It is my pleasure to introduce my good friend Virna DePaul as my guest today. If you have any questions at all, fire away! And thank you so much Virna for taking time for us today out of your very busy schedule. Oh, and Virna will be giving away a $10 BN gift card to a random commenter on this post.
Now a little bit about Virna:
Virna has been a criminal appellate prosecutor with the California Attorney General’s Office since 1996. Before that, she spent a year in the trenches handling misdemeanor trials as a Deputy District Attorney. Her first romantic suspense manuscript, Trial By Fire, placed second in the 2007 Smokey Mountain Laurie’s single title category (w/a Nina Meyers) and landed Virna her dream agent, Kimberly Whalen. Virna’s current wip explores repressed memories, sexual fetishes, and crimes of passion. She juggles her job and pursuit of publication with the support of many friends and the four men in her life (ages 2 to 38). www.virnadepaul.com
And heeeeeeerrrrre’s Virna!
First, a big thank you to Karin. I’m so thrilled to be a guest blogger today. Karin asked me to write a little bit about criminal procedure and the difference between criminal and civil law. I hope to give a down and dirty guide that all you writers can follow when trying to incorporate a criminal procedure plot into your stories. And I hope to do it in a way that won’t bore you to tears. But we are talking the law here, so I can only do so much. (I do believe the criminal procedure process has many similarities to the writer’s journey, but that’s another blog….)
When I say I’m a lawyer for the California Department of Justice, most people are baffled. They often confuse me with being a Deputy District Attorney, which is understandable. Both are prosecutors, after all. But there are many key differences. And it all has to do with what level and stage of prosecution you are dealing with.
Most true crime and cop shows, and most mystery/suspense novels for that matter, deal almost exclusively with a prosecution at the pretrial and/or trial stages. These are the stages that are most familiar to readers, and they are the easiest to make “sexy” since they most immediately follow the commission of a crime. But exclusive use of these criminal stages in your writing can be limiting. By having a good working knowledge of the criminal procedure process, you can definitely expand your story lines and your characterization. You can identify all the key players in the prosecution (and defense) with ease. And you can hopefully avoid the inaccuracies that can pull a reader out of a story, even if it’s because something “just doesn’t sound right.”
To illustrate what I mean, I’m going to tell you the key questions you need to ask yourself during the initial stages of your plotting (or pantsing, if that’s more accurate). This information is based on my knowledge of California law and research about federal law, but it is certainly not infallible or exhaustive. (Please do not rely on this blog for legal advice.)
1. The first obvious question to ask is what crime was committed and where was it committed. This will determine whether it is a state or federal prosecution, and it will tell you what agencies were/are initially in charge of investigating and prosecuting the crime.
2. The next question is what stage of prosecution is at issue? The stages are pretrial, trial, sentencing, appeal or writ, and corrections.
3. The next question is, based on the stage of the prosecution, have the investigating and prosecuting agencies (identified in step 1) changed?
4. The final question is what criminal issues are presented within each stage of the prosecution? Some familiar ones are Miranda violations, motions to suppress illegally obtained evidence, or jury misconduct.
Now, let’s walk through these steps using the story line from my work in progress.
Ten years ago, my sixteen-year-old heroine disobeyed her mother to see a boy four years older than her. She returned home to find her mother had been brutally murdered by a homeless man (Jackson) that the heroine had befriended. At the beginning of the book, the hero, the same boy (now man) who kissed the heroine ten years earlier, returns to Sacramento and is assigned to reopen the investigation into her mother’s death.
Some questions you may ask yourself are why and how the hero is able to reopen the case? What type of law enforcement officer is he? And what prosecutorial agency has asked him to reopen the case? To answer these questions, let’s go through the four steps I outlined above.
Q: What crime has the defendant committed and where?
A: Murder in Sacramento.
Q: What investigative agency initially responded to the crime and investigated it?
A. The Sacramento Police Department.
Q: Was this a state or federal prosecution, and what prosecutorial agency began the prosecution?
A: State, as represented by the County District Attorney’s Office.
While none of this information probably comes as a big surprise, the reason I’m giving it is to point out that, while this is a typical scenario, it is not the only one.
Law Enforcement Involvement:
The local city police department will almost always be the first response to a crime scene. However, a county Sheriff’s Department will respond if the crime is committed in an unincorporated area of the county, or if it involves a crime committed in a county jail. Once the defendant is charged with the crime, the prosecuting agency may, in addition to local police, use its own investigative officers. For most crimes, D.A.s would use D.A. investigators. For other state prosecutions, the California Department of Justice would use Special Agents from the Department of Law Enforcement. And for federal prosecutions, the United States Attorney’s Office can use investigators from federal agencies such as the Federal Bureau of Investigation or Drug Enforcement Administration. The authority of state investigators and prosecutors is generally limited to the state in which they work, while federal investigators and prosecutors can compel witnesses and conduct investigations anywhere in the nation or even in another country.
Why this is a state prosecution?
