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

IN THE LAST CHAPTER, WE TALKED ABOUT CRIMINAL procedure. Now it’s on to substantive criminal law. You’ll learn the concept of the elements of a crime, how they vary, and how they’re proven—and we’ll see more of those all-important differences in terminology. Then it’s on to a few recurring topics in fact and fiction: gun laws, hacking, juvenile justice, false allegations of abuse, mental competence, and the insanity defense.

The difference is largely one of degree, a reflection of the legislature’s judgment—on behalf of the people—of the seriousness of a crime. Felonies include intentional killings and certain unintentional killings (like vehicular homicide and manslaughter), sexual intercourse without consent, kidnaping, arson, robbery, burglary, escape, and distribution of dangerous drugs. Misdemeanors include possession of small amounts of drugs or drug paraphernalia, disorderly conduct, trespass, indecent exposure, solicitation (aka prostitution), and some traffic offenses.

Some crimes—notably assault—may be either felonies or misdemeanors. Some states classify assaults into aggravated or simple, while others define them separately, e.g., partner assault, assault with a deadly weapon, assault on a sports official, with each classified as a felony or misdemeanor. The degree of intent and possible harm makes the difference.

Some states establish classes of felonies and misdemeanors, e.g., A, B, C, with punishment differing for each class. Felonies typically carry prison terms, while misdemeanors are punished by fines and up to a year in the local hoosegow.

Each state defines crimes by statute, and both names and definitions vary widely. So while it’s impossible to summarize those variations here, writers should have an idea of the elements of the most common crime in fiction. As always, check the law in your story state for specifics.

Let’s look at examples from three states to give you an idea how the most common terms—and a few less common ones—are used.

Montana: Montana separately defines four types of homicide: deliberate homicide, mitigated deliberate homicide, negligent homicide, and vehicular homicide while under the influence.

“Deliberate homicide” can be charged in two scenarios: when the accused “purposely or knowingly” caused the death of another, or when the accused caused a death while committing or attempting to commit one of several serious felonies or fleeing from the crime or crime attempt (sometimes called felony murder, discussed below). Sentencing is complicated, but the statutory ranges give an idea of the relative seriousness of each crime. For deliberate homicide, the penalty for adult offenders is death, life in prison, or a prison term between 10 and 100 years. (Sect. 45-5-102, MCA (Montana Code Annotated).)

“Mitigated deliberate homicide” occurs when a person “purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor’s situation.” In other words, some trigger played a role, lowering the defendant’s culpability a notch. The lesser severity of the crime is reflected in the potential prison time: two to forty years (Sect. 45–5–103, MCA). In one case, the victim brought a gun and a knife to a fist fight, prompting the defendant to pull his own knife; the court held that it was reasonable for the jury to conclude that the threat posed by the victim’s weapons might cause “extreme mental or emotional stress,” justifying the conviction for mitigated deliberate homicide. (Montana v. Lamere (2003).) A young, single mother with financial trouble and a difficult child killed the child during one of his not-infrequent temper tantrums; the trial judge noted that while circumstances did not excuse the killing, they did demonstrate the extreme stress necessary for the lesser charge of mitigated deliberate homicide. She was convicted. (Montana v. Winger (1997).) In contrast, anger and intoxication are not sufficient mitigation. (Montana v. Miller (1998).)

“Negligent homicide” requires proof only that the defendant negligently caused the death of another person. Criminal negligence is acting with “conscious disregard of the risk of death” or disregarding a risk of causing death that he should be aware of—in other words, a serious failure to use reasonable care in the circumstances. Negligent homicide is most often charged in fatal auto accidents. The potential prison time is up to twenty years. (Sect. 45-5-104, MCA.)

In a case that illustrates the difference between negligent and mitigated deliberate homicide, the defendant struck the victim in the head several times, causing a fatal brain injury. He admitted intending to hurt her, but denied intent to kill, and claimed he was only guilty of negligent homicide. The judge disagreed, saying “a person cannot strike lethal blows and then avoid the consequences of his actions by saying he was surprised his victim died or that he did not intend to kill her.” His conviction for mitigated deliberate homicide was upheld. (Montana v. Koepplin (1984).)

Last, there’s “vehicular homicide while under the influence.” This is a species of negligent homicide; it requires proof that a person negligently caused the death of another person while driving under the influence of drugs or alcohol. The potential prison time is up to thirty years, with no deferred sentences, reflecting the legislature’s judgment of the seriousness of the crime. (Sect. 45-5-106, MCA.)

