Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure

LAWYERS, JUDGES, COURT STAFF, LAW PROFESSORS, EVEN THE companies that publish court decisions would have much easier jobs if criminal law didn’t create so many issues. So would fiction writers—but we would miss so many opportunities to make our stories more interesting. We’ll look first at probable cause, the foundation for search and arrest. Next, we’ll discuss a few issues related to searches, and we’ll clear up some common misunderstandings about Miranda warnings. We’ll also talk about missing witnesses, confidential informants, public defenders, extradition, and recording.

Probable cause is a 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 particular crime. “Mere suspicion” is not enough.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Keep in mind that these limitations apply only to government action, e.g., actions of law enforcement officers or others acting with government authority, not to private acts.

Consider a case of suspected homicide: A woman is missing. Her husband’s alibi for the time she disappeared can’t be confirmed. He admits having a girlfriend. A neighbor calls police to report recent digging in the backyard. When police arrive, the husband is packed and ready to go. Do police have probable cause to arrest him or to obtain a warrant to search the home?

That his alibi is uncertain and he is involved with another woman does not establish reasonable factual grounds to believe that a crime has been committed, or to link him to it. Nor does his imminent departure. All that is merely suspicious. But the third factor—the backyard digging—is sufficient grounds for a warrant to search the yard. When the yard is dug up and the missing woman’s body or clothing is found, that is evidence of a crime, linked to the husband, and establishes probable cause for his arrest.

If the neighbor had reported that the day the wife disappeared, she saw the husband carry a shovel to the backyard and start digging, visibility was good, and she sees reasonably well, those facts link the digging to a crime, and they link the husband to both. Probable cause to search and to arrest would exist even before the yard was excavated. If the neighbor further saw him struggle with the weight of a large bundle, or her dog dragged home a scarf known to belong to the missing woman, the showing of probable cause would be even stronger.

Another example involves a suspected drug dealer: Police go to Bates’ apartment to question him about a suspected drug deal. When the door opens, they see Bates drop a marijuana pipe into a wastebasket. While standing with him in the doorway, officers see other drug paraphernalia in the living room, in plain view. An officer detects a strong odor of smoke. Officers ask if anyone else is in the apartment; Bates says he doesn’t think so. Officers then hear a voice in the kitchen. An officer walks into the kitchen, finds it filled with smoke and soot, and sees a man he recognizes as a convicted drug dealer with an outstanding arrest warrant. He also sees a tobacco tin filled with what appears to be marijuana on the living room table.

Do officers have probable cause for a warrant to search the apartment for drugs? Yes. They saw a pipe and other paraphernalia. They smelled, then saw, evidence of cooking but no food, with a known drug dealer in the kitchen. These facts establish a reasonable belief that evidence of drug dealing will be found in the apartment.

If the evidence establishes probable cause to look for a person, officers can only search places where a person might be found in a home, such as in closets, but not in dresser drawers.

Do officers have probable cause to arrest Bates on the spot? Yes, for possession of marijuana. If possession of drug paraphernalia is illegal in that state, he can be arrested on that charge as well.

In the actual case, a search warrant was obtained and a meth lab was found in a closet off the kitchen. Officers then had probable cause to arrest Bates for illegal manufacture of drugs.

If the evidence establishes probable cause to look for a person, officers can only search places where a person might be found in a home, such as in closets, but not in dresser drawers. If probable cause extends to cash or drugs, the search area includes any place where those items might be found—in other words, almost anywhere.

Not every search or arrest requires a warrant. (Think of an arrest as the seizure of a person.) Police don’t need a warrant to seize evidence “in plain view,” as in the story of Bates. Another warrantless seizure is the “stop and frisk,” also called a Terry stop after Terry v. Ohio (1968), the Supreme Court case establishing the rule. There, an officer with a lawful reason to stop a suspect can frisk him for guns, knives, or other weapons, in order to protect the officer’s safety. Any evidence found in the course of a reasonable patdown to protect the officer’s safety may be seized and the person arrested.

Other valid, warrantless searches are those made pursuant to arrest, or to prevent the destruction of evidence. While one officer cuffs a suspect, his partner may follow the suspect’s girlfriend into the bathroom to prevent her from flushing the cocaine they were packaging down the toilet or to stop her from feeding papers that establish accounting fraud into the backyard barbecue.

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 officers still need probable cause.

Police don’t need a warrant to make an arrest in a public place.

Remember that the Fourth Amendment comes into play only when there is both a search and a seizure. If an officer unlawfully searches a house but doesn’t take anything, the Fourth Amendment is not involved—although other sanctions may apply. And, if he’s walking down the street and sees a pot plant in an open window, he can grab it without a warrant—there’s a seizure, but no search.

Probable cause matters because it is the legal minimum level of facts that law enforcement must establish before getting a warrant for a search or an arrest. If you want to create both defensible and questionable arrests and warrants in your fiction, keep the elements of probable cause in mind.

How do the police get a search warrant?

The mechanics vary among jurisdictions, but the heart of the process is giving a judge facts that establish probable cause to believe that evidence of a specific crime will be found in the place to be searched. In routine searches, as for drugs, the warrant application may be written by a law enforcement officer, filling in the blanks on a computerized form. In serious felonies or cases with complicated facts, warrant “apps” may be written by a deputy prosecutor, or by a higher-ranking officer working with the prosecutor. Police procedures typically require that supervisors or prosecutors review apps before they go to a judge.

