Monthly Archives: January 2018

Bang

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When I’ve traveled, I’ve learned that there are many things about the United States that mystify Europeans. I often have no logical explanation for them either. One topic that often comes up is guns. I’m not going to get into the heated debate about gun control today. And although I have some theories on the topic, I’m also not going to try to explain why gun ownership is such a fraught topic in this country. What I will do, however, is give a very quick introduction to the laws on gun ownership. If our characters are going to carry, you should know about this.

The mot famous law regarding weapons is the 2nd Amendment to the Constitution, which states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Like most of the other rights enumerated in the Constitution, this one is succinct. It doesn’t define it own terms, and it’s been up to the courts to interpret it and, on occasion, limit its scope.

Federal law places very few limits on gun carrying and ownership; those restrictions have been left to the states. This means laws can vary a great deal across jurisdictions. Also, most jurisdictions make distinctions between handguns and long guns (rifles and shotguns). Some states have different rules depending whether the gun is loaded. Some require permits and some do not, whereas in a few states openly carrying a gun in public is prohibited even with a permit.

So can your character legally walk down Main Street with a visible gun? Depends where he is.

There are many other variables to consider as well. What is the age, criminal history, and mental status of your character? What kind of gun does he want? When, where, and how does he want to acquire the gun? What kind of registration or licensing process is required? All things you’ll want to consider before handing him a weapon.

Also, you might want to think about the distinction between gun access and gun ownership. I live in California, which has some of the country’s most restrictive gun laws. But when I went to a shooting range, all I had to do was show my drivers license and they happily handed me a Berretta and a box full of bullets.

So you’ve heard this story from me many times before: before you write, research the relevant laws in your jurisdiction. You can begin with the Giffords Law Center or the NRA, both of which are partisan, but they do offer correct information.

Juries

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Last night I heard Rachel Maddow discussing the difference between grand and petit juries. (Psst, Rachel! )It’s pronounced petty.) I’ve posted on this before, but now is a good time for a refresher.

Grand juries, also called presenting juries, date back to 1166, when King Henry II made a variety of changes to England’s judicial system. Among other things, he appointed judges who would ride around–ride circuit–from town to town, hearing cases. When a judge arrived in a particular town, a panel of local bigwigs would present to him all the cases that had accumulated sine the last trials.

Nowadays, grand juries may be chosen in a variety of ways, depending on jurisdiction. Their size differs too, although it’s often more than 12 jurors. Their job in criminal cases is to determine whether enough evidence exists to proceed with the prosecution. In this way, they are said to act as shields against unjust charges. But they also act as swords because they can investigate, call witnesses, and subpoena evidence.

Grand juries are required in federal cases and in some–but not most–states. They don’t decide guilt, but rather whether there’s enough evidence to go to trial.

Petit juries are called that because they’re smaller–usually (although not always) 12 members. Again, their roots lie in the 12th and 13th centuries. In 1215, the Catholic church decided that it would no longer try English defendants by ordeal (e.g., making them carry hot irons or put their hands in boiling water). This means England needed a new way to determine guilt. Since everyone in England was already used to presenting juries, it was relatively easy to give juries the new task of deciding whether defendants were guilty. The judge acted as a sort of referee, but in the end, the jury determined the facts of the case.

In the US, any defendant who’s facing at least 6 month incarceration has the right to ask for a jury trial.

Attorney-client privilege

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Okay. Once again, not to get political… but a certain son of a certain sort-of elected leader (sigh) claimed that the attorney-client privilege applied to certain phone conversations between him and his father. Neither of whom are attorneys. But, said Junior, it totally counts because Dad’s lawyers were listening in on the conversation.

Does Junior’s argument have any legal validity? Of course not. But let’s look at the privilege itself.

To take a step back, it’s important to know that, in general, a person’s conversations with another person may be used as evidence. This is true whatever the mode of those conversations: live in person, voice via telephone, electronic via text or email, etc. But there are a few exceptions to this rule, situations where those conversations are protected and where the opposing side cannot “discover” them (i.e., force the other side to hand them over). These exceptions—or privileges—include conversations between physicians and patients, between clergy and penitents, between accountants and clients, between spouses, and between lawyers and clients. Each of these has special rules; today I’m just addressing the final one.

The primary purpose of the rule is to allow clients to be frank with their lawyers, which in turn allows lawyers to be more effective at defending them. In order for the privilege to apply, at least one of the people must be a lawyer, the other person must be that lawyer’s client (or seeking to become one), and the conversation must be about legal matters. Therefore, although I’m a lawyer, a friend who casually chatted with me about his plans for the next day would not be able to invoke the privilege to protect that conversation. And just because Dad’s lawyers were listening to a conversation doesn’t mean the privilege can be invoked.

Even when the privilege applies, there are exceptions. One interesting exception is that it generally can’t be used if one or more parties uses the information to commit a crime. For instance, if Bruce asks his lawyer, Tina, how best to cover up the fraud he plans to commit, that discussion isn’t privileged.

Another twist has to do with perjury. If, because of conversations with the client, the lawyer is aware of the truth of the situation, but then the client lies about those facts on the stand, the lawyer may have the ethical duty to rat him out to the judge. Thus, a lawyer may get caught between her duties to the defendant and her duties to the court. Plot bunny! (Many lawyers handle this situation by refusing to let a client take the stand if they believe the client will perjure himself.)

Furthermore, a client can waive the privilege and voluntarily choose to share privileged communications. Simply discussing the conversation in public constitutes a waiver.

Another exception to the privilege is especially pertinent to Junior’s situation. The privilege is nullified if anyone aside from the attorney and client was present during the conversation. Such as, say, a Russian lawyer who had neither father nor son as a client.

Of course, if certain sons of certain leaders can be this clueless about how the privilege works (or at least pretend to be), so could your characters. So feel free to make this a plot point, if you wish.

 

 

Lesser included offenses

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This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.