Mitigated deliberate homicide, negligent homicide, and vehicular homicide while under the influence are all “lesser included offenses” of deliberate homicide, under its first definition, though not under its felony murder definition. This means a person may be charged with the more serious offense, but if circumstances warrant, the judge could dismiss the greater charge and instruct on a lesser charge, or on both, giving the jury a choice.

Mystery and thriller writers, note that the language “cause the death” of another is broad enough to include murder for hire or directing a murder, even if the person charged did not physically kill the victim.

Mystery and thriller writers, note that the language “causes the death” of another is broad enough to include murder for hire or directing a murder.

Washington State: In Washington State, the terminology is different, and so are some of the underlying distinctions. Homicide is the killing of a human being by (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide. (RCW 9A.32.010 (Revised Code of Washington).)

Murder can be first or second degree. First degree murder is causing death with premeditated intent; premeditation “must involve more than a moment in point of time.” The same conduct, without premeditation, may constitute second degree murder. First degree murder may also occur when, “under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person.” Felony murder may be first or second degree murder, depending on the underlying felony.

“Homicide by abuse” applies to the deaths of vulnerable persons, and it requires proof of three elements:

1) “circumstances manifesting an extreme indifference to human life;”

2) causing the death of a child under sixteen, a developmentally disabled person, or an adult who is dependent on another for the basic necessities of life, because of age or physical or mental disability; and

3) a pattern or practice of assault or torture of the victim. (RCW 9A.32.055.)

Washington also defines two degrees of manslaughter. First degree manslaughter occurs when a person recklessly causes the death of another; in second degree, the actions are not reckless, but only negligent. It is also first degree manslaughter to “intentionally and unlawfully kill an unborn quick child by inflicting any injury upon the mother of such child.” (RCW 9A.32.060 and.070.)

Washington specifically defines as homicide deaths resulting from illegal drug sales. A “controlled substances homicide” is a death that occurs as a result of the use of a controlled substance unlawfully delivered to the decedent by the person charged with the crime. (RCW 69.50.415.)

In Washington, homicide is excusable “when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.” (RCW 9A.16.030.)

There are two categories of justifiable homicide, the first involving law enforcement officers, and the second justifying deadly force.

There are two categories of justifiable homicide, the first involving law enforcement officers and the second justifying deadly force to protect oneself or another person from an imminent threat of serious injury, death, or another felony, or while resisting a felony in a residence. (RCW 9A.16.040.) Other states also recognize the right to use deadly force in defense of persons, and some, but not all, recognize it in defense of property; however, most don’t include it in the definitions of homicide, but define it by other statutes or in case law.

California: If you’re setting a fictional killing in California, take a look at the definitions and sentences in Penal Code Sects. 187–99, which include some of the quirky phrases we sometimes hear. California law defines murder as “unlawful killing” “with malice aforethought.” (Sect. 187(a).) Malice is an odd word in the law, meaning different things in different contexts. Because the phrase “malice aforethought” catches the ear, I’ve set out the full California definition:

Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

(Sect. 188.) Sect. 188 states that murder can be first or second degree, depending on a variety of circumstances.

California defines manslaughter as “the unlawful killing of a human being without malice,” and California law recognizes three types: voluntary, involuntary, and vehicular. Voluntary means in “a sudden quarrel or heat of passion.” Involuntary refers to killings that occur “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” Vehicular, of course, refers to deaths occurring as the result of driving a vehicle. California further defines the crime of vehicular manslaughter while intoxicated in two degrees, ordinary and gross.

California also defines excusable and justifiable homicide, much as Washington does.

An unusual defense, based on the elements, rejected: In early 2010, a Kansas judge rejected defense arguments that the jury should be allowed to consider voluntary manslaughter in the trial of Scott Roeder for the murder of Dr. George Tiller in a Wichita church, finding that Roeder’s claim that it was necessary to kill Tiller to prevent him from performing abortions did not meet the statutory definition. Had the defense been allowed, Roeder would have been required to show that he had “an unreasonable but honest belief that circumstances existed that justified deadly force.” The jury convicted Roeder of premeditated first degree murder.

Several of these statutes—the Montana and California statutes on drunk driving deaths and Washington’s “homicide by abuse” and “controlled substances homicide”—are examples of a state legislature determining that existing homicide statutes and penalties were not sufficient to address a particular problem and devising a specific solution. Other states have done the same with other crimes. Those statutes offer writers unexpected opportunities for crime and punishment.

While phrases like “malice aforethought” and “heat of passion” are intriguing, they are also somewhat antiquated, and no longer widely used.