Detectives may receive extra training in drafting warrant requests. The evidence sought must be described “with particularity.” The facts showing the link to the crime must be detailed and the link made clear. Property descriptions must be accurate. When an officer applies for a warrant based on knowledge obtained from someone else, he must articulate detailed reasons why the information is reliable. If he can’t produce the informant to testify, he must identify the informant—unless he can establish that doing so would put the informant in mortal risk—and state why the informant is reliable. Past reliability is generally sufficient.

Applications are then presented to the judge for review and signature. In some jurisdictions, any judge will do. In others, requests go to a designated judge. On TV and in movies, detectives often shop for a friendly judge—usually seen answering the door at home in a bathrobe—and that is possible on weekends, holidays, or nights, but it’s not routine. “Judge-shopping” can be a problem, if a warrant is challenged and the allegations include improper influence or violation of procedures. And, frankly, most judges apply the standards in pretty much the same way. Of course, that doesn’t make for interesting fiction, but there’s lots of room for legitimate variation.

Some warrant requests can wait to be reviewed; others are more pressing, and the detective and prosecutor may physically walk the request through the process of review and signature. Depending on who is involved, their experience, and the facts of the case, the process could be completed in a couple of hours or less—or it can drag out for days, if that’s what your story needs.

Attention to detail is critical because the risks are so high. If a warrant request is denied, evidence may be destroyed or a suspect may flee. If the request is granted but the warrant is later challenged—say for lack of probable cause—the evidence obtained may be thrown out (“suppressed”) along with all other evidence discovered as a result. If there isn’t enough admissible evidence left, the entire case may be dismissed.

How can my character challenge a warrant?

For a search warrant, the person in control of the premises should ask to see the warrant and question any discrepancies. Does the warrant say “4772 Highline Drive” and the police are on the doorstep of 4272 Highline or 4772 Ridgeline? Does it say “the home of Alfred Moore” and this is the home of “Albert Morris”? Similar questions can be asked before an arrest. Warrant errors could be minor or critical, but they offer good grounds for refusing to allow the police to enter and execute the warrant—that is, to search or arrest.

Most challenges to both search and arrest warrants are made after the fact, once charges have been filed. Motions to suppress evidence obtained in a search are common, and typically assert lack of probable cause. Evidence obtained as a direct result of a constitutional violation—“fruit of the poisonous tree”—must be excluded from trial unless the prosecutor establishes that it would inevitably have been obtained through legitimate means. The exclusionary rule makes law professors grin and detectives work late. Think of all the possibilities it offers you, as a writer.

Can a landlord give police permission to search rented property?

Voluntary consent is a long-recognized exception to search warrant requirements. Only a person with a right of privacy in the premises can give valid consent to search. This includes any adult who lives in the rented house or apartment, not just the adult whose name is on the lease. The key is the right of privacy, not the right of control or ownership. So, a landlord can’t consent, because he’s given up the right of privacy to rented premises. If the landlord reserved access to a specific portion of the property, say a locked storage room in the basement, he has the right to consent to a search of that room—and no others. However, if the tenant abandons the premises, he has no further expectation of privacy, and the landlord can consent to a search.

Only a person with a right of privacy in the premises can give valid consent to search.

Can my character’s girlfriend or a visitor consent to a search?

If your character’s girlfriend lives on the premises, she too has access and an expectation of privacy, even if she’s not the legal tenant. So she can consent to a search, unless like Bluebeard’s wife of fairy tale, she’s been told not to enter a certain room. Her right to consent would stop at the door of the forbidden room.

Numerous courts have held that overnight visitors have an expectation of privacy in a premises, and they can challenge searches and seizures that incriminate them. Whether they can consent to a search that might incriminate another will depend on the facts, and whether it reasonably appeared to the police that the person had sufficient control over the premises to consent. In Illinois v. Rodriguez (1990), the U.S. Supreme Court announced the principle of apparent authority, upholding consent to search where the complainant took a key from her purse and unlocked the apartment for police. They did not know she had moved out two weeks earlier, nor that the defendant did not know she still had a key. Clearly, she no longer had sufficient expectation of privacy rights in the premises to consent to a search. But her exercise of apparent authority led police to reasonably, although mistakenly, believe she had that authority. The Constitution only prohibits unreasonable searches and seizures, so the Court upheld the search. Apparent, as opposed to actual, authority may not apply in states with their own constitutional privacy protections. Either way, the concept allows you as the writer to complicate the facts, reward law enforcement officers who use good judgment, and make things difficult for those who don’t.

What happens if one occupant consents to a search but the other refuses?

A husband and wife jointly occupy a house. The husband—the suspect—refuses to let the police search the premises, but his wife consents. What then? The Supreme Court held in Georgia v. Randolph (2006) that if both occupants are present, both must consent. One’s consent can’t override the other’s refusal. If only one is present and consents, that’s sufficient, even if the other occupant later claims he would have refused had he been there. But police can’t call a suspect out to the sidewalk and engage him in conversation while other officers ask his wife for consent to search. If he’s on the premises, he’s got to be given an opportunity to object. Doing otherwise would not be reasonable.

