Get Your Facts Right In Crime Writing w/ NY Times Bestselling Author Alafair Burke

Cool Stuff NY Times Bestselling Author Alafair Burke Learned as a Prosecutor that You Can Use in Your Book 
This post originally appeared on ThrillWriting. It’s a great blog. If you haven’t checked it out, click on the link. There is a vast ocean of information for writers there.
Alafair Burke, a graduate of Stanford Law School, is a professor of law at Hofstra University. She uses her background to inform her novels. Alafair is a NewYork Times Bestselling author and has been interviewed by The Today Show, People Magazine, The New York Times, MSNBC, The Washington Post, USA Today, and The Chicago Sun-Times. And in person, she is just a fun and wonderful person.
The Myths:
 
1. Criminal cases involve trials
* Trials are the exception
* 90% are resolved by plea.
* They are fast and informal – the suspect waives his rights, and
   pleads guilty.
* Charge Bargain – Instead of murder one, your character will plead
   guilty to a lesser degree.
* Sentence Bargain – Your character pleads guilty to the charge but
   will receive a sentence that is less than the maximum.

2. Police and prosecutors are part of a single, integrated, happy
    team. 
* The police and the prosecutors institutionally are not friends.
   They have different hierarchies.
* Individuals make friends and personal relationships, and they
   ARE important.
* There is a cultural collision in their jobs – they are intentionally
   different.
   ~ Police – I caught the bad guy.
   ~ Detective – I’ve got my evidence
   ~ Prosecutor – Looks for what’s missing, has hindsight, wants to
      have no holes (doubt)
   The police and the detectives rush to tell the story. It is the
   prosecutor’s job to be skeptical of the story.
3. Judges are umpires
*** Who the judge is matters A LOT.
Judge Shopping
*If the plea deal is going poorly then they find
  out who the judge is who will try the case. If it is a judge who
  hands down harsh sentences, it might be better not to chance it
  and take a lesser time deal. If the judge is unsympathetic to the
  issues that the prosecutor might be having in filling in the holes in
the crime story line, then it might be best if the prosecutor offers a
lesser charge.
* When a warrant is needed some judges are more flexible and
   some more exacting. The process of getting a warrant is fast –
   under three minutes.
4. Defendants HATE prosecutors and love their defense
* Defendants recognize and often respect a prosecutors power.
* Often a defendant views their own lawyer as unsuccessful or
   powerless.
5. Police Need Warrants
* 90% of searches are warrant-less.
* Search is looking for something
* Seizure is interfering in movement
A. Is it a search? Only if the police:
   `Do something outside the bounds of a “reasonable expectation of
     privacy”
   `Commit “trespass.”
* Public View – It’s okay to:
  `Follow
  `Aid the senses by using binoculars and flashlights
  `Collect abandoned property such as a cigarette butt, and
    discarded trash.
  `Use things exposed to third parties – for example – conversations
   between friends.
  `Use K9
B Is it a seizure?
* Cops can approach a person and talk with them.
* Would a reasonable person believe that they were free to leave?
   The assumption is that a reasonable person would feel free to
   walk away from the police officer.
* Chasing is NOT the same thing as seizing,
C. Here are the exceptions – 
     You DO NOT NEED A WARRANT to:
Arrest someone in a public place
* Terry stops – stop and frisk for weapons (need reasonable
   suspicion)
* Protective sweeps – a well-established law that
law enforcement arresting someone in a house may perform a
quick and limited “protective sweep,” warrant-less search for
their own safety when there is a reasonable suspicion that the
house may contain a dangerous person.
* Search incident to an arrest – this includes the person and
   everything within their arms reach. So your officer might want to
   time when they arrest the person so they can search whatever is in
   his reach. Ex. while he’s opening his trunk
* Exigent circumstances:
   ` Probable cause
   ` The object or person will move (not be found again)
   ` Someone could get hurt
   ` Evidence could be destroyed
* Community care taking ex. well checks
* Administrative searches
* Special needs
   `airports
   `probationers
   `students at school
* Roadblocks
* Inventory searches (the police impound a car and an inventory is
   taken of the items therein)
* Borders
* Consent –  90% give consent. YOU CAN REVOKE CONSENT
* Plain view –  finders keepers

UNLIKE the real police as a writer, you get to make up the facts.

* Don’t let the law stuff mess up your plot line.
* Want the police to hit a wall? Set up the facts to require a warrant
– or have the supervisor or prosecutor say, “better safe than
sorry.” Then you could have a judge sign and they move forward
OR not sign, and tah dah! They’ve hit the wall.
A couple of final concepts
Yes, you can pick up someone’s phone when you arrest them if it’s in their wingspan. BUT NO you can’t search the contents without a warrant. The court says that’s a definite no-no.
Sneak and peek warrants – Normally when the police go in and search something they plaster the warrant on the door or hand it to the person to let them know that the warrant was used and a search took place. BUT with the Patriot Act – the police can tell the judge why they do not want the suspect to know that they searched for something. If the judge agrees, then they don’t have to leave notice. An example – they go and collect data from someone’s computer or put on computer keystroke tracking devices. That way they can monitor someone’s ongoing activity.
A big thanks to Alafair  for her wonderful talk. She has a new book coming out – why not pick up a good read?
As always, I’d love to hear what you think.  I am always so thankful when authors from the legal community share their knowledge.  Getting the facts straight is so important in crime writing, as well as other genres too.
Enjoy the rest of your weekend, and happy writing!

2 Comments

  1. This was good info and confirmed some things in my mind about how things work. I feel more comfortable now about somethings in my own book and future books I’ll be writing. I’ve bookmarked for reference.

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