TIP: While phrases like “malice aforethought” and “heat of passion” are intriguing, they are also somewhat antiquated, and are no longer widely used. If your Seattle police detective uses them, local readers might dismiss him as a know-nothing “Californicator”—or toss your book across the room. Meanwhile, referring to manslaughter in Montana or mitigated deliberate homicide in California might get your book the same treatment. And that would be murder.

What is statutory rape?

Writers often ask about using the threat of criminal charges relating to sex between teenagers of different ages to increase the stakes. The idea is that a person under a certain age—typically 16—is incapable of consenting to sex with a person over a certain age, because age gaps create a power differential in which the younger person can’t give voluntary consent.

Note that statutes don’t typically say “statutory rape.” Common terms include underage sex, sexual intercourse without consent, and nonconsensual sex. The word rape implies physical force, not an element of this crime.

Typical statutes distinguish underage teenage sex from child abuse and establish different punishments depending on the victim’s age and the age gap. And, yes, the statutes term the younger person the “victim” and the older the “offender,” because of the legislative judgment that the younger person’s inability to consent makes the older person’s actions a crime.

An FBI study shows that underage sex involves girlfriend-boyfriend in about 30 percent of cases and acquaintances or friends in 62 percent. It also shows that forcible sex crimes involving a juvenile victim are three times more common than crimes based solely on age. The problem of criminalizing sex in underage relationships has led some states to enact what are sometimes called “Romeo and Juliet laws,” making evidence of a small age difference and a preexisting relationship a defense to the charges. Other states make the crime a misdemeanor if the age difference is small, or limit sentencing options to probation, fines, or community service.

Be aware that the victim’s age alone may not be determinative; some states require a minimum age gap. For example, the law might say if she’s 15 and he’s 17, no crime occurs. If the statute criminalizes a four-year gap and he’s 19—legally an adult—but not a full four years older, again, no crime. But consider a younger victim: If she’s 13 and he’s 17 and a half—four or more years older—the sex would be a crime. In that case, he’d be subject to a harsher sentence than if she were older, but a lesser sentence than if he were 18. Of course, the offender may be female and the victim male. As written, some statutes apply only to intercourse, and some apply only to persons of the opposite sex. If either of these is an issue in your story, check state law.

Note that there are also other reasons why a person might be legally incapable of consent to sex: mental or physical disability, including intoxication or sleep, physical helplessness making her unable to resist, and incarcerated persons or mental health patients when the perpetrator is an employee of the facility with supervisory authority over the victim.

So when is a prosecutor likely to pursue a case based on an age difference alone? Only if the facts warrant treating the case as a crime. Factors considered include the following:

• What are the circumstances—why was a complaint made? No prosecutor wants to be used for personal vengeance or moral outrage.

• How wide is the age gap? Charges are more likely at 13 and 17 than at 15 and 17.

• What conduct occurred? Digital penetration or actual intercourse? Vaginal or anal?

• Is there an ongoing relationship between victim and offender?

• The maturity of the individuals involved.

• Multiple victims and evidence of deliberate pursuit of younger victims.

• Evidence that the accused reasonably believed the alleged victim was older than her actual age.

• The offender’s age. An 18-year-old male should be treated differently than a forty-year-old, even though he is legally an adult, because he can’t be expected to have the same judgment as an older man.

And, of course, if force or physical injury is involved, there can be no consent.

In some states, a teenager convicted of statutory rape may be required to register as a sex offender, depending on whether the registry laws include all sex offenses, limit it to specific offenses, or include only offenders judged on release to be at risk to rape again. Statutory rape is what’s called a status offense—not the predatory or violent crime the registries were meant to include. (See the discussion and links to state and national registries in Chapter 4.) If you want a character in your story to face this problem, check the story state’s registry requirements.

What is felony murder?

The felony murder rule expands liability for murder to a person who did not actually kill the victim, if the killing occurred during the course of a felony. It covers both killings by accomplices and unintended killings. If two people rob a bank and one shoots and kills a teller, the other is guilty of felony murder, even though he did not pull the trigger or intend that his accomplice do so.

Forty-some states recognize felony murder, which originated in English common law but was abolished in Britain in 1956. In 1990, Canada eliminated it for accomplices as violating “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”

Forty-some states recognize felony murder, which originated in English common law but was abolished in Britain in 1956.

Some states separately define the crime of “felony murder.” Others include it in the definitions of murder or homicide, as discussed earlier in this chapter. The underlying or “predicate crimes” must be serious felonies—what are sometimes called forcible felonies—such as robbery, sexual intercourse without consent, arson, burglary, kidnaping, aggravated kidnaping, and felonious escape, or attempted crimes. In the federal system, the felony murder rule also applies to crimes defined as terrorism.

