A common question that is asked is what is an alibi defense?  An alibi defense is a classic example of a type of defense called failure of proof defenses.

The easy explanation of an alibi defense is that the defendant claims he was somewhere else when the crime occurred.  To assert this defense in court, the defendant must generally bring forward some proof - a receipt, time-stamped photos, credit card charges, or a witness who saw the defendant.  The stronger the evidence that supports the alibi, the more likely such a defense will be successful.

Once the defendant has asserted an alibi defense and put on some evidence of it, the burden shifts back to the prosecution to prove the defendant was the person who committed the crime and was in the place where the crime was committed. 

Of course, it is the prosecution's burden of proof to begin with to prove beyond a reasonable doubt that the defendant was the person who committed the crime.  However, if the defendant puts on some alibi evidence and the prosecution is unable to rebut it, the defendant may be entitled to an acquittal (a finding of not guilty).

There is of course a big difference between the defendant's mom or wife testifying that he was with her the entire night (the most common alibi evidence), and a security camera capturing the defendant's image miles from the crime scene at the time the crime took place.

I once had a case where the defendant's wife had a long explanation about how she knew the defendant was with her the night of the robbery because they had signed loan documents that night, which were dated.  However, it later turned out the robbery occurred the night after the loan documents were signed.  The wife still testified her husband was with her that night, but after the passage of over a year, she was unable to bring forward any more specific proof.  He was convicted of the robbery.

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Also, get a free printable and portable Miranda Card, detailing the Miranda rights as read by the police.

When someone is in police custody, and the police want to question that person, the suspect must first be read their Miranda rights.  The suspect must then waive those rights before police may question him or her.

The Miranda rights are based on a United States Supreme Court case called Miranda v. Arizona, 384 U.S. 436 (1966).  That case basically held that a suspect or criminal defendant must be informed that they have certain rights, and must give up those rights before the police may question them.  This was done to counter police abuse and misconduct, which was often done to get someone to confess.

In movies and on TV, the Miranda rights are usually read as soon as someone is arrested.  This is unnecessary unless the person is going to be immediately questioned.  The rights need not be read to someone until he or she is going to be interrogated by law enforcement.

So, what exactly do the police need to say?  Here is a safe way for police to read someone their Miranda rights and get a valid waiver, so that whatever the person says can later be used against him in court:

1.  You have the right to remain silent.  Do you understand?

2.  Anything you say may be used against you in court.  Do you understand?

3.  You have the right to the presence of an attorney before and during any questioning.  Do you understand?

4.  If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.  Do you understand?

5.  Do you wish to waive these rights?

The police should try to get a "Yes" answer to each question to ensure the person understood and voluntarily waived each of his rights. 

Sign up here to get a free printable and portable Miranda Card that has this information in a convenient and easy to use format:

The Miranda Card lists the rights as statements that a police officer would say them to a suspect.  The card is small enough to cut out and carry in your pocket.  Many police officers carry a card like this and use it to ensure they properly advise a suspect of his or her Miranda rights, and get a valid waiver. 

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This is an almost daily scene in television and movies:  An undercover police officer begins discussing an illegal transaction with a known criminal.  The criminal asks, "Are you a cop?"  Of course, the police officer says he is not.  The criminal is satisfied, and they conduct their illegal transaction.

In real life, if an undercover police officer is asked whether he or she is a cop, do they have to tell the truth?  The short answer is no. 

Police officers are allowed to lie to suspected criminals.  The police officer who lies and says he is not a cop will not get in trouble, and any evidence he collects as part of the undercover operation can be used in court.

I have sometimes been asked, isn't it entrapment when a police officer lies and says he is not a cop?  Again, the answer is no. 

Entrapment generally occurs when a police officer (or other government agent) induces the defendant to commit a crime he would not have otherwise committed.  Simply providing someone the opportunity to commit a crime is not entrapment.  Certainly telling someone that he or she is not a cop would not induce someone to commit a crime they would not have otherwise committed.

So, why do television shows and movies always do this?  I don't have a good answer for that.  Maybe it's an easy way to show the criminal is suspicious of the undercover cop.  Maybe it's laziness or ignorance on the part of the writers.  One thing is for sure:  it is overused and suggests an incorrect legal standard.

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It is common advice given to new lawyers in trial:  Never ask a question you don't know the answer to.  The idea is that you don't want to be surprised by a witness and have someone (intentionally or unintentionally) torpedo your case from the witness stand.

The following legendary story of grandma going to court illustrates this concept in a funny and unexpected way:

(Unfortunately, this story isn't true.  http://www.snopes.com/legal/grandmacourt.asp.)

