In search of Truth

I’m teaching a class on the history of criminal justice this semester (woohoo! Fourth Lateran Council!), and this week’s discussion turned to an interesting question: what’s the best way for a court to find the Truth? This might be a good thing to consider for authors, especially those who are creating a judicial system in a fantasy world or alternate universe.

For various historical reasons, England and it colonies ended up with a different approach to this issue than did continental Europe. The English—and American—version is known as the adversarial system. Under this system, each side in a criminal case presents evidence to an impartial decision-maker, usually a jury. Each side decides which evidence it wants to present. The judge in this system acts like a referee in a sporting event, making sure each side follows the rules. In the end, the decision-maker determines which side has been more persuasive. Has the prosecution proved every element beyond a reasonable doubt? Or has the defense managed to refute enough of the prosecution’s case to raise doubts?

The continental version is called the inquisitorial system. I know that for many people, that name brings to mind the Spanish Inquisition, but I assure you that heretics are no longer burned at the stake. In this system, the judge takes a much more active role and will often lead the course of the trial, making determinations about which lines of evidence to pursue. The judge will also determine guilt.

I don’t know that there’s any proof that either system is more effective at reaching the truth. Research has suggested, however, that people tend to feel most comfortable with and confident in the system they’re accustomed to. If you’re building a fictional system, you’ll want to think carefully about what suits your world best.



Somewhere along the line, a rumor started that police can’t lie to suspects, especially if the suspect asks whether the undercover officer is a cop. If the cop does lie, the story says, it’s entrapment. This is a myth. Cops can and do lie all the time. It would be hard for them to do their jobs otherwise.

Nevertheless, the defense of entrapment does exist. Its primary purpose is to ensure that otherwise innocent people aren’t lured by police into attempting crimes they otherwise never would have committed. The underlying idea, I think, is that everyone has a price. Given enough incentive, even the most law-abiding among us might be tempted to stray. (This was part of the idea in the movie Indecent Proposal.)

In the United States, standards vary for determining whether entrapment has occurred. Some states use a subjective test, asking whether the defendant was predisposed to commit the crime. Others use an objective test. That asks whether a reasonable law-abiding person, placed in the defendant’s shoes, would have been likely to commit the offense.

Entrapment comes up as a defense most often during sting operations, when undercover officers induce someone to do something illegal. Of course, the intention of the operations (we hope) is to catch people who already planned illegal activity. Sting operations can be very useful in a variety of contexts, such as prostitution, drug trafficking, and auto theft. But if the operation goes too far, innocent people may be drawn in. Police who want to engage in these activities need to be careful not to cross over the line.

For federal cases on entrapment, check out Jacobson v. United States (involving child pornography) and Sorrells v. United States (alcohol during Prohibition). Either could serve as good plot inspiration.


Plot bunny: plea bargaining dilemma

Last week I gave you a plot bunny (big city cop in a small town!), and here I am with another. This one will work pretty well if you want a sympathetic protagonist with a criminal record.

Here are the facts. About 95% of criminal cases never make it to trial. The primary reason for that is plea bargaining, in which the defendant agrees to plead guilty—often to lesser charges—in exchange for a reduced sentence. (For more on plea bargains, check this previous post.)

Plea bargains offer a lot of potential benefits. The defense attorney has a lighter caseload. So does the prosecutor—who also gets another conviction credited to her. The courts have fewer cases, resulting in less expense and less backlog. And guilty defendants get a lighter punishment.

But. What if the defendant is innocent? What if he honestly didn’t commit the crime, but his defense attorney comes to him with a deal from the DA: plead guilty and spend, say, 5 years in prison, or go to trial and risk getting convicted and spending  even longer locked up? What if the stakes in this gamble are really high—as in a potential life sentence? What’s our poor, innocent hero going to do? Well??

(Incidentally, that handsome plot bunny was drawn by the very talented Catherine Dair. You should check out her other work!)

History of juries

I sort of have a thing for history, and today I’m indulging myself by talking about the history of juries.

Like many other components of our legal system, juries come to us from Merry Olde England. Way back when—and I do mean way back, because we’re talking at least as early as the 12th century—a group of local men would investigate claims and present the evidence under oath to the judge. Essentially they were both prosecutors and witnesses, and they were called presenting juries. This is quite different from our modern concept of jurors as people who initially know nothing about a crime, although presenting juries still exist to an extent in our modern system; today we call them grand juries, and their job is to determine whether enough evidence exists to proceed with a criminal prosecution.