Violations of the California Penal Code are considered crimes against the state of California. Crimes are classified as infractions (petty offenses for which there is never any jail or prison time imposed), misdemeanors (minor offenses for which there may be jail time imposed) and felonies (serious offenses for which prison time can be imposed). There is also a category called “wobblers,” which are crimes that can be charged as either a misdemeanor or a felony. Persons convicted of felonies can have their rights limited. For example, they can lose their right to vote, serve on juries, possess weapons, or serve in the military. They may also have their sentences enhanced if they are convicted of additional crimes in the future.
Generally, crimes are initially prosecuted by a county’s District Attorney’s Office, which operates under the authority of the state’s chief prosecuting officer, the Attorney General. Criminal defense will be provided by either the county Public Defender’s Office or privately retained counsel.
The District Attorney’s Office, however, is not the only prosecuting agency to handle trials. The DOJ/California Attorney General’s Office handles prosecutions that have wider impact on the State. Such crimes can include white collar crime, large scale drug operations, gaming or environmental crimes, or unfair and deceptive trade practices and unfair methods of competition.
Also, prosecutors with the DOJ/CA Attorney General’s Office (called Deputy Attorney Generals) may step in and prosecute local cases for a district attorney’s office. This occurs where the D.A. has a conflict (for example, where the D.A.’s son is arrested for a d.u.i), where a small county’s district attorney’s office does not have the man power to prosecute a really big case, or where the D.A. decides not to prosecute a case and the Attorney General feels the case is worth prosecuting.
In addition, once a defendant is convicted at trial, his appeal (whether made in state or federal court [see step 3]), is handled by the DOJ/California Attorney’s Office. Again, defendants on appeal will be represented by court-appointed or private counsel.
Certain crimes are crimes against the federal government. Such crimes can include terrorism, drugs, firearms, environmental crimes, child pornography, interstate domestic violence, bank robberies, and smuggling. The key is that the crime has significance to the nation or is not isolated to just one state. A federal crime also occurs where the crime took place on federal property or in a federal building (for example, a federal post office). Federal prosecutions are prosecuted by a division of the United States Attorney’s Office. Defendants may be represented by the Federal Defender’s Office or private counsel.
Note: The same crime can be prosecuted in both state and federal court without violating double jeopardy principles.
Q: What stage of the prosecution is at issue?
A: In my story, Jackson is at the appellate stage. He has sought review in the federal court via a writ of habeas corpus. Ten years after he has been convicted of the crime, the federal court has granted Jackson a federal evidentiary hearing.
EXPLANATION OF CRIMINAL PROCESS:
The Arrest: This can occur at the crime scene or someplace else via an arrest warrant. In state prosecutions, the arrest generally comes before the filing of the complaint. In federal prosecutions, it typically comes after a grand jury indictment is filed. All arrests must be based on probable cause (“reasonable grounds to believe that the defendant has committed a crime”).
Evaluation of the case by the prosecuting agency: After arrest, the prosecuting agency will review police reports and, if necessary, obtain further evidence (witness statements, test physical evidence) to determine what crimes have been committed, if any. If there is insufficient evidence, the charges may be downgraded or dropped altogether.
Charging Document: In state court, the prosecution starts with the filing of a complaint. The defendant is then entitled to a preliminary hearing, at which time the prosecution must prove there is sufficient cause to hold the defendant over. If the court finds the prosecution has done this, an information is filed. In federal prosecutions, criminal prosecutions are normally started with the filing of the complaint and information, and then by a grand jury indictment. A grand jury is a secret panel of 23 people to whom an Assistant United States Attorney and a federal agent present evidence of a federal crime. Neither the defendant nor his attorney are allowed to be present. However, federal grand juries can compel witnesses to testify and submit documents to them. An indictment is issued if the grand jury finds probable cause of a crime.
The Bail Hearing: This can either be part of the initial hearing or a separate one. The court determines whether the defendant has to post bail or can be released on his or her own recognizance.
The Arraignment: Once a complaint, indictment or information has been filed with the trial court, the defendant is arraigned. This is where the defendant is formally notified of the charges in open court and where the defendant pleads guilty or not guilty. (Defendants almost always plead not guilty during arraignment, even if they later plan to plead guilty after a deal has been offered.) A defendant in California is entitled to be arraigned within 48 hours of his arrest. An in-custody defendant is entitled to a preliminary hearing within 10 days of his initial arraignment. And he is entitled to a trial within 30 to 60 days of his Superior Court arraignment (after prelim) â€“ depending on whether he is charged with a misdemeanor or felony and whether he is in custody. Of course, defendants can waive their rights to these time deadlines, which they will usually do to have more time to prepare their case.
Plea Negotiations: In many cases, the prosecutor and a defendant’s lawyer will negotiate a plea, also known as plea bargaining. Usually, the prosecutor offers to drop certain charges or agree to a reduced sentence in exchange for a guilty plea.
Pre-trial Motions: Prior to trial, defense attorneys can make a variety of motions. The most common are motions to dismiss for lack of evidence that a crime has been committed and motions to suppress illegally obtained evidence (i.e., evidence obtained without a warrant or from an illegal search).
