Image: Matthew Loffhagen
If your life is going well, you probably don’t have much firsthand knowledge about being arrested. That can make it difficult to write convincing crime or thriller fiction, but worry not; I’m here to help.
If, on the other hand, you’ve pursued legal studies or have been on the receiving end of the long arm of the law, this post isn’t for you. You know enough, friend!
For those of you who are still here, this post follows on from our previous posts about what authors should know about the law (part one and part two) and our guide to legal fiction, and acts as a straightforward 101 for authors who’re looking to authentically represent an arrest in their work.
I’ll cover the actual process here and, in addition, attempt to clarify a few details and dispel a few misconceptions. So, if you’d step out of the vehicle, I’m going to have to ask you to come with me.
As I discussed in the aforementioned writers’ guide to law, it’s important not to confuse detention with arrest. The police can temporarily detain anyone they suspect of either committing a crime or having knowledge of a crime/complaint. They’ll typically question you and, depending on what state you’re in, may ask for your ID (in twenty-six US states, the officer cannot force you to show your ID.) They can legally issue a frisk or a consensual search, but cannot conduct a full search of your person, surroundings, or car without arresting you. Which leads us to…
For an officer to arrest you, they need one of two things: either a warrant signed by a judge or probable cause – that is, a pretty solid reason to suspect you’ve been up to no good. This means that a police officer can’t just arrest you because they have a funny feeling about you; they have to have access to facts that could reasonably suggest you’ve committed a crime. Probable cause must fit into one of four categories:
- Observation – the officer sees, hears, or smells something that indicates you may have committed a crime.
- Circumstantial evidence – the officer has reason to believe you may have committed a crime due to context and circumstance. For example, if someone was shot and you were found exercising your right to open carry on the next block.
- Expertise – the officer exercises their training to identify movements, gestures, utterances, or objects in your possession that may indicate you’ve committed a specific crime.
- Information – the officer may act on information gleaned from a trusted source that suggests you may have committed a crime.
So, if your fictional police are picking people up based on suspicion alone, know that they’re breaking the law themselves. This might be fine for your rogue cop who doesn’t do things by the book, but if corruption and roguishness aren’t supposed to be part of your police officer’s character, make sure they have a reason to arrest.
Of course, being arrested is not the same as being found guilty – there’s still a lot to go through before your arrested character faces a judge.
Directly following the arrest, the police will follow a set of procedures. First, the officer may be required to read you your Miranda rights. (But not necessarily! More on this later.) These are:
- You have the right to remain silent and to refuse to answer questions.
- Anything you say may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
- If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
It’s worth noting here that while the reading of Miranda rights is closely associated with handcuffing, cuffs aren’t always applied; indeed, cops will typically only handcuff you if they feel you pose a threat (or, of course, if they simply want to exercise some power.)
It’s only after your arrest that a police officer can legally perform a full search of you, your immediate surroundings, and/or your car. Either before or after the initial search, you should be taken to the station, where they may arrange a search of your home. Note that police are obliged to produce an inventory of your confiscated possessions, which you/your character will be required to sign. (If, of course, you believe it’s accurate.)
You’ll then be booked: your biometrics will be taken and your personal information recorded. You may be required to give a handwriting sample or else participate in a line-up. Note that if you’re not booked within a few hours of being arrested and detained, your attorney can go to a judge, who may require the police to come to court to establish whether or not you’re being held lawfully.
It’s only after you’ve been booked that your case is sent to the appropriate prosecutor’s office, where a decision is made as to what charges (if any) will be filed. Usually, due to your/your character’s right to a speedy trial, the prosecutor will have to file charges within seventy-two hours (though it’s forty-eight in some states), after which you’ll be taken before a court to plead guilty or not guilty. In the meantime, your character will languish in a cell unless they’ve paid bail, a monetary deposit made as insurance that allows them to escape imprisonment during the run-up to the trial.
True or false?