The rule may also apply to killings during flight from the crime, say if one bank robber shoots and kills a bystander on the way out the door. A few states apply it to accidental deaths during the felony or flight. If the getaway driver hits and kills a bystander, a case of negligent homicide would be elevated to deliberate homicide (or the local equivalents).

The defense might argue that the person charged was not armed, did not know that his accomplice was armed, or had no reasonable grounds to believe his accomplice might do something likely to result in death or serious physical injury.

The rationale is that the rule both punishes and deters crimes that create the foreseeable risk of murder, or in jurisdictions that include accidental killings, the foreseeable risk of death. People who jointly participate in a crime are each held responsible for all consequences. The FBI reports that about 16 percent of homicides in 2006 occurred during felonies. Opponents question the deterrent effect and say the rule punishes a person who lacked intent to kill as if he’d had the intent, rather than for his own misconduct.

Some states apply the death penalty to persons convicted of felony murder. This raises questions under the Eighth Amendment, prohibiting cruel and unusual punishment. The death penalty is not usually imposed on minor participants in the crime. (See the analysis of mitigating factors in the death penalty discussion in Chapter 4.)

Here’s one example of the felony murder rule in action, from Florida. In March 2003, a young man named Ryan lent his car to four friends who talked about going back to a house where all had just attended a party to steal a safe belonging to the homeowner, a known marijuana dealer. There may have been talk about “knocking off” the dealer’s teenage daughter. Ryan testified that he thought they were joking, especially about a killing. During the burglary, the girl was beaten to death with a shotgun found in the home. The man who killed her, the two other burglars, and the driver were all sentenced to life without parole. So was Ryan, who wasn’t there and had no criminal record. Prosecutors offered him a plea, because of his lesser culpability, but he took his chances at trial and lost. Is Ryan’s felony murder conviction justified, because the crime would not have occurred without the car? Or, is it draconian, because he drank too much and carelessly lent his car to a buddy, as he had without incident many times before?

Can my amateur sleuth legally carry a gun?

Maybe. Not only do state laws vary, but some municipalities have enacted gun laws as well. About half the states prohibit openly carrying handguns or long guns (rifles and shotguns), with numerous exceptions. Hunters with valid licenses may carry openly, with some limitations. Some states allow people to openly carry guns while hiking or fishing, for personal safety against wild animals and humans.

Laws and rules for permits to carry a concealed weapon (CCW or CCP) vary widely and change often; check your story state. Illinois and Wisconsin do not issue any permits, while permits are not required in Alaska or Vermont. Utah offers permits to nonresidents who take a one-day class. Some states allow the issuing authority—typically the county sheriff or local police chief—discretion to deny a permit, while others require permits to be issued if the minimum statutory requirements are met.

Typical requirements include in-state residency, a clean criminal record, no recent mental commitment, no dishonorable military discharges, physical ability to handle a gun, and successful completion of a handgun training class. Domestic violence charges may automatically disqualify applicants. Fugitives need not apply; a background check will be run. Writers occasionally ask how a character’s fingerprints might have been taken, other than during a previous arrest—a concealed carry application is one option.

Writers occasionally ask how a character’s fingerprints might have been taken, other than a previous arrest—a concealed carry application is one option.

Some issuing agencies require proof of a need for self-defense, such as threats or work-related reasons, justifying permits for private investigators, jewelers, and criminal lawyers. Actor Sean Penn reportedly obtained a CCP after being stalked by a former employee and receiving threatening calls and letters.

Most states have reciprocity agreements, but it isn’t always a two-way street. Your Seattle-based sleuth who follows a suspect to Montana will have her permit recognized, but her Montana counterpart won’t get the same courtesy when he goes to Washington. Permits issued in California and New York, for example, may be recognized elsewhere, but those states don’t return the favor—they recognize no other states’ permits. In contrast, Oklahoma and Missouri, among others, recognize all permits. That Utah nonresident permit may get your character reciprocity not available with his home-state permit. If your sleuth crosses state lines with a gun, she may face charges for illegal possession, even if she has a permit in her state and doesn’t use the gun.

There is much debate over whether concealed carry permits affect violent crime rates. Some maintain that the possibility that a potential victim or witness might be armed prevents crime, while others believe that more guns means more gun-related crimes. Statistics, of course, can be interpreted in many ways to support either position.

