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.

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.

Many writers who are not lawyers may be intimidated by courts and the law.  They may stray from writing stories or scenes that take them into the courtroom. 

I wrote an article with some easy tips to help overcome any fears or doubts about writing legal drama.  Check out What to Do When Your Character Goes to Court.

For more great tips, sign up for your free Writer's Guide:  Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.

I remember before law school watching legal television shows or movies.  When an attorney would object at trial, the judge would rule, either "sustained," or "overruled."  I had to really concentrate and think it through to figure out what the ruling meant.  Now, it's second-nature to me.  

Here's a quick guide for those who aren't in court everyday:

Sustained:  When an objection is sustained, the judge has determined that is a valid objection.  That means the question was improper under the rules of evidence.  The witness may not answer the question.  (If the witness answers anyway, that answer may be "stricken.") 

An easy way to remember this is Sustained = Stop, as in the witness must stop and not answer the lawyer's prior question.

Overruled:  When an objection is overruled, the judge has determined the objection is invalid.  The question may stand.  The witness must then answer the question.

A shorthand way to remember this is Overruled = Ongoing, as in the witness may continue as if the objection never occurred.  Hope this helps!

For more information about some of the differences between the way things happen in fictionalized legal proceedings and in real life, get my free Writer's Guide:  Top 7 Mistakes Made By Writers of Mystery, Crime and Legal Drama.

Jerry Sandusky, the Penn State coach accused of molesting at least eight young boys is getting off scott-free, at least for now.  Sandusky was indicted on November 4, 2011 of 40 counts related to child molestation.  

Sandusky retired from his Penn State coaching job in 1999 and retired from The Second Mile charity last year.  He has been receiving a pension of almost $60,000 per year since 1999.  That will not be affected by his criminal charges.

When Sandusky first appeared in court, the prosecution asked for $500,000 bail and electronic monitoring.  Bail is intended to ensure a criminal defendant appears in court to face the charges.  Generally, the more serious the charges, the higher the bail.  Also, if a defendant has the resources to pay, he will usually be assessed higher bail.  That will ensure he comes to court instead of fleeing.

Sandusky's bail was set at $100,000, unsecured.  He was not required to be electronically monitored.  The bail amount is lower than the prosecution requested, and is quite low considering the crimes he is accused of and his resources.  Even more surprising is the fact that his bail is unsecured. 

Normally when bail is set, the defendant has to put up the amount of the bail for the court to hold.  Or they may give a bail bondsman 10% of the bail amount, and the bail bondsman ensures the court will receive the rest if the defendant does not show up.  If the defendant does not show up in court, he forfeits all the money he posted. 

When bail is unsecured, however, the defendant does not need to front any money.  He basically promises to pay the bail amount if he does not appear.  However, the defendant is already required to appear, so  it does not seem that an unsecured promise to pay would do much more to ensure a defendant's appearance.

The defendant is already required to appear by law, and a judge can issue an arrest warrant if he fails to appear.  An additional promise to pay an unsecured bail amount does not seem like any more of an incentive to appear. 

Sandusky can therefore continue to live at home, go about his daily life, continue receiving his pension, and need not pay a penny in bail as long as he appears.  That is highly unusual for someone accused of such serious crimes.

It is no wonder that people are crying foul now that they have learned that the judge who set Sandusky's bail has donated money to and volunteered for his charity, The Second Mile.  Judges have a duty to recuse themselves from a case if there is even the appearance of an impropriety.  

If Judge Leslie Dutchcot did volunteer for or donate money to The Second Mile charity, she should recuse herself from Sandusky's case.  This is particularly so since Sandusky got access to his victims through The Second Mile charity, according to the indictment.

Yesterday, the United States Supreme Court heard oral arguments in a case where the question is whether an eyewitness identification of the defendant should have been allowed in court. 

Eyewitness identifications are often believed to be among the strongest evidence possible.  If someone says they saw the defendant commit the crime, chances are most people will believe the defendant is guilty. 

Eyewitness identifications are also a common point of drama in crime stories.  A witness looks the defendant in the eye, points from the witness stand, and says, "He's the one.  I'm sure of it."

However, many studies have found that eyewitness testimony is notoriously untrustworthy.  Of 250 exonerations based on DNA evidence, 190 prisoners had been convicted based on mistaken eyewitness identifications. 

That said, identifications are generally only kept out of court when the police used unduly suggestive tactics to get the witness to identify a particular person.  Otherwise, traditional trial protections, such as cross-examination, expert testimony, and jury instructions, are relied on to protect against a jury wrongfully convicting someone based on a faulty eyewitness identification. 

Whether that will continue to be the case will be decided soon by the U.S. Supreme Court in Perry v. New Hampshire. 

Several experts have testified for both sides in the manslaughter trial of Michael Jackson's doctor, Conrad Murray.  There are two basic, and competing, goals when an attorney cross-examines an expert witness.

Generally, the side presenting the expert will have spent considerable time laying a foundation for the expert witness's expertise:  their credentials, education, publications, and experience in the field about which they are testifying. 

The opposing side may try to attack the expert's credentials.  Maybe they have book knowledge, but little real-world experience.  Perhaps their studies have been on a related subject but not directly about the matter in dispute at trial.  Regardless, to the extent possible, the opposing attorney will try to minimize the expert's impact by challenging his or her expertise.

