Tuesday, November 30, 2010

Objection! Objection! True Crime Tuesday

HANK: It's never a dull moment to watch TV with my husband. (I don't have a photo of us watching TV, so I just stuck in this one. You won't notice, right?)

Lawyer shows, cop shows, thrillers, courtroom dramas. Because both of us are sort of--participatory--when it comes to plot and action and dialogue. We want it to be correct. And so often, it isn't.

So, the other night for instance, we were watching The Good Wife. A terrific show, well-written, highly entertaining, and side note, Juliana Margulies, who wasn't my favorite on ER, IS now. And she has the best eyebrows on the planet. Worth watching, just for those. But I, as always, digress.

Anyway, we're watching TGW, and there's a scene where a district attorney is in front of a grand jury, presenting evidence in a case. And then, as the scene progresses, the DA begins to say things about the guilt of the defendant. The evidence is overwhelming that the person committed the crime, the guy says. The forensic evidence clearly shows that he was present at the scene. (This is all paraphrased, since we didn't write it down, but like that.)
So Jonathan is in his easy chair, shaking his head. Are you kidding me? he says. Pathetic.

I hit pause. What? I say.

That would never happen! he says. The prosecutor is only allowed to present evidence through witnesses to the grand jury. He's not allowed to make arguments. It's not like the closing argument of a trial.
So that scene is..? I say.

Wrong, he says.

It's especially entertaining to watch Jonathan when there's a "lawyer" character doing examination of a witness in a courtroom setting. "Objection!," he'll call out. He can't help it.
Why? I say? Leading, he'll say. Assumes facts not in evidence. Calls for a conclusion. Hearsay!

(He can't help it.)

In some episode of some show, the jury was deliberating and some new evidence came to light, and the judge reopened the trial. "Never happen!" Jonathan yelled. "They'd never do that."

So, as a mystery writer and as a reporter, you can see how it's lovely to have in-house counsel. In DRIVE TIME, someone is called in by the police for questioning. Hmm, I thought. What should he say? Does he have to go? What would his lawyer tell him to do? And why? And I'm confident, after my consultation with Jonathan, that I got it right.

In writing fictional crime, there is a real element of true crime, right? Because being accurate is a good thing. And because there's always someone in the legal world or law enforcement who;s gong to email you and say--are you kidding? And then proceed to tell you why the oh-so-perfect scenario you set up would not fly in real life.

And looking stuff up doesn't always work.

So, on this True Crime Tuesday, Jungle Red helps you get it right. With Jonathan, our very own in house counsel, here to answer your questions. (Click on his name for his info. VE-ry interesting. And surprising, I bet!)
JRW's first--anyone?

ROBERTA: Hank you paint such a hysterical story!! And OH MY GOSH, the timing on this is so great! I started to talk to Jonathan at the Crimebake but time was short and we were at the cocktail hour...Jonathan, you're such a good sport!

JONATHAN: Thanks. It's all for the cause. So--ask away!

ROBERTA: I realized that after eight books, I've never had a character hire a lawyer. But Hayley Snow needs one now. The cops have brought her in to the station in Key West for the THIRD time and she finally says she's not talking, she wants to call her father. Her father finds her a lawyer who comes right down to the KWPD. Here the lawyer tells the detective he wants a room without a camera to talk to his client. (I'm sure this must be wrong, but I was hoping you would say that since the cops are skating on thin ice with their evidence, they might agree to it.)

JONATHAN: If she's not under arrest, she's free to go. So if I were her lawyer, I'd say, we're leaving. If they arrest her, they have to advise her of her rights, and her lawyer would advise her not to talk, at all, not a word, until he's had time to talk to her as much as he needs.

She's absolutely entitled to privacy! If they record in any way the communications between her and her lawyer, they're violating attorney-client privilege.

ROBERTA: Then I need to know what kinds of questions he'd ask her? What really happened the morning of the killing? what was her relationship to the dead woman? Does she have an alibi? Anything will help thank you Jonathan!

JONATHAN: The first thing I'd say would be--tell me everything there is to know about what happened. Including whether if she did what she's charged with or suspected of. If she did it, or if she didn't do it, why does she think people suspect her? If she didn't do it, does she have an alibi?

HALLIE: I'm comin' over to watch TV!

My question: What if the defense lawyer knows that his client is guilty (of murder, just for example)? Would a good lawyer ever try to implicate someone else?

JONATHAN: Yes. Of course, the lawyer would not create evidence or testimony that he knows to be false. But if the evidence against his client could reasonably point to someone else, a good lawyer would bring out that evidence, try to elicit whatever evidence exists that might point to another person with a motive, a person other than his client.