My sleuth has a carry permit for the story state. Are there places where she can’t take her gun?

Many states prohibit carrying, even with a permit, in bars, churches, schools, parks, courts and government buildings, correctional facilities, police stations, airports, and polling places. Laws on guns in cars vary widely. Many states require them to be kept in a locked area, even separated from ammunition; local permits may allow guns in locked area of cars if holstered or unloaded.

What are some common exceptions to gun permit requirements?

Keep in mind that your character may or may not need a permit to have a gun in his or her home or business, again depending on state and local law. The law may distinguish handguns from long guns, and semiautomatics from automatics.

Keep in mind that your character may or may not need a permit to have a gun in his or her home or business.

State and federal gun laws do not apply to active-duty military, including military police.

What gun laws apply in national parks?

Your character might be affected by a recent change on guns in national parks. Effective February 2010, state laws where the park is located now determine the matter. Some parks officials opposed the change, concerned that it would create uncertainty over governing laws among visitors and cause enforcement problems, especially in the thirty-some parks that straddle state lines.

What laws apply to law enforcement officers crossing state borders?

For professional sleuths, be aware that the Law Enforcement Officers Safety Act of 2004 allows qualified state, federal, and local law enforcement officers, active and retired, to carry a concealed firearm in any state, regardless of local laws. The stated purpose is to make it easier for officers to be called into action when needed in response to natural disasters, terrorism, or other problems, without violating conflicting laws. Two primary exceptions: local laws allowing private property owners to ban guns, and local laws permitting state and local governments to prohibit guns on government property, must still be followed. Other federal gun laws, such as restrictions on firearms in federal buildings, also still apply. Not all officers qualify—the key is their right to carry and good standing in their law enforcement job. If your fictional officer crosses state lines in pursuit of a suspect, use an arrest for unlawful possession of a weapon to slow him down.

What legal rights does the Second Amendment provide?

The Second Amendment provides: “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall be not be infringed.” Astute readers will note that the commas are confusing and could lead to conflicting interpretations. In District of Columbia v. Heller (2008), the Supreme Court resolved the long-running dispute over whether the right is individual or belongs only to state-run (that is, official) militia or armies, holding that the right is individual, and overturned the city’s outright ban on handguns. The principle was extended to states in McDonald v. City of Chicago (2010).

But Second Amendment rights are still a hot-button issue across the country, sometimes serving as a code phrase for specific beliefs about the role of government and the relationship between government and gun ownership. If your plot involves politics, hunters, anti-government conspiracy theorists, or “white rights” activists, light a fuse under the phrases “Second Amendment” or “gun control,” and stand back.

Gun laws change regularly, so consult the laws for your story locale, or check the NRA website, with links to federal, state, and local laws. (See Book Links.)

My protagonist asks her 17-year-old nephew to do some computer research. Is she legally responsible if he hacks into a private computer system without her knowledge or approval?

If he gets caught, yes, although she may be off the hook if she told him to stay legal and had no reason to think he wouldn’t. That probably won’t work with a younger teen, though—while a 17-year-old is old enough to know the legal limits, a younger child may not be, giving your protagonist more responsibility for supervision.

The murder suspect in my story is thirteen. Will he be tried as a juvenile or an adult? In what court? Where will he be held pending trial?

Your young teen will probably go to juvenile or youth court, which handles delinquency cases—those that would be considered criminal if involving an adult. Rather than trials, juvenile courts hold hearings to “adjudicate” whether the child is “a delinquent youth,” sometimes called a “youth in need of intervention.” The focus is on supervision, treatment, and rehabilitation to help juvenile offenders avoid becoming adult offenders. Cases are tried to a judge, without a jury. Hearings are generally closed to the public. Juveniles do have the right to counsel, to confront witnesses, and so on.

Rather than trials, juvenile courts hold hearings to “adjudicate” whether the child is “a delinquent youth.”

In some states, the same judges handle both juvenile and adult cases; in others, certain judges handle only juvenile cases, at all times or on rotation. A few states mix it up, with larger counties maintaining separate juvenile court systems and smaller communities depending on the same judges for all cases. Los Angeles County, for example, maintains a separate juvenile court system within Superior Court.

Pending adjudication, your teen will be held in a juvenile holding facility. If he must be kept in an adult facility briefly for initial processing or in an emergency, he should be separated by sight and sound from all adult detainees. Children held in adult facilities can easily be victimized or exposed to inappropriate behavior. These miscarriages of justice do occur, whether intentionally or by mistake, and can form powerful plots or subplots.