In 1166, in an act called the Assize of Clarendon, King Henry II required presenting juries throughout England. This was part of his effort to standardize the legal system throughout the country and also to ensure he maintained power in a way that wouldn’t piss off his subjects too much. (This was shortly after the Norman Conquest, when not much love was lost between the Anglo-Saxon commoners and the Norman nobility.) It was a clever idea in that it provided local input into prosecutions while still allowing the king-appointed judges to be in charge. The size of juries was already set at twelve men, although the precise reason for this is not certain.

At this point many criminal cases were still tried by the Catholic church using trial by ordeal. The accused would do something dangerous, like carrying a hot iron, and if he wasn’t harmed, it meant God had been protecting him, which indicated he was innocent. But in 1215 Pope Innocent III called the Fourth Lateran Council. Among other things, the council forbade priests from officiating over trials by ordeal.

As it turns out, 1215 was an important year law-wise, because it’s also the year in which Magna Carta was signed. Magna Carta was essentially a peace treaty between King John and a bunch of unhappy barons who’d been at war with him. The charter limited the king’s powers in several respects, and it guaranteed trial by jury—at least for noblemen.

Stripped of the ability to use trial by ordeal and with Magna Carta as a model, the English legal system turned to those presenting juries as a handy way to determine guilt. These new kinds of juries were called petit juries—small juries—and over the years they were invested with a surprising amount of power, including  jury nullification. That’s the power to essentially ignore the law and acquit an guilty defendant when doing so is just.

English colonists brought their legal system to America. And we ran with the idea of juries, maybe due in part to our populist ideals. Today, the US uses juries more extensively than any country in the world—including the UK, which has scaled back on them in several respects. Most countries don’t use juries at all, leaving it to the judge to determine guilt. Here in the US, the laws and rules regarding juries have evolved as well, but in essence juries are an institution that has been in place for a millennium or so.

Warranted: the exclusionary rule

Today is the final post on warrants—at least for now.

I’ll start with a story. In 1957, Cleveland police were looking for evidence of a bombing, and although Dollree Mapp wasn’t the suspect, they believed she might have evidence in her home. But she refused to let them in. So they returned a few hours later, waving a paper and claiming it was a search warrant. She snatched the paper and shoved it down the front of her dress; they wrestled her and took the paper back. With Mapp in cuffs, they proceeded to search her house. Inside a trunk in the basement they found pornographic books and pictures (the property, Mapp said, of a previous tenant). They arrested Mapp and prosecuted her for possession of illegal pornography. No warrant was ever produced at trial. It’s pretty clear none ever existed.

Mapp appealed her conviction all the way to the Supreme Court, arguing that because police did not have a warrant, the search violated her 4th Amendment rights. Therefore, she said, the evidence should be thrown out of court and her conviction overturned.

In Mapp v. Ohio, SCOTUS agreed. They articulated the exclusionary rule, which says that illegally obtained evidence can’t be used in court. This is a powerful rule because it means that sometimes people we know are guilty will still go free because the cops screwed up. But, the Court said, the rule was the only realistic way to deter police misconduct and protect constitutional rights.

As you might imagine, the exclusionary rule has been unpopular among a lot of people. Over the years, SCOTUS has carved out a number of exceptions to the rule. But the heart of the rule remains intact.

And this concludes our whirlwind tour of warrants!


Warranted: arrest warrants

Last week we discussed the general requirements for obtaining a warrant. This week we’re getting more specific—we’re talking about arrest warrants.

Just to review, an arrest is a type of seizure, and therefore the requirements of the 4th Amendment apply. But even though that amendment implies you need a warrant, a long series of cases says not so much. In fact, police never need a warrant to make an arrest if the person is suspected of a felony. They also don’t need a warrant to arrest someone who’s committed a misdemeanor in their presence. So the only time they must have a warrant is for misdemeanors that the police didn’t witness. This constitutes a pretty small proportion of arrests, so in practice, arrest warrants are rarely required.