Can a child consent to a search?

Typically, states analyze the validity of a child’s consent to a search of the parent’s home by looking at age, understanding, and “the totality of the circumstances.” (A few states hold that children lack capacity and authority to consent to the search of a parent’s home, usually on state constitutional grounds.) There is more room for a challenge because a child is more readily influenced than an adult.

For example, in your story, set in a state allowing a child to consent to a search, a thirteen-year-old is babysitting her younger sisters. It’s late and she doesn’t know—though your cops do—that Mom is in custody downtown. The girl, visibly sleepy, peeks out the barely-open door at four uniformed officers. A large male officer says they want to come in and search for evidence of illegal drugs. Is her consent voluntary? What if she says “my mother told me not to let anyone in,” but the officer says they need to look for something her mother left there? Make her sixteen, set the scene at noon, or put the officers in plain clothes. See how different facts change the situation? Make her seventeen, or limit the request to search her bedroom or backpack, and the situation changes again.

Turn the tables, apply the principles already discussed, and you’ll see that a parent has the right to consent to a search of a child’s room or personal property in the parent’s home. That the child is over eighteen does not change the parent’s right to give consent. The result would probably be different, though, in the case of an adult child who returns home and puts a lock on his door, or who lives in an apartment in the basement.

Can school authorities search a student’s purse or locker?

Yes. In New Jersey v. T.L.0. (1985), the Supreme Court upheld a warrantless search of a student’s purse. The Court held that the Fourth Amendment does apply to students, who have a legitimate expectation of privacy, but also acknowledged the interests of schools in maintaining a safe learning place. To balance the interests involved, it established a “reasonable suspicion” standard, less than probable cause. That is, do school administrators have reliable knowledge that shows a “fair probability” or “moderate chance” of discovering evidence of a crime or violation of school rules? Search measures must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

A teacher reported that T.L.O. was smoking in the bathroom, in violation of school rules; T.L.O. vehemently denied it. The Court found that the vice principal had reasonable grounds to search her purse for cigarettes. He immediately spotted rolling papers, giving him reasonable suspicion to search more thoroughly. He then found marijuana, a pipe, several empty plastic bags, a substantial number of one-dollar bills, an index card listing students who owed T. L. O. money, and two letters implicating her in marijuana dealing. He called her mother and police. She confessed to dealing. Delinquency charges were brought. She challenged the legality of the search and confession and the admissibility of the evidence as “fruit of the poisonous tree,” but lost.

The same principles apply to locker searches. Unlike purses and backpacks, though, lockers are school property, and some argue that students therefore have a reduced expectation of privacy in them. Some school districts require schools to give students written notice that lockers may be searched on reasonable grounds; others have eliminated lockers. While random searches violate the T.L.O. principles, searches following a “hit” by a drug-sniffing dog are probably valid. And, a search based on a reliable report that a student brought a gun to school will also be upheld, if it meets the “reasonable grounds” test. Even then, though, the methods and scope must be limited: Administrators can’t search for a rifle in a pencil case.

What other situations might be used, successfully or otherwise, to justify a search of a student’s locker or backpack? School staff have grounds to suspect a student of drug use or sales and the student is seen making repetitive trips to his or locker, then clustering with small groups of students not known to be his friends. Reports that another student has contraband—alcohol, drugs, knives, guns—at school. Reports that a student possesses stolen items or evidence of other crimes at school. Gang activity or violence between students. A health emergency. An immediate threat to health and safety, such as reports that students plan a shooting or to set off a bomb at school.

Wasn’t there a recent decision about searching a student’s underwear?

Methods and scope are key to a recent decision that offers considerable story potential. In Safford Unified School District v. Redding (2009), the Supreme Court invalidated an underwear search of a middle-schooler suspected of possessing forbidden prescription pain relievers. Administrators had grounds justifying a search of her locker and backpack—to which she consented—but went too far in searching her underwear. Why? No evidence suggested that the pills presented a danger or that they were in her underwear, making the search “excessively intrusive.” The search violated the girl’s Fourth Amendment right against unreasonable searches.

School search law and policy has changed a lot in recent years, in response to competing concerns about privacy, on the one hand, and over school shootings, bullying, and other violence, on the other.

School search law and policy has changed greatly in recent years, in response to competing concerns about privacy, on the one hand, and over school shootings, bullying, and other violence, on the other. State and local variations abound. Even before Redding, some states and school districts specifically prohibited school officials from conducting strip or body cavity searches. Washington State mandates a search where there are reasonable grounds to believe a student illegally possesses a gun. You can create local rules or procedures to suit your story, keeping in mind the overriding constitutional principles.

Trial starts in two days and a key witness has gone missing. Now what?

First, pull your hair. Then, get looking. If you find her but she refuses to testify voluntarily, get a subpoena requiring her to appear in court and threaten her with contempt of court if she doesn’t appear or if she appears but refuses to testify. Contempt of court covers a lot of ground; the gist is disobedience of a court’s order or authority. There are two kinds of contempt: civil and criminal. The terms stem not from the nature of the underlying case or of the contemptuous act, but from the nature of the sanction. If it’s intended to ensure compliance with the court order, it’s civil. If it’s intended to punish and to vindicate the court’s authority, it’s criminal. Specifics are established by statute.

