and help investigators build a case, piece by piece, against him.
Mistakes in Miranda warnings. Miranda is the U.S. Supreme Court case holding that a suspect who is in police custody can’t be questioned until he’s been warned of the potential consequences of answering. Miranda warnings are only required if the person is in custody and is being questioned. If he would reasonably believe he’s free to leave, he’s not in custody – and your fictional detectives and prosecutors can ask anything they want. If your detectives are discussing between themselves about how brutal the assault was, and who could do such a thing to a nun, and the suspect volunteers that she had it coming, that he’d wanted to kill her since the fourth grade, and he wished he’d done it sooner – well, that confession is admissible even if he hadn’t been warned, because it was made voluntarily and not in response to questioning. Smart officers know that not warning a suspect can be an important tool – once he’s warned, he may clam up.
As always, be aware that there are some state-by-state variations in what warnings are required and when.
Assuming a felon can’t vote or own a gun. Recent election challenges have made us more aware of restrictions on voting by persons convicted of felonies. A handful of states bar them from voting for life. Others see voting as an important part of reintegration into the community. The trend is toward allowing persons who have completed their sentences to vote.
Other rights limited in some states include gun ownership, jury service, and holding public office. Federal convicts are barred from gun ownership for life. State laws vary widely, and may depend on the type of crime committed – obviously, violent crimes or those involving guns are more likely to trigger a ban. Some states permit a felony conviction to be considered in employment or in licensing.
Referring to guilt in a civil suit. My personal pet peeve. In criminal cases, defendants may be found guilty or not guilty (also called acquitted). But in civil cases – examples are suits for money damages for medical malpractice, for injuries from a car accident or contaminated peanut butter, or for wrongful discharge – there is no guilt or innocence. A defendant is liable or not liable.
The law can be confusing. State and federal laws vary tremendously. The range of possibilities may be overwhelming. But if you take time for a little research – to check the things you think you know and those you don’t – you’ll discover terrific opportunities to twist, deepen, complicate – or simplify – your story. Get the details right, and you can’t go wrong.
Leslie Ann Budewitz
leslie@lawandfiction.com
lawandfiction.com
17 comments
G’morning, Leslie. This is great advice! I’m lucky. I have an “in-house” attorney I can run all my legal questions by. He also has experience as a military defense counsel. Military law is even trickier than civilian criminal or civil law. While I’m patently familiar with the law and court system in my home state of Oklahoma, my WIP suspense series is set in New Orleans and the Mississippi Delta. I had to do extensive research because they even have two types of sheriffs–one that handles criminal, one that handles civil.
Those are some terrific links you’ve posted and I have them bookmarked now! Thanks for visiting today. I wish I had a question to ask, just to get you started for the day. Oh! I know the answer, but others may not, and this bugged me in a book I read not long ago: material witnesses. What are they and are they actually “arrested?”
Thanks for a great post, Leslie! As a writer with more than a passing interest in the law (and soon to be a certified paralegal specializing in juvenile dependency and family law), you’ve touched upon most of the glaring mistakes that make me want to throw books across the living room.
Another of my pet peeves, which wasn’t on your list, is the cop who rushes into a suspect’s apartment without a search warrant and without exigent circumstances. Happens all the time on television, but a definite no-no in the real world.
And you’re right about the varying terminology from place to place, too. I grew up in Canada, where the attorney who prosecutes a criminal case is called variously a Crown Counsel, Crown Attorney, or Crown Prosecutor, depending on the province in which the case is being tried. And, too, different kinds of cases proceed in different fashions, even within the same court. In my county, foster care cases run through the juvenile division of the Superior Court, but there’s a whole different set of rules and protocols for juvenile dependency cases that makes them operate rather differently than other kinds of cases. (For example, juvenile dependency proceedings in California have a different standard for the admissibility of hearsay evidence than other civil or criminal matters.)
So I heartily second your suggestion that writers check the specific terminology of the places in which they’re setting their stories. Fortunately, many courts have Web pages these days, so that’s usually fairly easy to accomplish.
Hi-ho, SIlver! Thanks for your comments. Military law, like admiralty law, is a field unto itself, and you are lucky to have your own private counsel.
A material witness is simply one believed to have critical or “material” information needed for a law enforcement investigation, a grand jury investigation, or a criminal trial. he may be a suspect in the case — or just a witness. The states and federal government have statutes permitting a material witness to be held in custody for a time to ensure that he remains available and shows up in court to testify, for a grand jury proceeding or trial. Or the witness may be held until he can be deposed — that is, his testimony is taken by counsel, under oath, for later use in court if he is unavailable to testify in person, typically because he has left the jurisdiction. A material witness is not considered to be under arrest because he hasn’t been charged with a crime. If he believes he is being held too long, or in poor conditions, or without cause, he can use habeas corpus to challenge his custody and demand release
If you want to use the material witness statute to create problems in your story, look no further than the controversy surrounding its use, under the Patriot Act, to hold witnesses — for unspecified reasons — after Sept 11, 2001.
Happy writing!
Leslie
Hi, Tammy — Thanks for your note. And you’re absolutely right about the need to check procedures for juvenile court matters in your story state. Court staff and prosecutors are very willing to answer writers’ questions — as are law professors! Great resources.
“Another of my pet peeves, which wasn’t on your list, is the cop who rushes into a suspect’s apartment without a search warrant and without exigent circumstances. Happens all the time on television, but a definite no-no in the real world.”
