Law is one of the basic cornerstones of modern civilization, and its omnipresence is something to which most of us have grown used. Whether you have much contact with cops, lawyers, judges, and criminals or not, you’ll know enough about the ephemera and aesthetic of modern law to be able to conjure a hazy image of courtrooms, wigs, hammers, police officers, and warrants.
But if you’re writing legal fiction, crime thrillers, or any other kind of fiction that deals with legal issues, that hazy image isn’t going to cut it. Joining the long list of often-abused subjects in fiction (which likewise plays host to injuries, guns, ships, horses, physics, etc.), law and the legal process are easy to misrepresent in fiction. After all, the law is complicated, it’s dry, and it changes from country to country and even from state to state.The law is a complicated subject, so writing about it well takes research.Click To Tweet
To supplement your mandatory bingeing of The Wire, here’s a short author’s guide to tackling the law. I’ve tried to keep the points fairly general, but my research has focused on the USA, so if you’re writing about elsewhere, take this information with a healthy dose of salt. It should also be noted that I’m not a lawyer, and the information below contains points that authors might want to consider when writing about the law, not legal advice that anyone should apply to their life.
Detention, arrest, and conviction
The police remain a controversial group in many American cities, and one of the first things many careful citizens make sure they know is the difference between detention, arrest, and conviction. As a writer, it’s important you know the difference too.
Police can temporarily detain anyone they reasonably suspect of either committing a crime or having knowledge of a crime/complaint. For example, if a stalker was reported in a suburb and you’re in that area and match the stalker’s described appearance, an officer could reasonably and temporarily detain you in order to gain more information. This is not an arrest, and you could (and should) keep asking whether, a) you’re being arrested and b) whether the police officer is making requests or orders.
If you’re detained, you can expect to spend around fifteen to twenty minutes talking to the officer (presuming all goes well). In twenty-six US states, the officer cannot force you to show your ID, while in twenty-four they can. They can legally issue a frisk or a consensual search. They cannot legally squeeze any more information out of you or make any other demands without arresting you. Obviously, being detained can be a pretty frightening and stressful situation, so it’s prime meat for your tense crime thriller!
It should also be noted that the letter of the law isn’t always the reality of real-life experience, and the boundaries described above can be crossed either purposefully or in error.The law describes how things should be done, but that doesn’t always mean it’s how they play out in realistic situations. Click To Tweet
In the USA, a police officer cannot issue an arrest without either probable cause or a warrant signed by a judge. ‘Probable cause’ means that an individual’s guilt is pretty self-explanatory – they’ve been caught red-handed or else the circumstances heavily suggest they’re involved in a crime.
If you’re arrested, it simply means the police have good reason to suspect you have committed a crime – it doesn’t mean you did commit the crime. After the arrest, the police must follow a set of procedures, at which time you’ll be free to exercise your Miranda Rights. These are to be read to you by an officer and are as follows:
- 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.
If you’re arrested, the police can legally perform a full search of you, your immediate surroundings, and your car. They may also search your home and will perform an inventory. You’ll then be booked, which means your biometrics and personal information will be recorded. 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 specific charges (if any) will be filed. Usually, 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.
If your fiction features an American citizen getting arrested in the USA, neglecting any of these stages without good reason could deal a serious blow to your story’s claim to realism (or give you a way for a dead-to-rights villain to weasel free).
Conviction is the end of the line for many suspected of crimes. If a court formally decides you’re guilty of a crime, you’re convicted. This is it: you’re a criminal now, and you’ll have to serve your time (or accept whatever punishment is being meted out).