Thanks in part to TV crime dramas, many misconceptions abound regarding the arrest and post-arrest process. I’m going to channel my inner myth-buster here so as to help you avoid cliché and achieve authenticity in your fiction.
The one phone call
‘I’m entitled to my one phone call!’ has been a staple of crime drama for untold millennia, but this is mainly due to it being an effective plot device. In many states, you’re not specifically entitled to a phone call, but are instead entitled to hire an attorney. However, even if it’s not a specific right, you’re generally not going to have trouble accessing a phone. As long as you’re behaving yourself, officers are likely to let you make a reasonable number of calls to, say, your boss, your spouse, and an attorney.
For concrete state legislation, check out Nevada’s Revised Statutes:
Any person arrested has the right to make a reasonable number of completed telephone calls from the police station or other place at which the person is booked immediately after the person is booked and, except where physically impossible, no later than 3 hours after the arrest.– 171.153 of the Nevada Revised Statutes
So, avoid relying on this trope in your fiction – if your character gets their one phone call and is unable to get through, they’re not going to be locked away forever!
It’s common in media for apparently doomed prisoners to slip to freedom because the arresting officer didn’t read them their Miranda rights. In the real world, this very rarely happens; firstly, because an officer is only required to read an arrested person their Miranda rights if the officer intends to interrogate that person in custody, and secondly because even if an officer does neglect their duty, it only increases the likelihood that a case will be overturned, it doesn’t guarantee it. On top of that, anything an arrested person says before being read their rights can still be used against them in court!
It’s worth noting too that remaining silent is all well and good, but you are still required to provide basic personal information when asked – refusing to talk is only going to get you in more trouble.
‘I’d like to talk to my lawyer’
We know the drill: you’re read your Miranda rights and, after, you stay silent until you’re able to recruit a hotshot lawyer to run to your aid. Well, this one’s actually true – basically every legal defense lawyer will advise you to exercise your Miranda rights and give as little away to the police as possible. Be aware that police are specially trained to try to squeeze incriminating information and outbursts from even the stubbornly silent, so look for ways to communicate that in your fiction.
‘Let’s make a deal’
Another trope of police station drama is the you-scratch-my-back bargaining that apparently goes on between arrested suspects and grizzled cops. And, while it’s true that police may try to convince you that they’re in a position to bargain with you, they’re absolutely not. Rather, it’s the prosecutor who can make you a deal, which means you should have your lawyer go straight to them. This is a fun dynamic to play with in your fiction, as nothing says dirty cop like preying on a suspect’s ignorance and expectations.
And yes: while there are restrictions on what the police are allowed to promise suspects, they can sometimes lie to a suspect to get a confession. The Supreme Court has allowed police to lie about confessions from other suspects, while state courts have allowed police to lie about having found DNA evidence. So, if you want your cop character to lie and for it to be legal, check what’s permissible in your state.
Episodic TV shows have led casual viewers to assume that most court cases are wrapped up in a few days, but this isn’t the case. Indeed, it’s usually in the defendant’s best legal interests to stretch out the case for as long as possible, especially if that’s how long it takes to form a solid defense or dissuade an initially overzealous prosecutor. Depending on the severity and complexity of the case, court proceedings can last up to and even beyond a year (or, as in Kafka’s The Trial, for all eternity!)
Such is the nature of American law that I could go on writing writers’ guides about it for years and only scratch the surface. With that said, there is (I hope) value to separating the real from the fictional, which is what I’ve sought to do here. So, next time your cop is cuffing someone, make sure you’ve considered probable cause, and don’t rely on the Miranda warning loophole to get your characters off the hook!
If nothing else, I hope this post inspires you to continue your own legal research elsewhere. Good courtroom fiction relies on careful research and an ability to sift through complex processes, so get stuck in!
What are your favorite examples of arrests in fiction? Did I miss anything out? Let me know in the comments, and check out What Authors Need To Know When Writing About Law and The 6 Golden Rules Of Writing Legal Fiction.