RHYS: Since I set my stories in the past and I don't think I've ever had a courtroom scene, I've escaped most of the pitfalls that would make Jonathan leap up and yell at the screen. What's more I set one series in 1900s New York City in which the police and politics were so corrupt that I could get away with almost anything. But I do have a question: if someone was killed while working on a construction project because sub standard concrete was being used, would their attorney sue for wrongful death, negligence or what?

JONATHAN: It's called a wrongful death action, usually brought by the estate of the victim, and would be based on a theory of product liability. A manufacturer of a substandard product could be liable for injury or death caused by the product. Product liability is based on negligence, design, manufacture or production of the product that caused the injury.

HANK: Would the manufacturer have to know the stuff was bad?

JONATHAN: It depends. If the design was substandard at the time the product was created, that's usually sufficient. The manufacturer is charged with manufacturing a product which conforms to the state of the art.

JAN: I watch the Good Wife, too (LOVE JULIANA), with my husband who isn't a renowned defense attorney, but even with his rusty and now very distant experience as a public defender, shouts out all quite a bit of "That would never fly" in a court-room. So I can just imagine Jonathan's reaction.

But what I want know very specific to Massachusetts and the true crime book I'm working on. If, in jury selection, the prosecutor is allowed 18 peremptory challenges - to get rid of potentially unsympathetic jurors. And there are multiple defendants being tried together -- does each defendant get 18 peremptory challenges or do they share and divide up 18 challenges?

JONATHAN: In Massachusetts, multiple defendants share the challenges, and have to agree on the exercise of each challenge. However, the defendants could ask the judge for more individual challenges, and permit them to exercise them individually. But that would be within the discretion of the judge.

Pretty interesting, huh? So--bring it on! Jonathan's here today to answer more...only fictional questions, though, okay?
Tomorrow--Mary Jane Clark! And then--info about book publicity--from an amazing expert. Plus: prizes.


  1. I know I'm going to think of a hundred questions...tomorrow, and these may be more cop than lawyer, but -
    if a person is brought in for questioning in a murder case is he automatically assigned a public defender (assuming he hasn't called one)? How long might t6hat take..minutes? hours? Is it different if he's 17, 18, 21? Different by state? Does he "get one phone call", can he refuse to answer? If he does, can they hold him?
    Thanks! That's a great pic..of course the last time i saw you you were dressed as Dracula.

  2. Hank, you have perfect timing as usual! (In addition to the many other things about you that are perfect). So here's my question for our esteemed attorney:

    If during a murder trial, a cop and/or prosecutor was found to have withheld exculpatory evidence from the defense (in this case, a witness at the scene who offered contradictory testimony but was blown off by police), what happens to the defendant? Is it just a mis-trial? Or are charges dismissed without prejudice?

    Thanks for coming aboard Jonathan!

  3. OH, great questions! They are in the works--back to you soon..

  4. This was awesome! Fun to read and super informative. Thanks Jonathan and Hank.

  5. For the amazing Brad--and hey, when's the new book out??

    Jonathan says:

    The intentional withholding of exculpatory evidence by the prosecution is a violation of the defendant’s constitutional rights and should result, at a minimum, with a mistrial if it comes to light during the trial or with a new trial if it comes to light after a conviction.

    If the violation is particularly egregious, it can result in a dismissal of the charge with prejudice (which means the defendant cannot be retried). Not likely, however, in a murder case.

  6. Two friends of mine were a hoot to watch crime dramas with while they were in law school. They would yell "Objection!" at the screen all the time.

    Do you think the writers of these shows write stuff they know are wrong, but keep it for the drama, figuring most people would not know the difference or are they just clueless?

  7. Wow! Such speedy legal advice! I wish I could afford to keep Jonathan on retainer. ; )

    Thanks for asking about the new book. EYES OF THE INNOCENT hits Feb. 1. I just hope I can con those awesome JungleRed chicks into giving me a guest slot...

  8. Hey, Im thinkin' we could have Brad Parks WEEK...Just a thought...

  9. Yeah, Melissa, good question---You'd think they'd have some desire to be accurate, right? Just to avoid blogs like this? :-)

  10. From Jonathan for Rosemary!

    Much depends on what “brought in for questioning” means.

    If the person is arrested, then he is entitled to be advised of his Miranda rights, which includes the right to have a lawyer present during questioning and usually the right to make a phone call to contact a lawyer or anyone else.

    An arrest requires that there be a determination by a judicial officer who issues an arrest warrant that there is probable cause to believe the suspect committed the crime, or probable cause for the police officers to believe that the suspect committed the crime.

