Image: Matthew Loffhagen
Welcome, jurors, to the second part of our guide to writing about the law. To briefly recap: the law is big, complicated, and dry, and it’s often mistreated and misrepresented in books, films, and on TV. Well, no more, I say. It’s time to turbocharge your murder mysteries, crime thrillers, and true crime with some basic legal knowledge.
In part 1 (which you can read here), we talked about the police; the difference between detention, arrest, and conviction; and the burden and balance of proof. This time around, we’ll be looking at juries; the dizzying number of different courts in the US; and the classifications of crimes, lawyers, and sentences.
As I’ve said before, 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. That said, and without further ado, let’s get this court in session.
When there’s a jury
A common misconception about courtroom trials is that there’s always a jury present, but this isn’t the case. To be fair, juries will probably be around for the kinds of cases that make good fiction – think trials for big, exciting crime like murder, fraud, etc.
In the USA, federal law entitles a defendant to a jury if the crime they’re being accused of carries a sentence of six or more months in prison. Individual states are free to provide juries for cases with less severe punishments, but they can’t deny a jury to those facing serious punishments. For civil disputes rather than crimes, the plaintiff (that is, the party who initiated legal action in the first place) can request a jury trial in almost every state. The exception is small claims courts, which never have juries.
Of course, none of this is absolute – American law is incredibly complicated due to its Constitutional foundations, the USA’s identity as an ex-colony (meaning there are a few hangers-on from eighteenth-century English law), and the presence of fifty separate states. The important thing in your fiction is not to assume a jury and, if you’re writing about a particular crime or a particular state/place/time period, be sure to research whether a jury would appear.
The levels of court
The US court system is rather confusing due to the federal and state split. There are far too many types of court in the US to go into in detail here, but to give you an idea of the kind of research you’ll be wanting to engage in, here’s a not-quite-comprehensive list:
- The Supreme Court
- The Court of Appeals and Bankruptcy Appellate Panels
- District Courts
- Bankruptcy Courts
- Article I Courts, including:
- US Court of Appeals for Veterans Claims
- US Court of Appeals for Veterans Claims
- US Tax Court
- Trial courts
- Courthouses (often at a county level)
- State supreme court
- Courts of limited jurisdiction (including alderman’s courts, police courts, mayor’s courts, juvenile courts, etc.)
- City/municipal courts
- Courts of general jurisdiction
As you can see, there’s a lot going on in America’s court system, and that’s not even accounting for individual states. European courts tend to be simpler, and will have separate courts for especially serious crimes (unlike the US, which classifies crimes on a state or federal level based on whether or not the crime defies the Constitution or not).The Constitution is a huge consideration in US legal/crime fiction, and a good place to start your research.Click To Tweet
In terms of your American crime fiction, this is where research can get complicated. If, for example, your criminal is a car thief in Madison, Wisconsin, you’d have to check whether Madison, which is a county seat, has a state supreme court and, if not, whether it plays host to any city or municipal courts. Perhaps it has a whole host of courts of limited jurisdiction for your car thief to bounce between until he’s referred to a court of general jurisdiction. There’s a lot to work out!
The levels of crime
After all the confusing distinctions surrounding types of courts in the USA, the three levels of crime in US law are thankfully rather simple. Basically, you’ve got your infractions, your misdemeanors, and your felonies. These scale in seriousness (and are given a letter class to indicate severity – for example, a class A misdemeanor is more serious than a class B) but, in your fiction, you’re probably going to be concerned mainly with felonies and misdemeanors – no one wants to read crime fiction about traffic violations or jaywalking.Is your character’s crime an infraction, a misdemeanor, or a felony? For what comes after, you’ll need to know.Click To Tweet
That said, it’s important to be aware of the levels of crime occurring in your fiction. They’ll determine where your criminals are tried, how harshly they’re treated, the types of lawyer they hire, the sentences they earn, and public opinion/social response (after all, American society is much more accepting of a murderer than it is a pedophile), all of which are key components in creating drama and advancing plotlines.
As with courts, there are dozens of different types of lawyer, and the distinctions blur between countries. For example, in the US, ‘attorney’ is used to describe any kind of lawyer, whereas elsewhere it refers only to a lawyer who directly represents a client in court; there are ‘paralegals,’ who are not lawyers but who work in law; and, in the UK, the terms ‘barrister’ and ‘solicitor’ are used to distinguish between different types of lawyer.Thinking of involving a lawyer in your story? That’s great, but what type?Click To Tweet
It’s beyond the scope of this article to summarize each of the different kinds of lawyers, but here’s a list to help direct your research.
- Public interest lawyer
- Government lawyer
- Private sector/corporate lawyer
- Trial lawyer
- Immigration lawyer
- Estate planning lawyer
- Personal injury lawyer
- Toxic tort lawyer
- Civil rights lawyer
- Criminal law lawyer
- Entertainment lawyer
- Real estate lawyer
- Digital media and internet lawyer
- Legal malpractice lawyer
So, ‘lawyer’ has stopped looking like a real word now, huh? Let’s move on.
Punishments and sentences
Once you’ve picked the crime, dealt with the police, found a lawyer, gone through court, filed an appeal, and landed on a conviction, it’s time to pick the punishment to suit the crime. Obviously, the punishment handed out will vary between crimes, states, and individual cases (even for the same crime/state), but there are some handy minimum sentences carried by certain crimes that can give you an idea of how the US treats its criminals (and thus an idea of how you should treat your own criminals).
For example, in Connecticut, Class A felonies (murder, sexual assault of a minor, kidnapping, home invasion, etc.) all carry hefty minimum sentences ranging from one year (kidnapping) to ten years (home invasion) to fifty years (sexual assault of a minor – second offense). Class A misdemeanors, such as assault with a deadly weapon, carry a minimum sentence of one year, whereas the unclassified crime of carrying a handgun without a permit carries a one-year minimum sentence and maximum of five years.If you’re writing fictional crimes, minimum and maximum sentences can be a useful guide to the potential consequences.Click To Tweet
This data should be available on a state-by-state basis online, on state government websites, or in local archives, and you should make sure you do your research so as to avoid having your fictional judges throwing around ridiculous sentences. This kind of information is also useful for color; it can help a scene if your criminals know how long of a sentence they’re risking.
Law is an incredibly expansive and complicated field (there’s a reason lawyers earn so much money!) and, while I couldn’t hope to be anything near comprehensive in this two-part series, I do hope to have laid some basic foundations that’ll help you direct your research and consider the intricacies of the law with regards to how it performs within fiction. So dust off that wig and grab your gavel – it’s time to get stuck in.
Who are your favorite law writers? What resources have you found helpful when writing legal fiction? Let me know in the comments, and 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.