If your witness has left the area, you may be out of luck. Subpoenas are enforceable only within the issuing state. In some states and the federal system, a witness can’t be forced to travel more than 100 miles, even within state.

If your witness has left the area, you may be out of luck.

Subpoenas are enforceable only within the issuing state.

Think of other ways to get the witness back to the area to serve a subpoena, such as sending a fake party invitation or enlisting a family member to make an urgent appeal. Deception is okay, to a degree. Seattle police detectives, posing as a non-existent law firm, sent a murder suspect who had moved out of state a letter inviting him to participate in a class action lawsuit, with a return envelope. The lab got his DNA from the envelope (State of Washington v. Athan (2007)). In affirming his conviction, the Washington Supreme Court said “police officers are allowed to use some deception, including ruses, for the purpose of investigating criminal activity,” as long as the actions do not violate the suspect’s due process rights. Let your fictional officers devise a similar ruse to lure a witness back to testify.

Even if your story involves an official search, don’t overlook the local telegraph. In a criminal case related to a civil suit my firm filed, the prosecutor lost contact with a witness and feared she would have to drop charges. Every person in our office started calling people we knew in that community to ask for help: a teacher, a business owner, a former client who ranched in the area. Within an hour, the witness called our office saying, “Heard you’re looking for me.” We called the prosecutor and the case went to trial as scheduled.

That witness was friendly to our case, not suspected of any criminal involvement, and perfectly willing to be found; he’d simply moved, not gotten a phone in his name, and not thought to keep in touch. A witness who doesn’t want to be found may present a bigger challenge, but the search will give your story new dimensions.

When can information from confidential informants be used?

Warrant applications frequently include details learned from confidential informants (CIs) who are not named in the application. TV and movies have trained us to think of CIs as shady types, providing information in exchange for getting off the hook for their own crimes. That is sometimes the case, but not always. Those who live on the edge are often the ones who know about suspicious activity, and they may have perfectly good reasons for reporting it other than self-protection—a drug dealer, for example, may draw the line at murder or have no tolerance for child pornography. Other informants are ordinary citizens willing to go to the police, but they don’t want their names in the paper or on the public record. They may be neighbors or relatives who fear retaliation from the suspect or his circle. This is especially common in small towns or in insular groups within larger communities, such as the Hasidic community in New York or the Vietnamese in south Seattle.

TV and movies have trained us to think of CIs as shady types, providing information in exchange for getting off the hook for their own crimes.

Reliable information from a CI may help show probable cause for search or arrest. The application should include an officer’s affidavit stating that the CI has provided reliable information in the past. If there are questions, it’s smart to get corroboration; whether that’s necessary depends on the “totality of the circumstances.” If the CI is anonymous, even to police, the application must include corroborating evidence from police investigation, other reliable sources, or a combination. Multiple sources can be used. Here’s an example: A CI tells investigators that a suspect has been manufacturing meth, and provides details about locations, sources of materials, and buyers. Police don’t know the informant or his reliability. But police have observed the suspect with a known meth dealer five times in the last two months, and a local pharmacist recently reported that the suspect attempted to buy substantial quantities of over-the-counter drugs known to be used in manufacturing meth. When investigators interview the suspect’s landlord, she says she’s seen people come and go at odd hours and observed the suspect cooking something foul-smelling when she stopped by to collect the rent. No one person corroborates all the informant’s statements, but individual details have been corroborated, and taken together, they reinforce the story’s reliability. Police can use all the information to support a search warrant application.

Indicators of CI reliability include providing reliable information in the past, making statements against personal interest, personal observation or other first-hand knowledge, and the level of detail provided. Information provided voluntarily by a concerned citizen—the pharmacist in my scenario—is viewed as more inherently reliable than statements by a person known or suspected to be involved in crime.

Defense counsel may file a Motion to Disclose Identity of a Confidential Informant, as part of the hunt for grounds to challenge the showing of probable cause and the CI’s credibility. The officer may have accurately testified that the CI provided reliable details in the past, but neglected to point out several instances where the CI’s reports were proven false. Was the CI paid for information or given special treatment? Jurors may be given a “cautionary instruction,” telling them to consider evidence of motive, bias, or bad character in weighing the informant’s testimony or information obtained from a CI.

A CI can’t be compelled to testify, which would expose his identity. But if he agreed to testify in exchange for immunity from prosecution and then refuses to testify, he could be held in contempt of court. A confidential informant is a good way to add more CI—character interest—to your stories.

How do public defender systems work?

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.

Even so, courts and legislatures were slow to grasp that a person cannot get a fair trial without competent defense counsel. Some states recognized the right to counsel in serious cases long ago—Indiana was first, in 1853, grounded in “the principles of a civilized society,” although it didn’t articulate a constitutional right until 1951. The U.S. Supreme Court recognized the right in federal prosecutions in 1938, but refused to extend it to state prosecutions. Finally, in Gideon v. Wainwright (1963), the Court said that the right to counsel is fundamental, and therefore applies to state prosecutions through the Fourteenth Amendment, which extends the Sixth Amendment and other due process protections to state courts. The decision formalized a change in thinking: Twenty-two state attorneys general signed a brief supporting Clarence Gideon’s position. Gideon first set out that position in a handwritten petition before the Court appointed appellate counsel for him, future Supreme Court Justice Abe Fortas. On retrial for robbery charges, with appointed counsel, he was acquitted. Journalist Anthony Lewis wrote about the case and its impact in Gideon’s Trumpet (1966).