    In Massachusetts, CPCS (Committee for Public Counsel Services) will assign a lawyer to represent a person charged with murder after he has been arrested and before he has been charged.

    This depends, however, on the police or the district attorney notifying CPCS or advising the person arrested of the availability of a lawyer, which often does not happen.

    Otherwise, a person arrested will only be assigned a public defender at his arraignment, which generally does not take place for hours or the next day depending on the time of arrest.

    In the event that the person is a juvenile, the scenario may be different. Depending upon the juvenile’s age and degree of maturity, he may be entitled to have a parent or adult present at all times regardless of whether he has requested a lawyer.

    If a suspect asks for a lawyer after his arrest, the police may NOT question him after his request for counsel. The definition of a juvenile varies from state to state. In Massachusetts, a juvenile is a person under 17; in many other states it is a person under 18.

    If “brought in for questioning” means only that the suspect has voluntarily agreed to go with the police to the station, the he does not have to be advised of his Miranda rights because he is not in “custody” and is “free to leave at any time.”

    However, if in the course of this questioning the police obtain probable cause to arrest the suspect, then everything changes and the above rights come into effect.

    In either case – after an arrest or when brought in voluntarily – the suspect can refuse to answer questions. This refusal does not justify arresting him unless there is probable cause and the exercise of his right of silence cannot later be used against him in court.

    Long answer to a short question.

  11. Hi, everyone!

    Like Rosemary, I think mine might be more of a cop question...

    I'm a HUGE fan of true crime show, The First 48. Seems to me if suspects and witnesses would just ask for a lawyer right off, there wouldn't be a show at all. The detectives seem to wheedle and manipulate until they get a confession. If I have a character/suspect who is innocent, would the police treat her with more suspicion throughout the investigation if she lawyers-up right away, without answering their questions?


  12. Many thanks, Jonathan and Hank!
    Good question Laura - I think both our characters are in the same fix!

  13. Hank, I'm with Brad, your timing is perfect. My character has given her child to another person--not a relative--because the child is in danger. What kind of documentation could the mother give to the person who is taking the child that would show she handed over the child willingly? Would a hand-written letter be enough? There isn't enough time to go to court, although there could be enough to see a lawyer.


  14. Jonathan, thanks so very much! And thanks to Hank for sharing him:)

    As for booking Brad Parks on JRW, don't you think we need to know his astrological sign first??

  15. Wow! This is such interesting information!

    My books are set in German-occupied France, so I dont have any questions but just want to thank Hank for sharing her esteemed hubby and thank Jonathon sharing for his time.

  16. Wow! This is such interesting information!

    My books are set in German-occupied France, so I dont have any questions but just want to thank Hank for sharing her esteemed hubby and thank Jonathon sharing for his time.

  17. Hank -- Mwah! Now singing "Cupid" (the Sam Cooke version) in your honor.

  18. From Jonathan for Darlene!

    I guess it depends on the circumstances of the prospective separation.

    Is it long term or short term? Will the mother be available in the event there is a question raised as to custody?

    Why is the mother concerned about needing some form of documentation? If the concern is only to provide protection for the non-relative custodian from charges of kidnapping or the like, then it should be enough to provide her with a notarized statement that she is turning over temporary physical custody to the person.

    It also might be helpful to have some witness or witnesses who know the mother present when she turns over custody and can corroborate the voluntariness of the transfer.

    If it is a long term deal, during which time the custodian might have to make important decisions with legal consequences for the child it might be advisable or necessary to have a more formal agreement prepared by a lawyer.

  19. From Jonathan for Laura!

    Police officers usually take the position that if you have nothing to hide then there is no reason to have a lawyer. They certainly will tell a suspect that to discourage or her from getting a lawyer.

    If the suspect insists on a lawyer, it might even bolster the police view that she is guilty.

    However, a suspect should always consult with a lawyer before deciding whether or not to make a statement to the police. Even if she is completely innocent, it would be inadvisable to make a statement to the police if the statement would reveal information which makes her look guilty.

    On the other hand, if she has indisputable evidence of innocence, it may be a good idea to provide it.

  20. Thank you Hank and please pass on my thank you to Jonathan as well. His answer helps a lot.

  21. Oh, will do, Darlene! He's having a great time--he says these questions are far more interesting than his real work today!

  22. What a great opportunity! Thank you, Hank and Jonathan.

    This may be a "cop question," too, but I might as well ask anyway. :)

    A guy suspected of murder heads out with the cops to the station. Our good-but-naive guy is innocent and believes he can get this situation straightened out by explaining his side of the story.

    A bystander who believes Good Guy is facing deep trouble calls out to him: "Tell them nothing. Get a lawyer first."