After adjudication, your youthful offender will be given a “disposition,” that is, a sentence. While in custody, at all stages, he must be given education.

The alternative is criminal court. Each state sets an upper age limit, by statute, for juvenile courts—fifteen, sixteen, or seventeen—but most also allow younger children to be transferred to criminal court and tried as adults. Legislatures expanded transfer significantly during the 1980s and 1990s, in response to a rise in juvenile crime and public outcry. According to a U.S. Department of Justice report, transfer requests increased by 80 percent between 1985 and 1994, but declined by nearly 50 percent between 1995 and 2005, as violent juvenile crime dropped. In 2005, juvenile courts nationwide handled 1.7 million delinquency cases. Transfer to criminal court was requested in 56 percent of the cases, and of those, granted in less than 1 percent—roughly 6900 cases. 51 percent of cases transferred involved offenses against persons, 27 percent property offenses, and 12 percent drug offenses. Eighty-five percent involved males 16 or older; of those, 58 percent were white and 30 percent were black, although the statistical likelihood of transfer was about the same for black and white juveniles.

States use three basic types of transfer laws. The first is “concurrent jurisdiction,” giving the prosecutor discretion where to file; if charges are initially filed in criminal court, the juvenile may request transfer to juvenile court. Under “statutory exclusion laws,” certain classes of cases must be filed in criminal courts, based on age and offense. Under “judicial waiver laws,” cases are filed in juvenile court, but the prosecutor may request transfer to criminal court. A judge may have discretion in some cases but be required to transfer in others.

Most states establish specific criteria for consideration. They vary, but include the age of the offender, personal details like cognitive abilities, any learning disabilities, past behavior, the nature and circumstances of the offense, whether a youth court proceeding and disposition will protect the community, treatment recommendations, and treatment options available in each court. If an older juvenile, about to “age out” of the youth court system, would not remain in state custody long enough to complete a treatment program in a youth facility, but sentencing as an adult might keep him in custody long enough to complete an intensive supervision or “boot camp” type program in adult court, the judge might choose transfer, because youth court would not provide the supervision or structure needed for both the juvenile and community protection.

Back to the very young juvenile in your story. According to a University of Texas report, roughly eighty children 13 and under are transferred to adult court every year. Some states say that children as young as 7 may form criminal intent and be tried as adults, although the youngest child in the United States charged with murder as an adult appears to be an eleven-year-old in Michigan. After his conviction, the judge strongly criticized the law and sentenced him to youth detention rather than life imprisonment, where he reportedly turned his life around.

In Roper v. Simmons (2005), the U.S. Supreme Court eliminated the death penalty for crimes committed by minors. In Graham v. Florida (2010), the Court held that juvenile offenders may not be sentenced to life without parole for cases other than murder, because of the possibility of maturity and rehabilitation over time. Each of the 129 such prisoners across the country may now request sentence review and a “meaningful opportunity” to show that they have become “fit to rejoin society”; release is not mandatory.

One highly-publicized case of a teen tried as an adult is Lee Malvo, the 17-year-old accomplice of John Muhammad, aka the Beltway Sniper. Malvo was convicted in Virginia and sentenced to life without parole.

Juvenile cases present thorny issues of fairness and justice. Laura Lippman’s Every Secret Thing—in which two eleven-year-old girls in Baltimore are sent away to a youth facility for the murder of a baby girl they found in an abandoned stroller—touches on social and legal issues in the juvenile justice system.

The transfer statistics are taken from a June 2009 U.S. Department of Justice study. For an overview and state-by-state summary of transfer laws, and a look at children under 12, see “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” a 2009 project report from the University of Texas. The National Center for Juvenile Justice state profiles are another excellent source of state-by-state specifics. (See the Book Links section.)

How can my character protect himself from his unstable, estranged wife who is threatening to accuse him—falsely—of child molestation?

This is a scenario ripe for conflicting perceptions: Is she unstable or is he covering up?

A report will trigger an investigation by police and child protective services. Assuming there is no question that the accusations are false, he has several options. First, he should document her threats by writing down, in detail, what she said, when, where, and who else was present, and update the list with each additional threat. If he later needs to show that she made the threats, the detailed record will boost his credibility.

He could report the threats to police. This is a two-edged sword, a good tool for a fiction writer. In reality, if he made a report, police and prosecutors aren’t likely to take action against her at this stage, unless the threats are repeated or escalate significantly. But the report might help him later, by documenting the threats. But people in hostile domestic situations often don’t take steps outsiders think reasonable because of fear—here, loss of custody or visitation.