In 1972, the Court extended the right to counsel to misdemeanors where liberty is at stake—that is, where sentencing options include incarceration. The right applies to all critical stages of a criminal prosecution, most notably custodial interrogation (we’ll talk about Miranda shortly), arraignment, plea negotiations, and sentencing, and to “quasi-criminal” proceedings, like mental competency hearings, extradition, and others.

Following Gideon, public defender systems were established across the country. (Some local legal services organizations had been providing criminal defense for years; the Los Angeles County Public Defender’s office opened in 1914.) State and local systems have evolved over the years. Variations include staff counsel, contract lawyers, and court-appointed counsel drafted from the community. Contract and drafting systems allow flexibility based on need, but experience varies and quality may suffer, although no doubt some lawyers tired of chasing clients for money appreciate the guaranteed pay. Now, some systems are centralized, as in Minnesota, while others are run by individual counties or judicial districts, as in New York and Washington. Oregon manages its system centrally, using a mix of staff and contract lawyers for different services. Florida elects its public defenders, who then hire staff counsel.

Studies by the American Bar Association and American Civil Liberties Union have prompted critical changes, but more change is needed. In Montana, an ACLU lawsuit resulted in a statewide system, replacing the prior patchwork. Similar suits have prompted reform in other states. A class action suit in New York brought the issue to a boil in 2010; at this writing, claims that the state’s system is inadequate are still pending. In 2010, the Justice Department launched a new Access to Justice program to expand indigent defense. The National Center for State Courts’ (NCSC) Indigent Defense FAQs page gives details on current state systems. (See Book Links.)

Public defenders have the same obligations to their clients as private defense counsel. The only real difference is that defenders don’t pick their clients—they take whoever qualifies for services under local guidelines. The NSCS estimates that 80–90 percent of criminal defendants qualify for indigent defense. Clients can be ordered to repay the costs of their defense, if able to do so.

Public defenders have the same obligations to their clients as private defense counsel.

So, can’t I have a real lawyer?

Public defenders are real lawyers, of course, but this not-uncommon question reveals some recurring problems with access to the justice system. Despite the changes, issues still exist which affect the quality of service. Underfunding and inconsistent organization create problems in recruiting and retention. High case loads and turnover mean defendants in less serious cases might work with a series of lawyers who often lack time to dive deeply into the case. Limitations on other resources—access to investigators, experts, exhibit preparation, and the like—affect both experiences and outcomes. However, many public defenders are seriously committed to their work and make a career of public defense. The ABA reports that starting salaries for public defenders and prosecutors are now about equal, but this is not true everywhere. By law, federal defenders must be paid the same as their counterparts in the U.S. Attorneys’ offices. Some defenders, as in Cook County, Illinois, are unionized.

The systems still face funding problems, as demands continue while resources disappear. The challenge of maintaining quality service requires commitment from the entire community, in recognition of the constitutional importance of public defense.

The ABA reports that starting salaries for public defender and prosecutors are now about equal, but this is not true everywhere.

An ever-changing, stress-filled system creates great possibilities for fiction. While quite a few mystery series involve criminal defense lawyers—think of John Lescroart’s Dismas Hardy, Michael Connolly’s Mickey Haller, and of course, Erle Stanley Gardner’s Perry Mason—public defenders are rare in fiction. Horace Rumpole was known to accept appointment, and Ayelet Waldman’s “Mommy Track” series featured a former public defender turned amateur sleuth. On TV, both Perry Mason (Raymond Burr) and Ben Matlock (Andy Griffith) usually prevailed, often identifying the real culprit right there in the courtroom. The cases the father-and-son lawyers (E. G. Marshall and Robert Reed) handled in The Defenders involved many hot legal issues of the early 1960s.

As major or minor characters, public defenders deal with good people in bad situations, and with bad people in worse situations. Their friends and relatives may challenge why they do the work, asking how they can defend people they know are guilty and why they don’t get a real job. Some of the most horrific cases present the most interesting intellectual and philosophical issues. How will your defender character respond? What drives him to pursue this work: the experience of someone close, his own troubled youth, the belief that everyone deserves a good defense?

What’s the deal about Miranda warnings?

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at government expense.”

In Miranda v. Arizona (1966), the U.S. Supreme Court decided several cases from around the country that raised a critical issue: Must a suspect be warned of his rights before being interrogated? Which rights? Under what circumstances? And, what are the consequences if he isn’t warned? The Court said the Constitution requires that suspects in custody be informed of their right to silence, which is grounded in the Fifth Amendment right against self-incrimination, that anything they do say could be used against them, and that they have the right to counsel. Only if the suspect understood those rights and voluntarily waived them can statements made during custodial interrogation be used against the suspect in court.

A noteworthy exception to the warning mandate is the “public safety exception” of New York v. Quarles (1984), where an officer or public safety is at risk.