However, even if police don’t have to get a warrant prior to making an arrest, they might choose to do so. Why? Well, a warrant offers some potential benefits:

  1. It gets the suspect’s name into the system. This way, if the suspect is later stopped for something else—perhaps something small—police can easily tell whether he’s wanted for another crime. One of my students once failed to pay a speeding ticket or appear in court, so a warrant for failure to appear was issued in his name. Later he and a buddy decided to go swimming in an apartment pool after hours. Someone complained, cops came, and when they checked Steve’s name, there he was. He ended up spending the 4th of July weekend in the local jail.
  2. With an arrest warrant, the police can enter any property where the suspect is, without getting a search warrant. Absent an arrest warrant or search warrant, police can’t enter private property unless they are in hot pursuit of a fleeing felon (that is, the crime has just occurred) or some other emergency exists.
  3. Before getting an arrest warrant, a cop has to convince a magistrate or judge that there’s probable cause that the suspect committed a crime. This provides somewhat of a guarantee that the arrest won’t later be thrown out (by a judge) for insufficient evidence.

Even when a warrantless arrest is made, police must still have probable cause. An arrest made with less than probable cause is illegal and will be invalidated, ending the case.

Incidentally, want a plot bunny? Alma invites her friend Brad over to her house, unaware that Brad has an active arrest warrant out in his name. The cops see Brad enter her house and barge right on in after him. Too bad for Brad. But also too bad for Alma, who’s been packaging heroin in her living room. When the cops see the drugs, they arrest her too.


Warranted: general requirements

For the next few weeks we’ll be tackling a big subject: warrants. This week we’ll talk about general warrant requirements, next week is arrest warrants, and the following week the focus will be on search warrants. Finally, we’ll discuss what happens if police violate the warrant requirements.

The part of the US Constitution that applies here is the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Okay, fine. So the amendment says that we have the right to be free from unreasonable searches and seizures. Great. And if the police want to get a warrant, they need probable cause.

So first off, what’s a search or seizure? Well, a search is government intrusion into a place or thing in which the owner has a reasonable expectation of privacy. If a cop overhears my phone conversation while I’m sitting at the adjacent table in Starbucks, that’s not a search because I can’t reasonably expect privacy. But if she grabs my phone and starts scrolling through my texts, that is probably a search.

A seizure is a meaningful interference with property or with a person’s freedom. If a cop tows my car away, that’s a seizure. If she slaps cuffs on me and hauls me off to jail? Also a seizure.

Great. But, um, what’s probable cause? The courts have been reluctant to define it too precisely, but basically it means there’s enough information that a reasonable person could deduce that evidence or contraband is likely in a particular location or that a specific person has committed a crime. It’s more than a hunch, more even than a good guess, but it’s far less than beyond a reasonable doubt, which is the standard of proof required for criminal convictions.

In simplest terms, the 4th Amendment says that in order to search or seize property or arrest someone, a police officer must have probable cause. And she must present her evidence in a sworn statement to a neutral party—a magistrate or judge—who will determine if probable cause does indeed exist. Furthermore, the warrant has to be specific about the place that’s being searched and what’s being searched for, or the identity of the person who can be arrested.

Now as it turns out, the use of warrants is more complicated than that. We’ll get to some particulars in the next two weeks.

Another thing to note now, however, is the procedure for obtaining warrants. The cop can show up in court. But almost all jurisdictions allow phone warrants as well, in which the transaction occurs via phone instead of in person. This is helpful if time is of the essence, e.g., the evidence is likely to disappear.


The case was going badly for the prosecutor. One of her star witnesses had disappeared days before the trial began, another fell apart under cross-examination and retracted most of his original statements, and the primary investigating police officer alienated the jury by appearing arrogant. But just as the prosecutor was ready to give up, screams reverberated from outside the courtroom. A moment later, a bailiff came rushing inside. “Your Honor! Your Honor!” the bailiff shouted. “A spaceship has landed three blocks away and aliens are everywhere!”

Smiling triumphantly and without missing a beat, the prosecutor leapt to her feet. “Your Honor? I move for a mistrial!”

What is a mistrial? Most simply, it’s the cancelation of a trial in progress. Either side can move for a mistrial, and the judge can declare one at any point up until the jury renders a verdict.

Mistrials are rare. They result in huge additional expenditures, plus they represent wasted time for everyone involved. If the defendant has been kept in jail pending her trial, a mistrial means she’s going to spend even more time locked up. For these reasons, the system strongly discourages mistrials. But they do occur.

What could cause a mistrial? Well, rarely is it an alien invasion. But that could be a reason. Anything that makes it impossible for a fair trial to proceed could be cause for a mistrial. Potential causes include:

  • Natural disasters or other serious, long-term emergencies
  • Death of someone critical to the case, such as one of the lawyers or a juror
  • Juror misconduct
  • Serious errors in matters such as choosing the jury or admitting evidence
  • Errors that are fundamentally prejudicial to the defendant, such as the prosecutor making statements she shouldn’t
  • Jurors’ inability to reach a verdict

When I googled for recent mistrials, I found some interesting cases.

