Three finalists have been announced for the 2012 Harper Lee Prize for Legal Fiction. The three finalists are (click picture to buy book; descriptions are from author websites):
* Michael Connelly, The Fifth Witness In tough times, crime is one of the few things that still pays. But if defense attorney Mickey Haller was expecting an uptick in business during the economic downturn, the reality is a different story. Even people needing legal representation to keep them out of jail are having to make cutbacks, it seems. In fact, the most significant part of Mickey’s business right now is not about keeping clients out of jail but about keeping roofs over their heads as the foreclosure boom hits thousands of people who were granted unrealistic mortgages in the good times and now face being kicked to the curb in the bad times.
Lisa Trammel has been a client of Mickey’s for eight months—hers was his very first foreclosure case, in fact—and although so far he’s managed to stop the bank from taking her house, the strain and sense of injustice have taken a toll. The bank recently got a restraining order to prevent her from protesting against its practices. Now, a high-level bank employee, Mitchell Bondurant, has been found dead in the bank’s parking lot, and Lisa is about to be indicted for murder. For Mickey, it’s back to what he does best on the biggest stage of all, but if he thought defending Lisa Trammel was going to be a walk in the park, he’d be wrong. Not only is he about to learn some startling truths about his client, but also about himself, and by the time the verdict is in, Mickey’s whole world will have been turned upside down.
* Robert Dugoni, Murder One A year after tragedy, attorney David Sloane has returned to work full time. At a black-tie dinner, he reconnects with Barclay Reid, opposing counsel in Sloane's most prominent case. Barclay is suffering from her own personal tragedy after the death of her teenage daughter from a drug overdose. In the aftermath, Barclay has begun an intense crusade against the Russian drug traffickers she holds responsible for her daughter's death, pursuing them with a righteousness that matches Sloane's own zeal for justice. Sloane finds himself drawn to this woman, despite their adversarial past.
When Barclay's crusade stalls and the Russian drug dealer turns up dead, she stands accused of murder, and Sloane is her chosen defender. Amidst the swirling media frenzy, in his first criminal case, Sloane finds himself once again in harm's way, while mounting evidence suggests Barclay is a woman with many secrets. And she may not be quite as innocent—or as in love with Sloane as she purports to be.
* David Ellis, Breach of Trust In this second installment of the Jason Kolarich series, Jason investigates the murder of a key witness in a criminal case that Jason tried. Jason had forced the witness to testify and believes that this led to the witness' murder. When the evidence leads to an obscure agency in state government, guilt-stricken Jason goes to work for the agency to dig deeper. Before he knows it, Jason finds himself square in the middle of a high-level conspiracy of fraud and corruption—as well as a covert federal investigation into these crimes. He is confronted by agents of the FBI, who force Jason to work undercover to root out the criminal activity. Jason finds himself with two roles, solving the murder of the witness and helping put away top state officials—all the way to the governor’s door. But are the two things related? And how far must Jason go to solve the murder and take down a corrupt governor? This is the 2nd Annual Harper Lee Prize. The prize is given each year to a fiction book published in the preceding year that best exemplifies the role of lawyers in society. The winner of this year’s Harper Lee Prize for Legal Fiction will be announced in August 2012. Vote for your pick for this year’s best legal novel at The ABA Journal. And weigh in below about your favorites! In 2011, John Grisham received the very first Harper Lee Prize for Legal Fiction for his book, The Confession. I haven’t read this year’s nominees yet, but I really enjoyed The Confession!
