Monday, March 11, 2013

MYSTERIOUS MONDAY: Common mistakes mystery novelists make about the law

 by Leslie Budewitz

A legal thread runs through the fictional world. Novels, short stories, screenplays, and TV scripts often involve legal issues that may be central to the plot or provide backstory. But the law can be confusing. It’s constantly changing and varies from state to state. Plus most of us, thank goodness, live happy lives without facing serious legal issues.

Mysteries and crime novels typically involve an investigation, and often a prosecution. Law enforcement officers and P.I.s need to know what’s legal and what isn’t. Writers with amateur sleuths need to know a few things about the law, too–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 unintentional mistakes take your readers right out of the story. Here are a few common mistakes I see in books, movies, and TV shows.

Leslie Budewitz
– 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 the People’s Attorney. A long handle like the Commonwealth’s Attorney might be shortened to “the prosecutor.” Does she try cases in District Court, Circuit Court, Superior Court, or another variation? 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, based on the 4th Amendment. That means reasonable belief, based on facts, that evidence of a particular crime will be found in a particular place, or that a particular person is responsible for a particularized crime. “Mere suspicion” is not enough.

– Confusing direct and circumstantial evidence.
Evidence is anything – witness testimony, physical evidence like a gun or DNA test results, or documents – offered at trial to prove a fact necessary to the elements of the case.

Direct evidence is testimony or physical evidence of a fact. Circumstantial evidence is evidence of one fact that leads to an inference or presumption. In both civil and criminal law, circumstantial evidence may be enough to make the case. If the other side objects to circumstantial evidence, the judge must rule on whether to allow (“admit”) it or not. Is it relevant–that is, does it make facts that matter to the case more or less probable?

– Giving a Miranda warning as soon as a suspect is arrested.
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. Warning a suspect on arrest only guarantees that he’ll shut up–many defendants have been arrested before and they know the drill. Plus they watch the same TV shows as the rest of us.

– Introducing new evidence on appeal.
Appeals are decided strictly on the record below–meaning the evidence and legal rulings at trial, or if the appeal is from a pretrial ruling, the ruling, briefing, and arguments. An appellate court might order the lower court–meaning the trial court–to reopen the case to consider evidence or arguments it previously excluded. But it won’t allow the parties to present any evidence or argue legal issues not presented below: no new testimony, no new witnesses, no new physical evidence.

In a criminal case, new evidence may surface weeks, months, even years after conviction. There are other procedures to get that evidence in front of the court, to decide whether the case needs to be reopened, such as petitions for habeas corpus.

Of course, police officers, lawyers, and judges do make mistakes–in real life and in fiction. Now that you know a few common stumbling blocks, you can decide when to let your characters make a mistake, to increase the stakes and tensions, and make your story even more gripping.


Leslie Budewitz is the author of Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books), winner of the 2011 Agatha Award for Best Nonfiction. Read an excerpt and more articles on   She blogs for writers at   
Death al Dente, first in her cozy series, The Food Lovers’ Village Mysteries, set in northwest Montana, will debut from Berkley Prime Crime in August 2013. 

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  1. Nice Job pointing out common legal errors. I think the worst is on t.v. I saw a trial on a t.v. show the other day that started with the defendant proceeding to a judge trial without being advised of any of his rights, and then the state admitting evidence without calling a witness or doing any type of opening statement. I felt like I was back in the first day of my trial practice seminar in law school when the only thing any of us knew was what we learned from bad t.v. shows.

  2. Holly, ouch! Glad I missed that one. Readers & writers, evidence must be admitted through a witness who can establish its foundation and authenticity, and testify to the relevant details, e.g., where the pipe was found, how the chain of custody was preserved, what tests were run and what they showed, and the like. A lawyer can't introduce evidence herself.