It’s important to understand that this is what makes you guilty of a ‘crime’ and thus justifies any attendant punishment. You’re ‘guilty’ when it’s officially declared that you committed a crime, which is why a fictional character breaking out of prison to prove their innocence would probably be convicted and jailed for that escape, even if they were subsequently cleared of the original crime. In its most outrageous form, this means you’re still guilty of a crime even if you didn’t commit an illegal act; the formality of the legal process is what imbues, and can lift, this status, and those wheels can turn slowly and even in the wrong direction.Being detained isn’t being arrested, being arrested isn’t being charged, and being charged isn’t being convicted. These steps matter if you’re writing legal fiction.Click To Tweet
However, before conviction and before punishment, there’s the case of the trial itself. Let’s delve deeper.
The burden and balance of proof
During a trial, the question of what kind of proof amounts to guilt is paramount. Two key concepts are the burden and balance of proof. The burden of proof acknowledges the prosecutor’s/accuser’s responsibility to prove guilt rather than have the defendant responsible for proving their innocence – it’s an extension of the old adage ‘innocent until proven guilty.’
The balance of proof is more specific; it refers to the supposed rule that for a judge and jury (if present) to declare a criminal (rather than civil) defendant guilty, the balance of proof must lean almost entirely against the defendant. There can be no space for doubt – the jury and judge have to feel absolutely sure that the defendant is guilty. This is how you get so many trials that go on for years – absolute proof can be pretty hard to come by, especially if you’re up against a good defense lawyer.
The balance of proof is an especially good thing to focus on in legal fiction, as it’s inherently tense and dramatic. Of course, this drama can be lessened by the precedence of appeals (another reason it can take a very long time to ascertain someone’s guilt and/or sentence) but, nevertheless, the need for total clarity when presenting a case means every shred of evidence and every witness becomes vital.The balance of proof is an inherently dramatic concept to utilize in fiction.Click To Tweet
The defense rests
That’s all for part 1, but part 2 of this article is available right here. Join me as I dive into the truth behind compelling character-types like jurors, lawyers, and murderers, as well as the levels of court and the nature of criminal sentencing.
Until then, let me know your favorite law writers and any resources you’ve found to help you write in this genre, or check out What Authors Need To Know About True Crime and How To Write A Crime Novel Worth Reading for more great advice on this topic.
4 thoughts on “What Authors Need To Know When Writing About Law – Part 1”
Informative, comprehensive and useful article, Fred.
Your phrase “caught red-handed” got me wondering the origin. This phrase has a big history, but the consensus seems to be that it is someone caught with blood on their hand proving murder or assault.
I’m glad you liked the article! And wow, etymology is always fascinating–I guess “red-handed” makes sense in that context, but it’s interesting to see the term so liberally applied now.
I am a bit skeptical and ambivalent about the issue of writers tackling legal fiction while possessing only a rudimentary understanding of the law. Let me explain.
I have been a practicing criminal defense lawyer, focusing primarily in federal criminal law since 1991. I have represented clients in a variety of very interesting and sometimes violent cases. The two legal fiction authors that have primarily grabbed my attention over the years were John Grisham and Scott Turow. Not just because their books were made into hit movies. It’s because those stories struck a heart-string as to the essence of what it means to be a lawyer.
I am not suggesting it is impossible to write good legal fiction without having been a criminal trial attorney. But it is hard to capture the realism of the experience unless you have been immersed in the process. It is “otherworldly”.
P.S. For years people ask me what my favorite legal television drama is to watch. I say without hesitation, “Law and Order”. They immediately respond, “So it’s realistic?” I laugh out loud, and tell them quite to the contrary. Law and Order is a neatly bundled, entertaining hour long legal drama. Half an hour of cops investigating; half an hour of legal battle.
I would venture to say that a great deal of the law enforcement and legal tactics are unconstitutional. Like Sam Waterson “testifying in court” (he is giving his opinion) during his cross-examinations of a witness. That would never be allowed in a trial. But viewers want things clean, simple, and dramatic. Real trials are often boring, with rarely a moment of the intense drama found on television or “the big screen”. Just food for thought to you aspiring legal writers.
Thanks for sharing your real-world experience as a lawyer; you make some interesting and convincing points. I think you’re right that it’s often better to veer on the side of entertaining over realistic.