What is required to prove a criminal defendant is legally insane? Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane. It is important to note that the insanity defense is rarely used and has even been abolished in some states. Insanity is generally considered an "excuse" to committing a crime. An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant. Insanity is also considered to be an "affirmative defense." An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it. For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true. Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question. Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence. In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime. The focus of determining a defendant's sanity is his mental condition at the time of the crime. (This is one way the test for insanity is different than the test for competence to stand trial. For a discussion of the differences between sanity and competency, check out this prior post.) To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime. Generally, the mental disease or defect may be permanent or temporary. The M'Naghten TestThe defendant's mental condition must satisfy the legal standard for insanity. The M'Naghten test is traditionally the most commonly used test to determine insanity. Under the M'Naghten test, a person is considered legally insane if: 1. at the time of the crime 2. he suffered from a defect of reason that resulted in him either a. not knowing the nature and quality of the act he performed, or b. not knowing his act was wrong. A defendant knows the nature of his act if he knows what act he is performing. He knows the quality of his act if he understands the consequences that flow from his act. For example, a woman is charged with murdering her baby by drowning. To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning. Alternately, the defendant can show she did not know that her act was wrong. The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state. In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong. This would be an example of a moral wrong. Insane DelusionsIf someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion. If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense. If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane. For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen. The victim pointed the pen at the defendant, who believed he was about to be shot. The defendant pulled out a gun and shot the victim. The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense. However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them. Irresistible Impulse TestThe irresistible impulse test is sometimes used in conjunction with the M'Naghten test. Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions. It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions. (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.) Model Penal Code TestAnother test for insanity is set out by the Model Penal Code. Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to: 1. understand the criminality or wrongfulness of his conduct, or 2. to conform his conduct to the law. This is sometimes called the "policeman at the elbow test." In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law. A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses. Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime. To understand the differences between insanity and competency to stand trial, click here. Claim your free E-book on The Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.
When it comes to investigating and prosecuting crime, federal and state agencies are parts of separate governments. Each state is also separate from all the other states. These are called jurisdictions.
The federal government is limited in what crimes it is allowed to investigate and prosecute. There must be federal jurisdiction before the federal government can get involved. Most street crimes, like murder, do not involve federal jurisdiction.
The federal government may have jurisdiction if an otherwise state crime occurs on federal property, or involves federal officials, or crosses state lines.
The states and federal government also have separate law enforcement and prosecutorial agencies. At the federal level, the FBI and U.S. Attorney's Office are primarily involved in investigating and prosecuting federal crimes.
Each state has state law enforcement officers, as well as local city police departments and county sheriff's departments. Most states also have state attorneys general, district attorneys, and city attorneys who prosecute state crimes.
Often in movies and TV shows, the local police department will get offended when the FBI comes into their jurisdiction. The show "Criminal Minds" handles this issue regularly.
Criminal Minds follows a team of FBI profilers who help track and catch serial killers. Most episodes have the team called in by a local police department that needs the team's expertise on recent crimes.
The agent in charge of the Criminal Minds profiling team often stresses the importance of being invited by the local police department and working cooperatively with them once there. This is because the FBI generally has no jurisdiction to investigate local murders, even multiple murders. The FBI, as a federal agency, has limited jurisdiction to investigate federal crimes.
The specialized profiling team on Criminal Minds, therefore, would generally analyze evidence from their unique perspective and help educate the local police department about the person they are looking for.
One episode of Criminal Minds (Season 2, ep. 22 “Legacy”), helps show this concept and demonstrates the difference between state and federal jurisdictions.
Detective McGee from the Kansas City Police Department contacts the Criminal Minds team for help when he believes at least 63 homeless people have disappeared. Because these people have not turned up dead and no one has reported them missing, however, there are no open files and no active local investigation into the matter.
The following conversation takes place about the FBI team's ability to work on the case: | AGENT HOTCHNER: Simply being gone isn’t a federal issue.
AGENT GIDEON: We’re gonna need an official invitation into your jurisdiction.
DETECTIVE MCGEE: An official?
AGENT HOTCHNER: Police chief, chief of detectives. It has to come down from the chain of command. We have no authority to look into this.
DETECTIVE MCGEE: Um, I don’t know that I can do that.
AGENT HOTCHNER: Unless we’re officially asked, we can’t help you.
AGENT HOTCHNER: Jurisdictional issues aren’t open for debate. Sorry. It’s out of our hands.
AGENT JAREAU: Hotch, there could be 63 victims here.
AGENT HOTCHNER: Well, I suppose you and I could go back with the detective and talk to his commanders. Try to impress upon them the serious implications.
DETECTIVE MCGEE: Thank you.
AGENT HOTCHNER: If we get an invitation, we could send for the rest of you. I just don’t want to give the appearance that we’re running over them.
