5 Legal Mistakes Authors Often Make

Welcome to the monthly series on artist entrepreneurship. Today we focus on 5 mistakes writers and story tellers make using criminal law in their stories — from our monthly guest columnist, Kelley Way, a lawyer specializing in literary law and other aspects of law. She’s also a writer! If you have general questions for Kelley on contracts or other aspects of literary law, be sure to comment below. And you can also email her, too.

PS. A list of books on literary law can be found here.

And now for a bit of necessary legalese:  Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.

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5 Legal Mistakes Authors Make

Like most people, I enjoy reading murder mysteries or watching crime shows on television. Ever since I went to law school, though, they just haven’t been as much fun, because now I know when they get things wrong. So, here are a few tips for those who write in this genre, or just like to read it, on some common misunderstandings of the law:

1. Entrapment. This one stands out the most for me, though that might just be because an example of this came up in an audiobook I was listening to while studying for the Bar Exam. Fictional criminals (and their attorneys) want to cry entrapment pretty much any time they are tricked by the police. In real life, this defense is very narrow, and rarely succeeds even when it applies. In order for it to succeed, the police must have come up with the idea to commit the crime, and the defendant was not predisposed to commit that crime. For example, one case where it was successfully used was when the undercover police approached the suspect and he suggested he help them smuggle some goods. The suspect refused, and continued refusing until they pressured him enough that he caved. That’s the sort of thing entrapment was invented to prevent.

2. Surprise evidence at trial. Granted, there are times when evidence is discovered in the middle of a trial, or a previously unknown witness comes forward, and it’s big enough to throw a monkey wrench in the proceedings. However, this is rare, and the court (i.e. the judge) is usually very unhappy with whoever overlooked this evidence earlier. In any trial (criminal or civil), all the evidence is laid out, all the witnesses are deposed, and all the arguments are given, long before the parties actually come into the courtroom. When a surprise does come up, the judge typically halts the proceedings to give the parties (and himself) time to process the new evidence and adjust their arguments accordingly.

3. Right to privacy. I admit, it’s fun when the investigator is skirting the law, sneaking around to find evidence that will lead him or her to the bad guy. However, the courts don’t like people’s rights being invaded, no matter who they are, and they will suppress any evidence that was acquired at the expense of the defendant’s rights.

So what sort of things violate the suspect’s right to privacy? The courts have said that a right to privacy can be found wherever a person has a reasonable expectation of privacy (usually a home, but things like a phone call in a closed phone booth would also be considered private). That means that wire tapping, heat vision, and other gadgets cannot be used without a warrant. However, the police can use whatever evidence they can observe or gather from someplace they are allowed to be. For example, there’s no violation of privacy if they can see the suspect commit a crime while they’re standing on the street, or if they’re invited in and see evidence of a crime sitting in plain sight.

4. Miranda rights. These are an integral part of any crime show or story, but sometimes they are used when it’s not necessary, or left out when they are. Police are only required to read a suspect his or her Miranda rights when they are conducting a custodial interrogation (or intend to in the relatively near future). A custodial interrogation means that the suspect is not free to leave while the police ask questions intended to elicit a criminal response (i.e. a confession).

5. Accomplice liability. Unlike what some shows or stories would have you believe, not reporting a crime, or standing by while someone you know commits a crime, is not itself a crime (unless you find a dead body and fail to report it). A person can only be considered an accomplice if they help the person in a significant way, and they must know that they are helping the person commit a crime. There is also added protection for people who meet these criteria, but don’t actually do anything illegal themselves. When the assistance the person gives is lawful, the person needs to have some kind of “stake in the outcome” to be considered an accomplice.

 So, there’s a very brief survey on criminal law. If any of that was confusing, or you’re just itching to know more, you know how to reach me.

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Kelley Way is a member of the California Bar

Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. She can be contacted at KelleyAWay@gmail.com.

Others articles on the Writer’s Fun Zone by Kelley Way:

Top 10 Things Authors Need to Know About Contracts (April 2011)
All’s Fair in Love and War – But Not in Copyright Law (May 2011)
The Perils of Internet Posting (June 2011)
What is Trademark? (July 2011)
What is Copyright? (August 2011)