Ah, yes. Well, I had to stop the list somewhere! An officer can also enter a residence without a search warrant with the consent of a person who reasonably appears to have the right to consent. The person giving consent does not have to be a resident. Nor an adult. Can a kid give valid consent? Depends on age and circumstances. A sixteen-year-old, probably. A six-year-old, no.
“Exigent circumstances,” for those who don’t know the term, are simply emergency conditions that justify an officer going into a resident without a warrant or consent, typically to prevent the commission of a crime or the destruction of evidence. A common example is when the door opens and the officer sees a person inside notice the officer, grab drugs off a table, and dash to the bathroom. Or, if the officer sees a person inside holding a gun to another person, or heading for the window to escape.
Happy writing!
Leslie
Hi Leslie, Thanks so much for being here today! Some great things you noted as for what we take for granted. You are so right, we watch enough law and cop shows on television, we begin to automatically think that what we’ve learned as the proper wording or procedures are the correct ones…and that’s not always so. I never really considered that terms would be different by state, but it completely makes sense. And thanks for the links, as well – very valuable resources.
Would you say there is a tv show that gets it right or one that gets it terribly wrong? 🙂
Jeannie — I’ll confess, most of my TV-watching is the Home & Garden channel! In law, medicine, forensics, TV writers take shortcuts to keep the action moving. The details can be really slow and uninteresting. Knowing what to leave out is a real challenge — in fact, one novel I read prompted me to write a column on the subject (Death by Details, on the columns page of my website ) With that in mind, I think Law & Order does a good job keeping the legal and police procedures reasonably accurate while telling a good story. Except that most judges wouldn’t put up with all the interruptions by counsel — even from Jack McCoy!
(I can’t figure out how to post my picture — but for the curious, it is on the Who page of my website.)
Happy writing!
Leslie
Hi Leslie!
What a great post! I actually have a contemporary that I wrote (and then shoved in the deepest darkest corner of my laptop) where my hero is a lawyer. Your tips will really help when I start polishing it up!
Thanks!
Eliza
Eliza –
Good luck with the ms., and let me know if I can help!
Leslie
I enjoyed reading your blog today, Leslie, and bookmarked your site for future reference. Thanks for sharing you expertise with us today!
You’re welcome, Judy!
Happy writing!
Leslie
So much great information, Leslie. Thanks for sharing all of that. I know I’ll be using it in the suspense I write.
🙂
Christine Clemetson
Hi, Leslie! Thanks so much for being here.
I have a couple of questions about preliminary hearings. Are they run like trials, where the witnesses have to be present, or do the attorneys just present names and brief descriptions of who their witnesses are?
Could a judge decide at a preliminary hearing that the evidence clearly shows the defendant is not-guilty, and dismiss the charges with prejudice?
Thanks again!
Katrina
Christine, you’re welcome, and good luck with your suspense novel!
Katrina, good questions. A lot depends on local practice. Generally, there is a “preliminary hearing” or “omnibus hearing” where counsel and the judge work out big issues, like setting bail, or nit-picky stuff like scheduling the trial; there may be other pre-trial hearings for specific reasons, like a motion to suppress a confession, or a motion to dismiss. They won’t usually be called “preliminary hearing,” though — that term has a pretty specific meaning. The defendant always has the right to be present whenever his case is before the judge, no matter how minor the issue. He can waive that right if he wants to. If you don’t want the defendant present, some courts use video cameras to avoid the expense of bringing someone from the jail to court for procedural hearings, or if the defendant has been violent or disruptive.
Defense counsel could move to dismiss the charges, and the judge could grant the motion after a hearing, but that is not common. To get the charges dismissed, the defense might bring in testimony from other witnesses, e.g., a clear alibi or identification, or forensic evidence, e.g., DNA or fingerprints, that exhonerated the defendant. Another possibility: the only evidence against the defendant is excluded, and the prosecutor agrees the case should be dismissed.
Good luck with your story!
Leslie
Thanks, Leslie! That helps a lot.
I’m talking about the hearing at which the judge decides whether there’s enough evidence to bind the case over for trial.
In my novel, I used both of your examples: the defense attorney moves to suppress a confession AND brings in testimony (mostly forensic accountant testimony but also handwriting evidence) that appears to prove the victim is still alive.
Sounds like I’m on the right track, though I’d better double check all the language.
May I ask another question? What determines whether a defendant has a court trial or a jury trial?
Thanks again. It’s most generous of you to share your expertise.
Katrina, sounds like you are on the right track.
“I’m talking about the hearing at which the judge decides whether there’s enough evidence to bind the case over for trial.” Seems early to me, though it’s certainly possible — you’d probably need to have evidence exhonerating your suspect, not just a lack of evidence to convict. Investigation typically continues after charges are filed, so prosecutors may still be gathering additional evidence.
“What determines whether a defendant has a court trial or a jury trial?” Defendants have the right to a jury in any felony case, and in some misdemeanors, depending on state law. A defendant may choose to waive that right but rarely does, because verdicts in criminal cases have to be unanimous, and all you need is one vote to acquit — unlike a bench trial, where there is only one vote!
My thanks to Jeannie and all who asked questions. I’ve enjoyed my visit today. There’s lots more info on my website, in columns and Questions of the Month, so please take a look!
Best wishes,
Leslie
Thanks, bunches! Your website looks great, and I really appreciate you offering the information, both there and here.
Hi Leslie and Jeannie,
Really fabulous post! This is full of wonderful information. I have printed it out and am bookmarking your site. Thanks for sharing with us!
Renee