Defining humanity

Last week I posted about potential plot bunnies when dealing with the undead. This week I’m expanding on the topic a bit.

Under common law, homicide is defined as the unlawful taking of a human life. While seemingly simple, that definition has occasionally led to some interesting legal questions. For example, is an unborn baby “human”? At common law, the answer was no, but many have argued that at the very least, fetuses that would be viable outside the womb should be considered human.

If you are an author of speculative fiction, I think you could play with this issue in a number of interesting ways. Sure, there’s the undead, such as zombies and vampires. But what about sentient creatures from another planet? What about artificial intelligence—does it achieve humanity when it becomes sentient and self-aware? What if a human is genetically modified? What if so many parts of her are replaced with artificial bits that she’s barely organic? We’re talking an entire warren’s worth of plot bunnies here!

Relatedly, we have the issue of what constitutes “taking of a life.” In reality, this has come up in cases where the victim was brain-dead but still on life support, and when he died many years later from complications related to the initial attack. But again, spec fic offers us interesting questions. What if the victim is resurrected? What if his body is destroyed but his mind or soul—some essence of him—is preserved in some way? What if he’s reincarnated?

I think the world is sorely in need of more spec fic legal procedurals!


Do you write paranormal or horror? Then today I have a plot bunny for you, courtesy of friends and my daughter. Let me preface this by saying that, like many attorneys, I enjoy considering legal hypotheticals. We can’t help it. Law school ruined us.

So my younger daughter recently sent me this text:

She was at a birthday party. I don’t even want to know how the subject came up. But I posted the text on Facebook, which led a couple of friends to make comments about zombies. And that leads to today’s plot bunny.

Suppose Alex is a zombie. And further suppose Alex  attacks Bob, a living human being, and kills him. And then, maybe after some time has passed and after Bob has begun his own zombification process, Alex eats Bob’s brainnnnns.

Assuming zombies are subject to criminal laws, can Alex be charged with two homicides?

Part of our answer will depend on an interpretation of the law. Homicide is generally defined as the unlawful taking of a human life. So are zombies human? If not, Alex can be charged with only one homicide, plus maybe desecration of a corpse. If zombies are human, another question arises. Does it violate double jeopardy to charge someone with killing a person and then destroying the zombie that person has become?

We could add some other twists as well. What if Alex kills Bob, abandons the corpse, returns before Bob has risen as a zombie, and eats his brainnnnns then? Would that still count?

And what defenses might Alex have? Can a zombie form mens rea?

One of my law profs once gave a lecture about how lawyers are vampires, but I think lawyers and zombies could be fun too. So please. Consider writing a zombie legal procedural novel?

Jailhouse lawyers

In June I toured the Wyoming Frontier Prison, which operated as the state penitentiary from 1901 to 1981. The tour guide mentioned that at one point, the prison housed the most complete law library in the state. I don’t know if this bit of trivia is accurate, but it does raise an interesting topic: jailhouse lawyers.

The problem is this: Inmates have only limited access to legal assistance. Yes, they’re entitled to an attorney for their case but not for all appeals and not for other legal cases such as habeas corpus and civil lawsuits. Of course, they probably don’t have money to hire counsel for those cases. And while they can represent themselves, a large proportion of inmates are functionally illiterate, poorly educated, or have limited English skills, so they can’t realistically research and write about their legal issues.

As a result, jailhouse lawyers exist. These are inmates who are willing to provide legal help to other inmates. Almost none of them have law degrees, so they are largely self-taught. The courts have held that unless prisons provide reasonable alternatives, they must allow assistance from jailhouse lawyers. Furthermore, the prisons must allow adequate law libraries.

I think jailhouse lawyers could make a wonderful addition to a book. Maybe your hardened con redeems himself by struggling against all odds to prove someone else’s innocence or to improve prison conditions. If you’re considering this plot idea, this handbook might help.

Ineffective assistance

Last week I posted about the right of criminal defendants to be represented by counsel. Today I’m discussing a related matter—what if the defense lawyer sucks?

On the one hand, the case law is clear: defendants have the right to effective assistance. While this doesn’t mean the lawyer has to be a Clarence Darrow, it does mean she has to do her job competently. If she doesn’t, a conviction may be overturned.

Ah, but there’s a major caveat here. In order to make a claim of ineffective assistance of counsel, the defendant has to prove more than the lawyer’s incompetence. He also has to prove that, if it weren’t for her bad job, the outcome of the trial would have been different. This is called the Strickland test, named after the case in which the Supreme Court articulated it. In many cases, the test essentially means the defendant has to prove he’s innocent, which can be difficult even with a good lawyer.

Courts have upheld convictions in which the defense attorney was drunk at trial, was mentally ill and delusional, fell asleep during the trial, asked the defendant’s family for money to do DNA testing but kept the money and didn’t do the test.

I think ineffective assistance of counsel is an excellent and underused plot device. Imagine that your hero is innocent but gets a cruddy lawyer. Maybe that lawyer is even paid off by somebody to do a bad job? And now your hero has to prove he didn’t do it. Lovely!

Defense attorneys

Defense attorneys have been around, in one form or another, for centuries. Back in ancient Greece, for example, an accused person might hire an orator to speak at trial on his behalf. Back then, knowledge of the law wasn’t as important as an ability to sway the jury. Historically, though, England allowed defense attorneys only in misdemeanor cases, and then only if the defendants could pay for them. People accused of felonies could pay to consult with an attorney before the trial but had to argue on their own behalf in court. (Although victims could hire a prosecutor—there was no equivalent to the District Attorney—they rarely did so.) By the beginning of the 18th century, however, defense attorneys were having a more active part in criminal cases. And this timing is important, because that’s when much of Britain’s legal system was exported to what became the United States.

By the time the US Constitution was written, the right to counsel in criminal cases was considered important enough to be included in the 6th Amendment. But it wasn’t until the 1960s that the Supreme Court ruled that in all criminal cases—state and federal—in which the defendant might be imprisoned, he is entitled to counsel, and the government must provide an attorney for him is he can’t afford to pay for one himself. Approximately 70-80% of defendants are indigent and unable to afford an attorney on their own.

There are several systems by which defense attorneys can be administered, and the specifics vary with jurisdiction. Broadly speaking, most major metropolitan areas have a public defender’s office, in which the lawyers work full time for the government, providing defense counsel for indigent defendants. But in less populated areas, a system like that may make less sense. In those cases, lawyers in private practice may contract with the government to provide defense services for a set amount of time and money. Or the courts may assign specific attorneys in private practice to defend particular cases. Some jurisdictions use a combination of these systems. For example, they might have a public defender’s office but rely on contract or assigned lawyers if the caseloads get too heavy.

While the right to an attorney may seem pretty basic, it encompasses a lot of details. To which specific proceedings does it apply? When can it be waived? What are the rules with respect to what defense attorneys can and can’t do? What are the standards of quality for defense representation? All interesting questions for later posts. For now, a warning—if you have a defense attorney in your story, make sure you do your research and find out how your jurisdiction administers defense services.