  • At a murder trial in Iowa, the prosecutor improperly informed a potential juror that Iowa does not have the death penalty.
  • At a trial in Texas for improperly carrying a weapon, a juror was assaulted (by someone unrelated to the case) outside the courthouse and was too distraught to continue.
  • In a robbery case in Virginia, technical errors meant people in the hallway—including witnesses—could hear testimony going on in the courtroom. Also, one juror kept falling asleep.
  • In a corruption case against the former LA County Sheriff, the jury was deadlocked after four days of deliberations.
  • In a California homicide case, a juror disregarded instructions and looked up the legal definitions of specific crimes.
  • In a Colorado homicide case, the prosecutor withheld evidence of a police officer’s misconduct.
  • In Kansas, a local news station aired footage of potential jurors in a murder case. Interestingly, after the mistrial was declared, a change of venue was also granted.

When a mistrial is granted, the system basically pretends as if the trial never happened. Double jeopardy doesn’t prohibit the defendant from being retried. The prosecutor can choose to drop the case entirely, but most often, a new trial will start from scratch.


Jurisdiction is… interesting. If you watch cop shows or legal dramas, it’s a term you’ve heard thrown around, yet few people have a firm handle on what it means. Today I’m going to fix that.

At its most basic level, jurisdiction simply refers to the legal authority to handle a particular case. Law enforcement agencies have particular jurisdictions, as do courts. Technically, jurisdiction refers to a particular subject matter—that is, whether an agency has power to deal with a particular type of case. A small claims court does not have jurisdiction to hear a murder case. Your local police department does not have jurisdiction to make arrests for federal immigration offenses.

In practice, however, we often use jurisdiction in a geographic sense as well. The LA County Sheriff’s Department has jurisdiction in LA County—and not, say, in Kern County.

Jurisdiction is a complicated issue in the US because our legal system is fragmented. While most countries have a single (federal) court system and a single (federal) law enforcement agency, we don’t. We have state and federal courts, some of them with quite specific areas of authority (such as military cases or bankruptcy cases). And we have many thousands of police agencies at local, state, and federal levels.

Jurisdictions can overlap. Imagine I kidnap someone in Wyoming and drag him to my hometown, only to be caught on the nearby university campus. In that case, dozens of law enforcement agencies might be involved, including the FBI (a federal agency) and many state and local police departments. Just from my own area, my city police, the Highway Patrol, and the campus police might be there (the latter two are both state agencies). It can be confusing! And while agencies very frequently cooperate with one another, sometimes friction or rivalry may exist.

The takeaway for you as an author? If a police department or court is dealing with a case in your book, make sure they have proper jurisdiction. That may require research to determine who handles what, but you definitely don’t want to get it wrong.



What lawyers really do

Word association time! When I say lawyer, what image comes to mind? Probably someone in a suit, standing in a courtroom and making passionate arguments. And sure, some lawyers do that. In reality, however, the vast bulk of attorneys’ work in criminal cases—whether the lawyers are defense attorneys or prosecutors—takes place outside the courtroom.

The United Kingdom and some other common law countries have two kinds of lawyers: barristers act as advocates in court, whereas solicitors do most of the out-of-court work. We don’t make this distinction in the US, however, and even the UK has blurred the lines in recent years.

Only about 5% of criminal cases ever get to trial. In the other cases, the charges are dropped, the defendant pleads guilty, or a plea bargain is reached. That means that in 95% of criminal cases, the lawyers will never step foot in court.

But of course that doesn’t mean they aren’t busy. They’re leading investigations into the evidence; interviewing the defendant, victim, and/or witnesses; doing research into the law; filing paperwork such as pretrial motions; and discussing the case with the opposing side. Depending on the complexity of the case, these activities will last months or even years. And if the case does end up in court, while the trial is going on the lawyers will continue to do a lot of work behind the scenes.

I know trials make for exciting drama on the screen and in our pages. It’s a bit more challenging to draw excitement out of a scene in which someone’s drafting a motion or memorandum. (“Heart racing, she paused with her finger hovering over the mouse button. Should she click Search now, or were her Boolean terms too broad?”) But if you’re going for accuracy in your depiction of a lawyer in a criminal case, you should at least acknowledge the amount of effort going on outside the courtroom.