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Upon unofficially reviewing some of the evidence and recognizing a potentially serious threat, Agent Prentiss expresses frustration at the team’s hands being tied because of jurisdictional concerns. Agent Morgan reminds her, “If we don’t follow the city’s jurisdiction, no one’s ever going to ask us for help.” These scenes demonstrate how delicate the balance of power between different law enforcement agencies can be. It also exemplifies the limited role of the federal government when it comes to investigating and prosecuting crime. Unless there is some federal aspect of the case that gives the feds jurisdiction, they have no authority. Later in the episode, when Agent Hotchner meets with the detective’s commander, the commander declines the FBI’s help, claiming there is no case to investigate. He does not consider the unexplained and unreported disappearance of several homeless people a crime. It is then discovered that a taunting letter from the potential suspect was mailed to Detective McGee from Kansas City, Missouri, whereas the people went missing from Kansas City, Kansas. This interstate communication gave the FBI jurisdiction to investigate the crimes on their own without invitation from the local authorities. In this scenario, both the federal government and the local authorities had jurisdiction to investigate the same crimes. This is called concurrent jurisdiction. Bank robbery and drug sales are common areas of concurrent jurisdiction, where both the federal and state governments have jurisdiction. And since the federal and state governments are separate governments, each could potentially prosecute the suspect once he was caught. Typically, however, someone is only prosecuted by either the state or the federal government, even where both have jurisdiction. As a side note, the U.S. Constitution’s Double Jeopardy Clause does not forbid both the federal and state governments from prosecuting the same person for the same crime because they are separate sovereigns. Click here to receive a free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
There are two basic requirements to defining activity as a crime. 1) The activity must be forbidden by law (the law may also require something to be done). 2) There must be some penalty attached to conducting the activity. In every state, the legislatures have enacted criminal codes. A state's criminal code is the primary place to determine what activities are crimes. However, crimes may be defined in other places than the criminal code. For example, in California, some crimes are contained in the Vehicle Code. Federal crimes have been enacted and defined by Congress. Again, however, some federal crimes are not contained in the United States Criminal Code. Tax crimes, for example, are contained in the Internal Revenue Code. There is therefore no one place to find all the crimes of a particular jurisdiction. Also, many criminal laws have been interpreted by the courts. Therefore, even a reading of a state's criminal codes will not give someone all the answers about how a crime is defined and what activity falls within that definition. That is one of the many reasons a criminal defendant is entitled to a lawyer. Someone who is uneducated in the law will have a very difficult time interpreting and understanding all the details that make up a law. Also, every crime that is defined in the law has two basic components: *an act, and * a mental state In law, the Latin terms are used: actus reas (act) and mens rea (mental state). That concept, and specifically the contours of a criminal state of mind, is discussed further here. For more information like this delivered to your inbox, join The Criminal Law Community. If you are a writer of filmmaker in the crime or legal genres, check out the free eBook: Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
When you are in the criminal justice system or you are writing about the criminal justice system, it is helpful to know what stage of the process you are in. Different things happen at different stages, and you should know where you are at any given time. I have broken down the criminal justice system into 6 basic stages. I will give a brief synopsis of each stage here. I will go into each stage in greater detail in future posts. 1. Crime Stage - This is where the crime occurs. Crimes may be instantaneous, like a shooting, or may be ongoing, like a sophisticated ponzi scheme. 2. Investigation Stage - This can occur simultaneously with an ongoing crime. In most cases, the investigation phase happens after the crime has been committed. An arrest usually happens during either the investigation phase or charging stage. 3. Charging Stage - After an investigation is complete, a prosecutor must decide whether to bring charges, who to charge, and what crimes to charge. This is an important step because it turns a suspect into a formally charged defendant and triggers certain constitutional rights. 4. Pre-Trial Stage - Once a defendant is charged, the pre-trial stage begins. The defense attorney will review the prosecution's evidence and may bring motions, such as a motion to dismiss or a motion to suppress evidence. Witnesses are interviewed and prepared for trial. 5. Trial Stage - This is where the fun happens. Most trials are in front of juries, although a judge can hear trials too. It's up to the defendant. The prosecution has the burden of proof and will try to introduce evidence to prove the defendant guilty. The defense need not introduce any evidence. 6. Post-Trial Stage - After a defendant has been convicted at trial, there are a slew of things that can happen. Sentencing happens in every case. The defendant may also bring a new trial motion. The defendant can appeal, file a petition for a writ of habeas corpus, or petition for clemency or a pardon. Each of these phases has its own unique challenges, goals, rules, and rights. I will develop each in more detail in future posts. A fictional crime story may take place in one, some, or all of these stages. Whichever stages your story takes place in, it's critical to understand the rules and purposes of those stages. I hope you will find this to be a helpful guide on your journey. In the meantime, make sure to sign up for the FREE eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
It may seem strange, but attempted murder requires that the defendant has the specific intent to kill, whereas murder requires either an intent to kill or a conscious disregard for life. A person can be convicted of murder without intending to kill. (As discussed in depth here, this is the mental state or mens rea of the crime.) This is because an attempt to commit any crime requires that the person specifically intend to commit that crime. You cannot be convicted of attempted robbery if you did not intend to rob. Murder, on the other hand, may be committed when the defendant kills someone with an intent to kill. Or it may be committed when the defendant did something extremely dangerous with the conscious disregard for human life. This is called implied malice. An example of implied malice could be where someone randomly shoots a gun in a place where people might be, if the shooter did not intend to kill anyone. Another example could be driving at a very high rate of speed on a road where the driver knows other people or cars may to be. It is important to note that in most states, for murder to be of the first degree, there must be an intent to kill. A conscious disregard for human life will only support a lesser degree of murder, such as second degree murder in California.
