Books, Crooks, and Counselors

How to Write Accurately About Criminal Law and Courtroom Procedure

Leslie Budewitz

• Publisher: Quill Driver Books
• Year: 2011
• Print ISBN: 9781610350198
• eBook ISBN: 9781610351218
• Topic: Languages & Linguistics
• Subtopic: Creative Writing
• Index: Languages & Linguistics

Addressing the misunderstood and misrepresented aspects of the law in today's writing, this reliable guidebook demonstrates how to use legal concepts, terminology, and procedure to create fiction that is true to life and crackling with real-world tension. Examples from actual cases are provided along with excerpts of authentic courtroom dialogue. Topics covered include criminal and civil law; differences between federal, state, and Native American jurisdiction; police and private investigation; wills and inheritances; and the written and unwritten codes that govern the public and private conduct of lawyers and judges. Providing a quick and simple legal reference, this handbook is the key to creating innovative plots, strong conflicts, authentic characters, and gritty realism.

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 u...

Table of contents

• Cover
• Title Page
• Copyright
• Table of Contents
• Introduction
• 1. Trial and Error
• 2. Legal Issues in Criminal Investigation
• 3. Crime
• 4. …And Punishment
• 5. Civil Matters
• 6. Some Terms of the Art
• 7. Wills, Probate, and Adoption
• 8. Legal Miscellany
• 9. Thinking Like a Lawyer
• 10. Thinking Like a Judge
• 11. Legal Ethics.
• 12. Research And References
• Book Links
• Acknowledgments
• Index
• About the Author