If a plea agreement is not reached, the proceedings move toward the trial stage. Defendants have a constitutional right to a jury trial, but may choose to waive it in favor of a trial by a judge (bench trial). A jury is a sworn body of 12 persons who can issue a verdict of guilt or acquittal by a unanimous verdict. If the jury cannot reach a unanimous verdict, a mistrial results. The prosecution can decide whether to refile charges and try again. When the jury reaches a verdict, their finding is read to the defendant in open court. In state prosecutions, the judge is a county superior court judge. In federal prosecutions, it is a district court judge.
Presentence Investigation and Reports: Once the defendant is convicted, the court usually asks for reports on the defendant’s family, medical and criminal background. In state prosecutions, this is provided by the probation department, who identifies mitigating and aggravating factors, and gives a recommended sentence. The judge considers all this evidence to determine if the defendant should get the middle term sentence (this is the default sentence unless mitigating or aggravating factors are found), or the low or high term.
Unless the defendant has plea bargained for a sentence, he will normally be sentenced to the term of imprisonment specified in the Penal Code. In some jurisdictions the sentence is decided by the jury, particularly for capital offenses. In California death penalty cases, the jury first determines whether defendant is guilty and if the charged “special circumstance” (which makes him eligible for the death penalty) has been proven. In a separate penalty phases, it then decides whether to give him life without the possibility of parole or death.
Appeals: In California cases, every defendant convicted of a felony is entitled to appeal his sentence with court-appointed counsel (if he can’t afford his own). The appeal starts with the filing of a Notice of Appeal. The primary court which rules on appeals is the state district courts. The defendant can then seek review from the California Supreme Court. In capital cases, every defendant gets an automatic appeal to the California Supreme Court. When a defendant appeals, he is arguing that some error or misconduct prevented him from having a fair or reliable trial or sentence. The defendant may only raise issues that are reflected within the four corners of the appellate record. So if the court didn’t know about it or if it is not reflected in the record, it can’t be raised.
Writs: Once his state appeal has been denied, the defendant may file a writ of habeas corpus with the federal court. A writ of habeas corpus differs from a state appeal because the defendant may raise issues that go outside of the trial record. In other words, he can claim that error occurred outside of the trial proceedings, that new evidence has been discovered, or that his federal rights were otherwise violated. If the federal court determines the defendant may be able produce evidence to prove his claims, it may grant an evidentiary hearing. A defendant is not entitled to court-appointed counsel in federal habeas corpus proceedings. In my story, the federal court granted Jackson’s motion for evidentiary hearing.
This is when the defendant serves his time. This can be done either in a city or county jail or a state prison, depending on the length of time imposed in the sentencing hearing. Obviously for federal crimes there are federal prisons.
Q: Has the initial law enforcement or prosecutorial agency changed?
A: In my story, because Jackson’s state appeal was rejected and he is now seeking federal review, his case is in the hands of the DOJ/California Attorney General’s Office. (Even though the case is in federal court, the CA Attorney General’s Office represents the CA prison wardens, who are the named defendants in federal writs/appeals.) As stated above, the law enforcement agency that investigates cases for the California Attorney General’s Office is the California Department of Law Enforcement. Investigating officers for DLE are Special Agents and are sworn law enforcement.
How the state and federal agencies could work together:
So for a crime that violates both state and federal law, local police might make the arrest, charges could be filed in the county D.A.’s office, after the defendant is convicted he could file an appeal with the CA Attorney General’s Office, and then after his conviction is affirmed, the United States Attorney’s Office could seek to prosecute him on federal charges.
Q: What legal issues are raised?
A: In my case, Jackson is claiming he is actually innocent and he is requesting the federal court to consider evidence that wasn’t available at the time of trial, specifically DNA evidence.
Types of legal issues:
Most commonly, legal issues center around the legality of police action (did they legally enter a home or conduct a search), or the admissibility of certain evidence (even though the defendant confessed to the crime, is that confession excluded because he was not read his Miranda rights). It can also center around jury misconduct claims, or claims that the defendant is incompetent or was legally insane at the time of the crime.
CRIMINAL VS. CIVIL LAW
Finally, I wanted to talk briefly about the difference between criminal and civil trials. Civil law involves private law suits between two or more private entities. In criminal law, the prosecution is initiated by the state or federal government through the prosecutor. It is not initiated by the victim (which means the victim has no control over whether charges can be dropped). The other major difference? The burden of proof is different. In a criminal prosecution, because personal liberty is involved, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. In a civil trial, the plaintiff must prove her case by a “preponderance of the evidence,” which is a “more likely than not” standard. This means liability must be proved by at least a 51% probability.
So, I hope I’ve succeeded in showing you that your criminal procedure storyline does not have to be limited to D.A.s, local police officers, trials and motions to suppress (although I must admit that is exactly what my first ms was about). I also hope I’ve given you some details that will help you create a suspenseful story with accuracy and realism.
Are you writing a story with a criminal procedure plot line? If so, what stage in the prosecution are your characters dealing with? Can you think of a book or movie where the criminal plot or proceedings seemed unbelievable to you?
Wow! Thank you, Virna! I’m printing this out. Don’t forget Write Lifers, feel free to ask Virna questions.