Because murder can be supported by a lesser mental state than attempted murder, this could lead to the strange scenario where someone could be convicted of murder if the victim dies, but could not be convicted of attempted murder if the victim lives.
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The editors of Bloomberg Law posted a poll to rank the top ten greatest quotes from legal movies. They range from funny to moving to inspiring, and come from all kinds of legal movies throughout the years. Here are a few of their top picks in no particular order:
The Firm (Tom Cruise, Jeanne Triplehorn)
“I discovered the law again.”
Erin Brockovich (Julia Roberts, Academy Award Winner)
“I hate lawyers; I just work for them.”
(A common sentiment among legal secretaries and paralegals!)
To Kill a Mockingbird (Gregory Peck, Academy Award Winner)
“Stand up — your father’s passing.”
This is the book and film that inspired generations of lawyers to do what they do.
A Few Good Men (Jack Nicholson, Tom Cruise, Demi Moore)
“You can’t handle the truth!”
(Check out my article about how that scene broke trial procedural rules, but the film maintained its authenticity.)
My Cousin Vinny (Joe Pesci, Marisa Tomei (Academy Award Winner), Ralph Maccio)
“Everything that guy just said is bullshit. Thank you.”
(The best legal comedy in my book! And a great example of how a film can be procedurally realistic and incredibly entertaining.)
The Verdict (Paul Newman)
“You are the law.”
Was your favorite film and line here? If not, please share your favorites! Check out a video compilation of the top ten here.
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Generally, a defendant's or witness's out of court statements are not admissible to prove their truth in court. This is the hearsay rule. There are many exceptions to the hearsay rule, however, including an adoptive admission. An adoptive admission is generally where the defendant, knowing the content of an accusation against him, adopts the truth of the accusation by his words or conduct. This often comes up when the police plant someone in a jail cell with or next to the suspect. The cellmate will ask the suspect questions about the crime. The suspect may simply agree with the cellmate or may boast about his crimes. For example, let's say the defendant makes a statement, "Yeah, man, that guy didn't know who he was messing with." That statement is admissible by itslef as an admission. But it becomes much more powerful as an adoptive admission when it is coupled with the cellmate's question, "You shot the guy because of the way he looked at you?" Sometimes a defendant can adopt an accusation by his silence. If someone is accused of a crime under circumstances where he could hear, understand, and reply to the accusation, and he does not respond, both the accusation and his response (or lack thereof) may be admitted in court. The prosecutor can argue from this that the defendant admitted the crime. Similarly, if the defendant responds to an accusation in a way that is evasive or equivocal, that can be admitted in court. The factors to look for to determine if silence can be admitted as an adoptive admission include: 1. whether the accusation was made in the defendant's presence; 2. whether the defendant heard and understood the accusation; 3. whether, in the circumstances, the defendant naturally would have denied the accusation; and 4. whether the defendant could deny but didn't. The idea behind an adoptive admission by silence is that most people, if falsely accused of a crime, would immediately deny it. When someone does not deny it, that is an indication that the person has a guilty conscience. A person's own words, or under these circumstances, their lack of words, can be powerful evidence against the defendant. On an important note, if there is an indication that the defendant's silence was based on him invoking his right to remain silent under the Fifth Amendment, his silence cannot be used against him. For interesting criminal law concepts sent to your inbox, join the Criminal Law Community.