He and his lawyer should identify potential witnesses to testify that she made the threats and that she acknowledged they were false and meant to harm him—if that’s the case. He may also need witnesses to disprove the abuse claims, such as the child’s doctors, teachers, and family and friends. In both situations, doctors and therapists who treat either spouse or the child, as well as clergy, could be witnesses; privilege issues might arise in the civil case, but they don’t typically apply in criminal proceedings involving suspected abuse. In addition, if there’s an investigation, the investigators—police and child protective workers—are important witnesses. An alleged child abuse victim is often evaluated by a therapist who has specialized training and experience and whose opinions will be critical.

Your character’s lawyer should strongly urge him to be careful with whom he discusses the threats and not to discuss them with his wife or her friends and family. That could cause a lot of trouble, which might be good for you as the storyteller. If they are in divorce or separation proceedings, his lawyer might discuss the threats with her lawyer; that could fan the flames, or her lawyer might persuade her to stop making false threats, which could affect her own custody and visitation rights. And, of course, she could face charges for knowingly making a false report.

If they are not separated, or have physically separated but neither has filed for divorce, the lawyer should discuss those options, including custody issues. Your character’s first priority, of course, is to protect his child from the fallout of false allegations and from any other harm inflicted by an unstable mother.

The average person would probably be tempted to use a pocket recorder during conversations when the threat might be repeated. You can use this to cause your characters all kinds of problems. (See the discussion on recording in Chapter 2.)

What is competence to stand trial and when does it become an issue?

The defendant’s mental status may be considered in determining whether he is competent to stand trial, whether mental illness affects his responsibility for the crime, and in sentencing.

The U.S. Supreme Court held in Dusky v. U.S. (1960) that a defendant’s constitutional right to due process and fundamental fairness give him the right to a competency evaluation before trial. The focus is on his current mental capacity. Does he have the ability to understand the proceedings and help counsel prepare his defense? Can he make the necessary decisions, e.g., can he evaluate a plea offer and make a knowing, voluntary waiver of his right to go to trial?

The U.S. Supreme Court held that a defendant’s constitutional right to due process and fundamental fairness give him the right to a competency evaluation before trial.

Defense counsel raises the issue by motion, although the judge may also raise the issue (called sua sponte, meaning on his own). A clinical evaluation by a psychiatrist or psychologist will be ordered. The judge reviews the briefs, reports, and other evidence submitted, such as neurological or neuropsychological testing, and holds a hearing. The judge may interview the defendant. According to one study, about 80 percent of all defendants whose competency is considered are found competent to stand trial.

Competence is decided by the judge, typically during the pretrial phase, although the issue can be raised at any point in criminal proceedings. For example, during trial, a defendant’s courtroom outbursts, irrational behavior, or apparent inability to understand what’s going on may raise questions about competency.

Mental illness alone does not establish incompetence. Ted Kaczynski, the Unabomber, was diagnosed with paranoid schizophrenia but held competent—he was perfectly lucid and able to understand the criminal process and work with his counsel.

If the defendant is found competent, trial proceeds. If not, he’ll be sent to an inpatient facility—options vary by state—for treatment intended to restore his competence. If treatment works, the defendant may then be tried. But if treatment is not successful, he should be released. The Supreme Court held in ackson v. Indiana (1972) that an incompetent person can only be held for a reasonable time to determine whether it’s possible to restore his competency—he cannot be held indefinitely. This standard arises from past abuses, but is still vague and hard to enforce. Of course, if he presents a danger to himself or others, he may be civilly committed, which requires a separate proceeding.

Mental illness alone does not establish incompetence. Ted Kaczynski, the Unabomber, was diagnosed with paranoid schizophrenia but held competent.

A related issue is the defendant’s right to refuse medication, whether because he dislikes the drugs, or because he wants to avoid trial. The Supreme Court held in Riggins v. Nevada (1992) that the defendant had the right to refuse anti-psychotic meds; although the state could prove a need to medicate in some circumstances, it hadn’t done so there.

The screenwriters of Miracle on 34th Street (1947) asked whether Kris Kringle was competent when he claimed to be Santa Claus, ignoring the legal standard of whether he presented a danger to himself or others in favor of the better story.

Tip: The wide range of factual scenarios and potential legal outcomes make this a terrific area for fictional exploration. However, a finding of incompetence ends the trial, or at least delays it, so this aspect may be best used in a subplot or complication.

What is the insanity defense?

The underlying premise is that a person cannot be held responsible for criminal behavior if mental illness prevented him from understanding that his actions were wrong. This inquiry focuses on the defendant’s mental status at the time of the crime.