    Can the cops threaten the bystander with arrest for interfering with officers? Would they have grounds for arrest, especially since the bystander only spoke up but didn't try anything physical? (FWIW, this is rural KY not MA.)

    Actually, I suspect the cops would try to bully the bystander to a certain extent. After all, the bullying would makes for good conflict, but it might ruin my chances for good future police contacts, especially with the Kentucky State Police. ;) For good or ill, I do think of "big picture" things like that.

    What do y'all think? And thanks!

  23. For Rhonda from Jonathan:

    There is clearly nothing illegal about the bystander telling the suspect not to cooperate and get a lawyer.
    He is exercising his right of free speech and is not interfering with an arrest – because the suspect is not even under arrest.

    However, it is equally clear that the police would threaten the bystander with arrest in order to discourage him from influencing the suspect.

    If the bystander persisted they might even arrest him for something like disorderly conduct.

  24. Thank you, Hank and Jonathan. Great info!

  25. Jonathan. You make it sound as if cops and defense attorneys don't get along very well. And cops don't always have the best interest of your clients at heart? Hmm, and I thought we were friends... :)

    Seriously, I'm glad to see that you're doing well.

  26. It's still today, I hope. Here's the scenario: a man is wrongly convicted of a murder in Massachusetts. He serves 15 years before his attorney uncovers that the crime scene was contaminated, and he is released. First question-would the original charges be dropped or could they reopen the case?

    Next, he moves to NC after being released. Another murder occurs with the same unique M.O., and he's arrested again, then released for lack of evidence. The police find evidence, planted, and before he's arrested again, he leaves the state to go back to Mass to find the real murderer. I know, complicated. Eventually, he does. Second question-who would have jurisdiction over the real murderer, Mass or NC? And where would he be tried?

  27. Oh, and Jonathan, this is great. Thanks so much for doing this.

  28. Wow! This is great. I don't have a quesiton but I sure learned a lot just lurking.

    Thanks, Jonathan

  29. From Jonathan for Polly:

    The fact that the crime scene is contaminated might raise questions as to the reliability of some of the evidence, but it doesn't establish the defendant's innocence. Therefore, the result would likely be granting the defendant a new trial, at which the contaminated evidence is excluded.

    (Hank says: I have to say. Isn't he brilliant?)

    More to come..

  30. Second half of Polly's question:


    I assume that the defendant was acquitted after he was retried for the Massachusetts murder.

    I assume also that the second murder took place in NC. I also assume that the real murderer fled to MA and that's why the defendant goes there to find him.

    It's clear that the state in which the crime was committed has juridsdiction over the prosecution.

    So if our defendant finds evidence of the guilt of the real murderer, (who is living in Masssachusetts), North Carolina would have to extradite him for trial--in other words, bring him to North Carolina for trial. Because the murder took place in NC.

    If the MA and the NC murders were part of the same plan--the some course of criminal conduct--of the real murderer, then both states might have jurisdiction to prosecute him.

    In other words, if someone in MA plans to commit a crime, and does cetain acts in order to commit that crime in NC, MA might have jurisdiction as well as NC.

    Clearly if there were a conspiracy to do it, and more than one person was involved, then both states would have jurisdiction.

  31. And Hey Lee--We missed you at Thanksgiving! And it's all about justice, right?

    Love to you both...

  32. And Hey Lee--We missed you at Thanksgiving! And it's all about justice, right?

    Love to you both...

  33. Jonathan, thanks for the multiple answers. You're great. You should write a book. And thanks, Hank, for sharing him if only for a day.

  34. Aw, Polly, I'll tell him. Thanks! And yeah, I think he should write a book, too. But do we really want to subject him to that???

  35. Hank, husbands and wives shouldn't be in the same business. I'm speaking from experience. So, you write, Jonathan keeps doing what he does so well. Life will be much smoother.

  36. Hank, it's great to have accurate and expert legal advice. You're a lucky woman. I go out of my way to avoid legal matters because I want to settle everything before it gets that far. However, in stories, I can't do that.

    I wonder how soon police interviewing becomes an arrest and interrogation. For instance, police are suspicious because a character found the body and has access to money because her friend was murdered. Do the police have to have concrete, stand up in court evidence before they can demand that the character come into a police station or face arrest?

  37. Hey Pauline--

    Jonathan's in court right now--surprise!--and he'll be out later this aft to answer your question! xoox

  38. Oh, what excellent Q&A! And I'm so glad to know I'm not the only lawyer who objects out loud during TV courtroom scenes. :)

  39. Hey Leslie! Yes, watching with you two would be quite an event..