When done right, crime and legal films can be award magnets. They are common Oscar contenders. Here are the crime and legal movies that have won the Academy Award for Best Picture over the years (click the pictures to check out the ones you haven’t yet seen): No Country for Old Men – 2007
Based on the novel, a man finds two million dollars after a drug deal gone bad and flees a hit man trying to recover the money, with the sheriff close behind.
The Departed – 2006
An Irish Mob boss plants an informant in the Massachusetts State Police while the police send an undercover officer to infiltrate the Mob. Both sides discover the other’s scheme, and each try to learn the other’s identity before his own cover is blown.
Crash – 2005
A story of racial and social tension, several characters' stories interweave during two days in Los Angeles, including a black LAPD detective estranged from his mother, his criminal younger brother and gang associate, the white District Attorney and his irritated and pampered wife, a white racist police officer who disgusts his more idealistic younger partner, and an African American Hollywood director and his wife who must deal with the racist officer.
Chicago – 2002
A musical crime movie about two women convicted of murder trying to save themselves from their death sentences.
The Silence of the Lambs – 1991
(My personal favorite and only the third movie in history to win in all five major Oscar categories – best picture, director, actor, actress, and screenplay.)
Based on the novel, an FBI trainee gains the trust of a brilliant institutionalized serial killer to help the FBI catch another active serial killer.
Kramer vs. Kramer – 1979
Based on the novel, the film depicts a couple’s divorce and its impact on everyone around them.
The Godfather Part II – 1974
This film depicts the rise to power of Vito Corleone and chronicles the Corleon family’s story after the events in The Godfather (see below).
The Sting – 1973
A crime comedy following two professional conmen who try to scam a mob boss.
The Godfather – 1972
Based on the novel, this film tells the story of the Corleone crime family.
The French Connection – 1971
The film tells the story of two real NYPD detectives and revolves around the smuggling of narcotics between France and New York.
Oliver! – 1968
A musical that in part follows the adventures of a band of pick-pockets.
In the Heat of the Night – 1967
Based on a novel of the same name, this is the story of a black Philadelphia police detective (Sydney Poitier) who becomes involved in a murder investigation in a racist small town in Mississippi.
West Side Story – 1961
A musical gang film based on the Broadway musical of the same name.
On the Waterfront – 1954
A Mob film about union violence and corruption among longshoremen. With Marlon Brando.
All the King’s Men – 1949
The rise and fall of a self-taught lawyer who became a corrupt politician and eventually discovers he can’t buy his way out of everything.
Casablanca - 1942
Set in World War II, Casablanca was the portal for Europeans fleeing the Germans and trying to get to the United States. Many famous quotes come from this film, including, "Round up the usual suspects."
Rebecca – 1940
Alfred Hitchcock’s first American film. An intense psychological thriller starring Laurence Olivier.
Mutiny on the Bounty – 1935
Based on the Charles Nordhoff and James Norman Hall novel, the film is a fictional chronicle of the real-life mutiny against Captain Bligh. |
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I have to admit I haven't seen all of these. Which are your favorites? If you're a writer of filmmaker, get your free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
Most people know that when someone commits murder that is willful, deliberate, and premeditated, that is murder in the first degree. That is generally considered the worst kind of murder and carries the highest penalties. But what exactly do "willfulness," "deliberation," and "premeditation" mean? They each have distinct legal definitions that may not be exactly what you think. Willful simply means on purpose. Someone commits murder willfully when he or she intends to kill. He or she kills on purpose. Deliberate means to to carefully weigh the considerations for and against killing, and to choose to kill knowing the consequences. Premedite means to decide to kill before taking action. A murder is premeditated if the killer decides to kill before actually killing. Most people think these words and definitions imply a lengthy and considered decision-making process. However, a person can deliberate and premeditate in a very short amount of time.
Depending on all the circumstances, mere seconds can suffice for someone to arrive at a thought-out -- premeditated and deliberate -- decision to kill.
As discussed in this article explaining states of mind, it can be very difficult to determine a defendant's state of mind (or mens rea). It is almost always determined by circumstantial evidence.
Things like the manner of killing, any planning activity, and motive, can be powerful circumstantial evidence of the killer's state of mind.
Check out this article exploring the difficulties of determining the defendant's state of mind in a case where a middle school student shot another student in the head during class.
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