Before doing that, however, the opposing counsel should try to use the expert to advance his or her own case.  For example, if a defense expert can offer anything in support of the prosecution's case, the prosecutor should try to get that information before the jury.  It is very powerful evidence for a witness engaged and called by the other side to give favorable testimony for your case. 

Eliciting any favorable testimony should be done before attacking the expert's testimony because the impact of the expert's testimony will be lessened after he or she has been discredited (hopefully).

Courtrooms are generally very formal places.  They are also places where particluar protocols of speaking and behavior are expected.  Using proper court protocol can go a long way, and not using it can doom a lawyer in the judge's eyes. 

Protocol is particularly important as a lawyer appears in higher courts - appellate courts and supreme courts.  Federal courts are notorious about holding lawyers' feet to the fire for failing proper protocol.  I once saw a federal district court judge scold a female FBI agent who was a witness for wearing a pants suit instead of a skirt suit.  I also once saw a federal judge harshly scold an attorney for failing to immediately stand upon addressing the court.

Judges are in charge of the courtroom, and are generally the people deciding the outcome of a case, particularly once you get past trial.  Even in trial, they make many legal rulings along the way that can greatly affect the outcome.  Many believe they can even have an influence over a jury's decision at trial. 

In short, a lawyer should try to keep the judge or judges happy.  Or at least try not to irritate them.  Failing to follow proper protocol (even a judge's idiosyncratic protocol applicable only in his or her courtroom) is one of the easiest ways to irritate a judge.

Some examples of courtroom protocols include:  standing when speaking; addressing the court as "Your Honor"; stating "May it please the Court," before beginning an argument; asking to approach the witness before walking up to the witness stand; asking to move anywhere in the courtroom before leaving the lecturn; not making "speaking objections"; and keeping out of "the well."

To maintain authenticity in a fictional work, a writer should be aware of the common protocols in the courtrooms about which they are writing, so their fictional judges and lawyers may act accordingly.

The prosecution is expected to rest today in the trial of Michael Jackson's doctor.  What does it mean when the prosecution "rests?"  It basically means the prosecution has finished presenting the evidence it has to try to prove the defendant guilty.  It has finishind its case-in-chief.  The defense then has the opportunity to put on evidence if it so chooses. 

Unlike the prosecution, the defense in a criminal trial need not put on any case at all.  This is because the prosecution has the burden of proof.  To convict someone, the prosecution must prove the defendant is guilty beyond a reasonable doubt.  Here, the prosecution must prove, beyond a reasonable doubt, that Dr. Murray committed involuntary manslaughter against Michael Jackson.  (See prior posts here and here for more about the involuntary manslaughter charges.) 

Once the prosecution has presented all the evidence it believes proves the defendant guilty, it rests its case.  The defense then has the option of putting on its own case.  However, the defendant need not do anything.  He may simply attempt to poke holes in the prosecution's case, and argue to the jury that the prosecution did not meet its burden of proof. 

If the jury has a reasonble doubt, whether based on weaknesses in the prosecution's case or the strength of the defense evidence or both, it must acquit.  Although they need not do so, Dr. Conrad Murray's defense attorneys have indicated they intend to call witnesses in his defense.  If Dr. Murray chose to testify, that would also happen during the defense case. 

Knowing the rules of criminal law is essential to creating a piece with authenticity.  However, that does not mean that the rules must always be followed.  Breaking the rules for the sake of drama is perfectly acceptable and often necessary to create a compelling story.  The key is to first know what the rules are, so you can then make an intelligent decision about how and when to break them.

One of the best courtroom drama scenes in movie history broke the rules and did it in a way that did not take away from the film's authenticity.  Remember this exchange?

        Witness:  You want answers? 
        Attorney: I think I'm entitled to. 
        Witness: You want answers? 
        Attorney: I want the truth! 
        Witness: You can't handle the truth!

Of course, this is the height of drama in the courtroom scene of A Few Good Men.  This is the culmination of an epic battle between Tom Cruise as the defense attorney and Jack Nicholson as the witness. 

This exchange is followed by a long recitation by the witness about the importance of the military to our ordered society even though we sometimes do not like the way they conduct their business. 

This scene breaks the rules because trials are conducted in a question-and-answer format.  The lawyer asks questions, and the witness answers.  Here we have the opposite.  The witness is asking questions and the lawyer is answering.  Then the witness gives a long speech that is not in response to any question.  (The objection there would be "nonresponsive" or "no question pending.")

However, it works for the story here because Tom Cruise's character is trying to push Jack Nicholson's character to admit that he gave the order that killed the victim and is therefore responsible for the death.  It's an important reveal for the witness to explain why he does what he does even though most people would consider it "wrong." 

More importantly, the movie can break these rules for the sake of drama without losing credibility because most of the movie is very authentic.  There is an understanding of the way criminal cases and trials really operate that pervades the entire movie.  That kind of authenticity throughout the story permits the knowledgeable viewer to forgive the occasional rule being broken.  Especially when the result is such great drama!

The lesson is that breaking the rules doesn't take away from credibility when it is done conscientiously and with an understanding of the choices you are making.