The Supreme Court decided two Miranda cases in 2010. In Maryland v. Shatzer, the suspect requested a lawyer and questioning stopped; fourteen days later, he was taken into custody, waived his right to counsel, and voluntarily confessed. His initial request for counsel did not bar the later interrogation or prevent an effective waiver.

Ernesto Miranda was convicted of rape and kidnaping, based on his confession and the victim’s identification. He was not advised of his right to counsel or to silence, although the written confession form included a preprinted statement that he knew his rights and that his statements could be used against him. After the Supreme Court decision, he was retried, without the confession, and again convicted, based on eyewitness testimony and the testimony of his common-law wife (with whom he was in a custody battle over their daughter) that he had admitted the rape to her. (We talked about the spousal privilege in Chapter 1, and we’ll look at common-law marriage in Chapter 7.) Miranda was released in 1972 and returned to prison for a time in 1974. While out, he sold signed Miranda cards for $1.50 each. He was stabbed to death at age 34 during a bar fight in 1976; no one was charged.

In Berghuis v. Thompkins, the Court held 5-4 that once a suspect has been warned, he must specifically invoke his right to silence—an explicit waiver is not required—and that a brief response amounting to a confession will be taken as a waiver and will be admissible. The Michigan detectives asked Thompkins if he prayed to God, and when he said yes, they asked him if he prayed for forgiveness for “shooting that boy down;” yes, he replied again. That, the majority held, was a choice to respond, and thus to waive the right to silence. The result of the decision may be that police will continue to question suspects who remain silent after being warned, hoping to increase the likelihood of an eventual response. Keep in mind, though, that some states may hold otherwise under their constitutions, and individual police departments may require explicit waivers.

Keys for writers to remember about Miranda warnings:

• only suspects in custody are entitled to warnings;

• warnings are required only before interrogation—that is, questioning;

• voluntary statements not made under questioning are admissible;

• a suspect who’s been warned can waive his rights and agree to be questioned;

• it’s the substance of the warning, not the exact language, that matters. But most law enforcement departments require officers to use standard language to prevent later disputes over what was said.

Consider this scenario, looking first at custody: Police ask a man to come to headquarters to talk about the disappearance of a child in his neighborhood. He agrees, drives his own car, and is interviewed in an unlocked office; everyone is cordial and it’s clear that he’s free to leave any time. He’s not in custody. Contrast this with the same man ordered to get into the back of a police car, which then takes off; he hasn’t been told he can’t leave, but under the circumstances, he’s not reasonably likely to believe that he can.

Now let’s look at interrogation. In the interview room, two officers tell the man they’re waiting for a photograph to be printed. They don’t warn him. Meanwhile, they discuss the scene they’ve just left: the blood, the horror, and wonder out loud what kind of person would do such a thing. What kind of warped mind, what kind of terrible childhood, and so on. Squirming, the man finally blurts out, “You leave my mother out of this. She had nothing to do with me killing that girl.” He then breaks down in tears and tells the whole story. There was no interrogation, just a conversation between two officers, maybe with the goal of provoking a response, or maybe not. After analyzing all the facts, the judge may conclude that the suspect was not in custody and never consider whether he was interrogated. If the facts establish custody, the judge will consider whether the statement was a voluntary, spontaneous response to the officers’ conversation or whether it amounted to an interrogation. That decision determines whether his statements are admissible or must be suppressed.

What if the suspect was warned first? Analysis will focus on whether his statements were coerced, and therefore inadmissible, or made voluntarily with full knowledge of his rights. The facts make all the difference.

Assume the suspect requests a lawyer, either before or after his confession, but keeps talking. The lawyer will move to suppress, in order to determine whether the additional statements are admissible, under the analysis just described.

TIP: By changing the setting, the age, sex, race, and even the size of the suspect and officers, the time of day, how long the suspect remains in custody, and of course, what’s said, you can add more tension and plot complexity. Is the conversation on a street corner at mid-day or in a small gray room in the basement of the police station? Is the suspect sixteen or forty-five? Is the door open or shut? Do the officers come and go, take bathroom breaks, eat and drink, but offer the suspect nothing? Is his agreement to waive his rights threatened or coerced, or has he been treated with basic human decency? If the suspect is likely to talk, nothing will shut him up faster than being warned; suspects watch TV, too, and, of course, many have been through the drill before. Is your story better served by a silent suspect or a talkative one, by wrangling over admissibility of a confession or by going to trial quickly?

The Miranda decision, written by Chief Justice Earl Warren, isn’t easy reading, but it is fascinating. A former prosecutor himself, Warren rightly believed that prosecutors have a responsibility to protect individual rights and ensure fair trials, as well as to prosecute crime. Your fictional prosecutor and detectives might agree, or they may shade the line.

Writers of historicals, remember that attitudes about the rights of the accused changed significantly in the 1960s. Miranda was a controversial 5-4 decision, even though the FBI and some states already used similar warnings.

My character is in custody in another state. How do I get him extradited to my state?

Extradition procedures differ depending on why your character is being held in the other state. If he’s held on a warrant from your state, the process is fairly simple. But if he was arrested on charges in the other state, more factors come into play.