The test has changed significantly since the defense was first recognized in 1843, and courts applied several standards from the 1950s to the early 1980s. The 1982 trial of John Hinckley, who shot President Reagan, highlighted the controversy and prompted legislative changes. In most cases, there is little doubt that the accused committed the crime; the real issue is insanity. In Hinckley’s case, the defense arose early, and psychiatric evaluations—which took four months—began shortly after his arrest. The standard applied at trial was whether Hinckley could “appreciate the wrongfulness” of his actions, and the government had the burden of proving that Hinckley was sane. After three days of deliberations, the jury found him “not guilty by reason of insanity” on all counts.

After the trial, Congress and many states changed their laws to shift the burden of proof to the defendant, meaning that a person claiming the defense must prove its essential elements. In essence, the presumption of innocence is now paired with a presumption of sanity. Currently, in federal cases, the defendant must prove that he has a “severe” mental disease that made him “unable to appreciate the nature and quality or the wrongfulness of his acts.” The language of state standards varies somewhat, but is similar in most aspects. Note that as with competence, proof of mental illness alone is not enough.

Several states give jurors an additional verdict choice: “guilty but mentally ill.” A handful of states (Idaho, Kansas, Montana, and Utah) do not allow the defense at all, but allow the defendant to introduce evidence of mental conditions to show that he did not have the level of knowledge or intent (“mens rea”) for the crime charged. In other words, he tries to prove that he could not form the intent to purposefully or knowingly kill another. If he meets his burden, the state will be unable to prove all elements of the crime charged, and he will be acquitted by reason of mental disease or defect—essentially the same result as under the insanity defense.

The insanity defense is still much in debate. The heart of the disagreement is the tension between treatment or protection, and punishment. Advocates say the defense allows mentally ill offenders to obtain needed treatment and keeps them out of the prison system, where they lack treatment and are often victimized. A humane society must recognize that some people cannot be held to the same standards of conduct as the rest us because of mental illness they can’t control. Others believe the defense allows the guilty to escape punishment for their crimes, and suspect defendants of faking mental illness to get an acquittal or avoid prison. Justice Department statistics say the defense is raised in only about 1 percent of cases, and succeeds in only 25 percent of those. A large percentage of acquittals result from plea agreements, where the prosecutor agrees that the defendant should be sent to treatment, not prison. Ideally, the evaluation process detects attempts to fake mental illness, which can trigger an enhanced sentence.

Ideally, the evaluation process detects attempts to fake mental illness.

But the insanity defense was anathema to Ted Kaczynski, who insisted on representing himself, in part because his court-appointed lawyers wanted to raise the defense, while he believed he was sane. By legal measures, he was right. His writings and his arguments to the court demonstrated that his paranoid schizophrenia—a diagnosis he rejected—did not prevent him from understanding that his actions were wrong.

A defendant found not guilty but mentally ill may be confined to a mental institution if commitment standards are met and released if he becomes no longer mentally ill. Hinckley is confined to St. Elizabeth’s Hospital in Washington, D.C. In 2003, a judge ruled he no longer presented “a serious danger” to himself or others and approved unsupervised visits with his parents. If he establishes that he is no longer a threat to himself or others, he will be released.

In contrast, a defendant found guilty but mentally ill will be sentenced and kept in government custody for the length of his sentence. Where he is held depends on that state’s procedures and facilities, but it’s typically a prison mental health unit. If he becomes no longer mentally ill while still serving his sentence, he will be transferred to an ordinary prison unit. Once his sentence is complete, he must be released, although, again, civil commitment is still possible.

The insanity defense is not limited to murder cases. Lorena Bobbitt argued that she was temporarily insane when she severed her husband’s penis with a kitchen knife, and a Virginia jury agreed; she was released after psychiatric hospitalization.

The insanity defense looms large in Otto Preminger’s 1959 classic, Anatomy of a Murder, based on the novel by Robert Traver (the pen name of Michigan Supreme Court Justice John Voelker), starring Jimmy Stewart, Ben Gazzara, and George C. Scott. Just be aware that the law on insanity has changed, as has the admissibility of evidence of a woman’s dress, behavior, and reputation in a rape case.

For details of John Hinckley’s trial, see law professor Doug Linder’s Famous Trials website. The insanity defense dates back to 1843—writers of historicals should start their research with an article on the evolution of the defense on Professor Linder’s website or the Supreme Court’s historical review in Clark v. Arizona (2006). I’ve also linked to a Find Law state-by-state summary. (See Book Links.)