HANK PHILLIPPI RYAN: I'm married to a lawyer. For a mystery writer, this is a very very good thing. Having "in-house counsel" is about as good as it gets--especially for questions like: If I stall my guy in the police department interrogation, how long before the defense attorney goes crazy? Can a police officer lie to a suspect? What do judges really say at sidebar? What's the difference between voluntary and involuntary manslaughter? Can I name a real place in a fictional story?
And I don't even have to pay $350 an hour to get the answers! (I do the cooking, and media consulting, you know, so Jonathan gets benefits, too.)
Anyway! If you don't have in-house counsel, now at least you have in-Jungle counsel. Today the Reds welcome our dear pal Leslie Budewitz, who has generously and brilliantly handled questions for her sisters in crime for years now--pro bono! And we are very pro Leslie.
(And whoo hoo--check the end of the blog for some fantastic news!)
So, drumroll, on this True Crime Tuesday, we'v got a legal expert on retainer! And Leslie has graciously promised to come answer all our questions... and, bonus, we are giving away a copy of her wonderfully valuable book to one lucky commenter!
FIVE MISTAKES MYSTERY AUTHORS MAKE ABOUT THE LAW
LESLIE: Thrilled to be here on Jungle Red today–even though my color is Kangarooby. (I’m wiggling my toes–see?) 
So many novels, movies, and TV shows touch on the law. Mysteries and crime novels, of course, typically involve an investigation, and often a prosecution. Both law enforcement officers and P.I.s need to know what’s legal and what isn’t. Even amateur sleuth stories often involve the law–the chef/gardener/bookstore owner may get involved because she thinks law enforcement won’t investigate or is focusing on the wrong suspect. Past crimes may surface with present ramifications, some legal, some illegal. Plots and subplots in mainstream and literary novels may involve the law, too.
But legal plots don’t require a crime. In a good storyteller’s hands, civil law can be equally gripping. Think of the possibilities in adoption (A Theory of Relativity, by Jacquelyn Mitchard, or Run, by Ann Patchett), inheritance (Dickens’ Bleak House), even insurance (Double Indemnity, a great book and even greater movie).
And there are plenty of opportunities for mistakes, because the law is complicated and changes constantly. Plus most of us, thank goodness, live happy lives without facing serious legal issues.
Here are a few common mistakes that get under my skin.
**Using the wrong terms, particularly in identifying prosecutors and courts. On Law & Order–and I love the show–the prosecutor is the D.A. Elsewhere, she might be the County Attorney, County Prosecutor, State’s Attorney, even People’s Attorney. Is she in District Court, Circuit Court, Superior Court? It’s easy to check, whether you live where your story is set or not. If you aren’t sure of the terminology, call the court or the prosecutor’s office, or check their website. Read news accounts of recent prosecutions in the newspaper online. No doubt you’ll pick up some good local flavor, too.
**Assuming law enforcement officers need a warrant to make an arrest. Police don’t need a warrant to make an arrest in a public place, or in “exigent circumstances,” such as when an officer witnesses a crime or is pursuing a person suspected of committing a crime. But they still need probable cause.
**Not knowing when a Miranda warning is needed–and when it isn’t. A warning is required only before custodial interrogation. That is, only suspects in custody need to be warned, and even
then, only before questioning. Voluntary statements by persons not in custody or not made in response to questioning are admissible. A suspect who’s been warned can waive his rights and agree to questioning. Of course, mistakes are fodder for writers.**Sentencing a defendant immediately after a criminal conviction. Sentencing is a separate proceeding, usually held after a pre-sentence investigation by a probation officer or other local equivalent (terms vary, remember?). Prosecutors and defense counsel need time to review the report and make recommendations. A few weeks is typical. Sooner is possible–Casey Anthony was sentenced within a week or so after the verdict, but the charges she was convicted of were relatively minor and the investigation may have been expedited because of the circumstances. If you need sentence imposed soon to serve your story, you may have to fudge a little. Just don’t let your fictional judge hear the verdict and impose sentence right away.
**Allowing lawyers–or their clients–to argue with the judge, especially after she’s ruled. Don’t do it–not if you care about your characters or their case. But if you want to piss off your fictional judge, go ahead. Your chances of success are excellent.
Obviously, mistakes happen in real life, which is why lawyers file motions to suppress and appeals. But they also add to the drama and create great opportunities for tension and conflict.
Is it ever okay to make a mistake on purpose, to fool the reader? I don’t think so. Exaggerate a bit for drama, sure, but to deliberately build a story on a faulty premise breaks faith with the reader. At Bouchercon, the international mystery convention, in St. Louis last month, I moderated a panel on forensics in fiction. Former prosecutor Marcia Clark made a point I heartily endorse: The more we tell the truth, the more dramatic it is. We don’t need to lie about the facts to tell a good story–we need to find the story they tell.
I’m happy to answer questions in the comments.
Thanks so much to the Reds for letting me come over and play!
HANK: Yay, Leslie! Thanks so much! So, Reds, fire away...what legal issue can Leslie untangle? And remember, I'll send a copy of her new book to one lucky commenter!
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Leslie Budewitz is the author of Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books, October 2011). She is a practicing lawyer and a mystery writer living in northwest Montana. Read an excerpt and more articles for writers, or send her a question, at http://www.lawandfiction.com/
Leslie’s also got some fun news to share: She’s just accepted a three-book offer from Berkley Prime Crime for The Food Lovers’ Village Mysteries, set in NW Montana, and debuting in 2013!
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Leslie Budewitz is the author of Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books, October 2011). She is a practicing lawyer and a mystery writer living in northwest Montana. Read an excerpt and more articles for writers, or send her a question, at http://www.lawandfiction.com/
Leslie’s also got some fun news to share: She’s just accepted a three-book offer from Berkley Prime Crime for The Food Lovers’ Village Mysteries, set in NW Montana, and debuting in 2013!
HANK: WOW!! Fantastic!! SO happy to celebrate with you!