The process generally goes like this: Your character, David, is arrested in Wisconsin, and authorities discover, through a computerized information-sharing system such as the National Crime Information Center (NCIC) database, that there’s an outstanding Minnesota warrant for his arrest. Wisconsin authorities notify their Minnesota counterparts. The Minnesota prosecutor decides whether to send a written request for extradition; if he declines, he will probably be required by law to dismiss both warrant and underlying charges. If return is requested, David must decide to accept or fight the request. He is entitled to a lawyer at this stage, if he wants one. If David agrees to return, paperwork is completed and arrangements for secure transfer are made. The process is usually completed within a short time; two or three weeks is typical. (For a link to one state’s extradition form, see Book Links.)

If David decides to fight, matters slow a bit. The requesting state must file a motion and brief with the court in the custody state showing what charges were filed, the evidence in support, and why the arrest warrant is legitimate. To successfully resist, David has to show “good cause” why he shouldn’t be returned for trial. The most common reason is lack of probable cause for the warrant. Successful challenges are rare. Again, requests are usually handled quickly—the custody state does not want the expense of playing host any longer than necessary—although resolution could take a few months while each side briefs the issues for the judge.

But what if Wisconsin arrests David on local charges, then discovers the Minnesota warrant? It can keep him and take first crack, return him and request his later return, or drop the charges. The state with custody must act quickly, before arraignment, to prevent the clock from starting on his right to a speedy trial. Factors in the decision include the comparative seriousness of the charges, the strength of the evidence, and whether the cases are related, e.g., part of a cross-state crime spree. If the Wisconsin arrest is for a felony and the evidence is strong, Wisconsin might hold David and try him; if he’s acquitted, he’ll be sent to Minnesota for trial there. If he’s convicted in Wisconsin, he’ll have to serve his sentence before being returned for trial in Minnesota. Conversely, Wisconsin could send him to Minnesota for trial and request his return later. The two states’ prosecutors will likely talk it over and work out an agreement.

Adjacent states deal with extradition requests regularly, and they typically have a streamlined process in place. The general process remains the same even for distant states, although transport may become a problem and costs, paid by the requesting state, may be a factor.

Adjust the facts to suit your story. If you want David returned to Minnesota, keep his nose clean in Wisconsin; just have him arrested and returned on the Minnesota warrant. If he commits a crime in the second state, make it a misdemeanor and up the ante in the original state, e.g., multiple felonies, aggravating factors like violence or a particularly vulnerable victim, or a long criminal history in the requesting state.

How does international extradition work?

That’s trickier. Consider an American involved in questionable doings in France who then escapes to China. If she stays in China, your American character won’t be returned to France to face charges. A key principle of international law is that a country has legal authority over persons within its borders, regardless of their citizenship. Another country wanting to try a suspect must formally request, through legal and diplomatic channels, that the suspect be turned over to its representatives. That can happen only if the two countries have an extradition treaty. But France, like the United States, has no treaty with China, leaving no legal mechanism to request the suspect’s return.

What if the fictional suspect returns to America, which does have an extradition treaty with France? Treaties vary widely, but requests typically trigger an analysis of factors like these:

A key principle of international law is that a country has legal authority over persons within its borders, regardless of their citizenship.

• Is the crime serious? Murder, bombing, rape, then yes. Minor theft, no.

• Has the country requesting extradition shown a “prima facie” case against the person sought, i.e., facts establishing the elements of the crime charged?

• Do the facts constitute a crime in both countries? Rarely is this a factor interstate, because most states treat crimes similarly, but it is a frequent issue in international extradition.

• Can the suspect reasonably expect a fair trial? Again, this is not typically a factor on requests for transfer within the U.S., but it is a serious issue between nations.

• Is the potential sentence proportionate to the crime? This factor often blocks extradition to countries with extreme punishments for drug offenses. As well, countries without the death penalty, such as Canada, Mexico, and many European countries, regularly refuse to extradite to the U.S. if the suspect would face death; as a result, American prosecutors frequently agree not to request the death penalty in exchange for extradition.

• Is the suspect a citizen of the country making or receiving the request? France, for example, is one of many countries prohibited by law from extraditing its own nationals, so it could not return film director Roman Polanski, a French citizen, to the U.S. for sentencing on child sex charges. When Polanski brought a libel case in British courts, he testified by video hookup from France rather than travel and risk arrest in Britain and extradition to the U.S. He took the risk when he traveled to Switzerland in 2009 to accept an award; after his arrest, he challenged the extradition request, which the Swiss court ultimately rejected. In contrast, the U.S. has no blanket ban on extraditing its nationals.

• Are the motivations, and the crime, political? Were charges brought to damage a government’s political opponents or retaliate for good-faith decisions that turned out badly? This factor does not immunize former officials from genuine investigations of wrongdoing, as with former Chilean president Augusto Pinochet and former Panamanian dictator Manuel Noriega.

• Are the motivations and crime military? In 2007, Germany decided not to request extradition of alleged CIA operatives on kidnaping allegations because its treaty with the U.S. prohibits extradition for purely military matters and the U.S. was likely to deny any request.

In the U.S., the Department of State makes the ultimate decision whether to request extradition or to grant another country’s request, in consultation with the appropriate U.S attorney or state attorney general. Requests may be reviewed by the courts, as in the American review of France’s request for the extradition of Noriega. In contrast, in Mexico, a court must review a proposed request to extradite from another country before the request can be made. The court denied permission to request extradition of Duane “Dog, the Bounty Hunter” Chapman from the United States because the crime charged was relatively minor. If the Mexican court had allowed the prosecutor to request Chapman’s extradition, the Mexican government would have made a formal request to the U.S. government, triggering State Department review.

Corporate crime can also involve international extradition. Prosecutors in Kansas City indicted Chinese pet food manufacturers on charges related to deliberate product contamination. Without a treaty, the defendants could not be brought to the U.S. for trial, so why bother? Because the case had potential long-term impact on international trade and relationships. Charges could also pressure co-defendants within the court’s reach, such as American importers and Chinese distributors doing business in the U.S. And the charges sent a message to everyone in the manufacturing and distribution chain, and to customers, that pet food contamination would be treated seriously.

Extradition and its complications are fertile soil for international thrillers and suspense novels: plots involving terrorism, drug running and money laundering, art theft, and trafficking in weapons or other stolen or illegal goods. Also, extradition may help you deepen the plot of any story with characters from another country. It offers rich potential for emotion and conflict in cases of child abduction or violence against family, especially if the suspect returns to a country that refuses to extradite its own nationals. See the State Department’s International Child Abduction web page for more details. (See Book Links.)

Can a conversation—on the phone or in person—be recorded?

The real questions here are whether recorded conversations can be used as evidence in court and what are the potential sanctions for unauthorized recording. As always, state law varies and changes. Some states permit use of recorded conversations at trial if one party consented to the recording; others allow their use in civil trials but not in criminal trials; still others ban their use in court altogether, unless the recording was made by police officers with a valid search warrant.

The U.S. Supreme Court held in U.S. v. White (1971) that warrantless electronic monitoring of face-to-face conversations with the consent of one party to the conversation does not constitute a search and, therefore, does not violate the Fourth Amendment. It held that a suspect does not have a reasonable expectation of privacy in conversations with informants, even though the suspect does not know he’s talking to an informant.

But as we’ve discussed, the federal constitution dictates an individual’s minimum guarantees, and states are free, through their constitutions, to give their citizens a greater degree of protection. In a classic example, Montana’s constitution also guarantees the freedom from unreasonable searches and seizures, and specifically recognizes the individual right to privacy. In State v. Goetz (2008), the Montana Supreme Court reviewed the use of a conversation between a confidential informant and a suspected drug dealer that was recorded, via wire, with only the informant’s consent and without a warrant. It held that the state constitution narrows the range of permissible warrantless searches, and that the recording—essentially a search of a conversation, rather than of a place—was an unreasonable search and seizure and could not be used at trial. As a result, Montana law enforcement officers need a warrant to record conversations between informants and suspects, even if the informant consents to the recording.

The federal constitution dictates an individual’s minimum guarantees, and states are free, through their constitutions, to give their citizens a greater degree of protection.

These cases illustrate the range of options. If your story involves an FBI investigation, your investigators can freely wire a character with a concealed recording device, but if your investigators work for a state or local department, you may need to send them for a warrant, and consequently heat up the tensions when they don’t get one.

Most states and the federal government also have laws that apply to recording in other contexts, such as court hearings or city council meetings, which are routinely taped, or when an insurance adjuster interviews a witness to a car accident. Most allow recording if one party consents. States that require consent of both parties typically make exceptions for public officials and employees recording a meeting or conversation as part of their official duties, public meetings, and emergency calls to health-care facilities. They also make exception for persons who have been warned that the conversation may be recorded, as in calls to customer service departments at banks and brokerages, or calls by prison inmates. In some states, simply knowing that a conversation is being recorded and then talking is considered consent. Unauthorized recording is typically a misdemeanor. Though violations are not often prosecuted, these statutes have reshaped some business activities and increased individual protection.

Remember these laws deal only with persons involved in the conversation, or those who hear the recording. They don’t help your non-law enforcement character who plants a voice-activated recorder to capture a conversation that doesn’t involve him. That’s unlawful in almost any circumstance.

But what about that insurance adjuster—or a reporter who wants to record a conversation to get the quotes right? None of the typical exceptions apply. The conversation can be recorded if the witness consents. The adjuster or reporter should tell the witness, on the recording, that the conversation is being recorded and ask if the witness consents. That avoids violating the privacy in communication statute, and allows the conversation to be admitted at trial, if necessary.

For state-by-state information, see The Reporters Committee for Freedom of the Press guide. (See Book Links.)

Why does the Montana constitution require a result exactly opposite that of the federal constitution? Montana entered the Union in 1889 using a bare-bones constitution written quickly. In 1972, a Constitutional Convention, or Con-Con, wrote a dramatically different document, approved by voters in a 1973 referendum. The 1972 constitution takes advantage of nearly two centuries of experience in constitutional law in the state and around the country, and expresses values held by the people of the state. It articulates a right to privacy, a right to a clean and healthful environment, and a right to know relating to government agencies, among other rights not stated in the federal constitution. At least fourteen states, including Maryland, Illinois, Connecticut, and Hawaii, require voters to consider every ten or twenty years whether to establish a Con-Con to update their constitutions. In other states, the question can be placed on the ballot by initiative or referendum.