Of course, in real life, attorneys are not usually afraid of the witness revealing embarrassing information about them, but are concerned the witness will say something unexpected about the evidence that effectively ruins the attorney's case.  This can happen as a result of lack of proper preparation.  Or, in criminal cases, it can happen because of little or no opportunity to talk to the witness before trial.

A victim or witness is not required to speak to or cooperate with the attorneys on either side of a criminal case.  Unlike in a civil case, there are usually no depositions or interrogatories, or other opportunities to question a witness before trial.  The witness may have been questioned to some degree during a grand jury proceeding or preliminary hearing.  But often a criminal attorney has to rely on statements the victim or witness previously made to police or others. 

That is why, in the field of criminal law, it is a myth to suggest that a lawyer should never ask a question to which she does not know the answer.

For an example of why an attorney should not ask a question without first knowing the answer, check out the Academy Award winning movie "Anatomy of a Murder" with George C. Scott and Jimmy Stewart:

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Sorry this is a bit off topic, but I'm going to Hawaii this week, and I've got it on the brain.  Here are my favorite movies set in Hawaii (in no particular order) - I could stretch to find tie-ins to crime and law in each of these, but I wouldn't consider any to be truly legal drama or crime movies.  Just some good movies set on a beautiful island.

(Click the pictures to check out the movie.)

The Descendants
(George Clooney)

Forgetting Sarah Marshall
(Jason Segal, Russell Brand, Kristen Bell, Mila Kunis, Jonah Hill, Paul Rudd)

And, of course, no list of Hawaiian movies would be complete without Elvis...
Blue Hawaii
(Elvis Presley)

And because it's the only decent crime show set in Hawaii, honorable mention goes to:
Hawaii Five-O

Okay, that's it, one of you needs to write a good legal drama set in Hawaii!  Who's in??

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I am developing recommendation lists of the best all-time legal movies (drama and comedy), best crime movies, best legal and crime TV, best legal and crime novels, and best true crime books. 

This is a work in progress, but I wanted to post the movies I have listed so far.  Check it out:  Best Legal and Crime Movies

Feel free to let me know your thoughts on my lists, and let me know what your favorites are!

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This true crime book describes a murder of a 3 year old boy in mid-1800s England.  The young victim of the Road Hill murder's throat was slit, and his body was dumped down an outdoor privy.  The crime occured in the middle of the night, and everyone in the household was a suspect. 

The crime captivated the public's imagination, and everyone had a theory about who did it.  The concept of the detective was new, and detective stories were popular throughout the country. 

The methods of investigation used were rudimentary and seriously flawed by today's standards.  It is hard to believe any crimes were solved in those days.

London's foremost detective, Mr. Whicher, was brought in to review the evidence after the local police could not solve the crime.  He pointed the finger at what seemed an unlikely suspect, and was denounced when the evidence did not prove guilt.

The crime and ensuing investigation are described it in a way that leave you guessing who the murderer is. 

The book spends far too much time discussing fictional detective stories of the time.  It is clear the author did a lot of research, but most of it does not enhance the underlying story here of the murder and detective.  The references to other stories are often distracting and uninteresting if you have not read the books to which she refers.

Although the book gets bogged down by details and sidetracked by side stories, the underlying crime story is a good one.  If you have the patience to wade through the muck, the root is a true crime story worth reading.

(Click below to check out the book.)

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As discussed in a prior post, the criminal justice system can be broken down into 6 stages.  Knowing what happens in each stage, and the people, procedures, and rights involved, is critical to understanding and writing about it.

The first stage is the Crime Stage.  This is basically when the crime occurs, and it is the key to any trip through the criminal justice system.

A crime may be instantaneous or it may be continuing.  Examples of instantaneous crimes are most murders or robberies.  A continuing crime, however, is usually a more complex scheme or criminal enterprise, such as a drug dealing operation or a ponzi scheme.

Generally, the people involved at the crime stage include the person or people committing the crime, the victims of the crime, and any witnesses to the crime.  If a police officer or federal agent is undercover, the crime could involve that person as well.

The setting for the crime stage can be literally anywhere, from a board room or bedroom to a back alley, outer space, or cyberspace.

An example of a movie that is entirely focused on the crime stage is Ocean's Eleven.  In that movie, the key characters are the criminals (led by Brad Pitt and George Clooney), as well as the target victim (Andy Garcia), and his casinos.  The majority of the movie is spent following the criminals as they recruit others to participate in and fund the crime, plan the crime, and finally execute it.  

The crime stage begins when the crime is committed or when the criminal scheme or enterprise begins.  It ends when the crime is completed or is stopped (by arrest or some other means).

In Ocean's Eleven, the movie begins at the beginning of the crime stage, with George Clooney conceiving of the crime, an extremely complex theft of a casino vault.  The movie ends after the crime has been completed.

(If you've never seen Ocean's Eleven, or don't own it, click on the pictures below to check it out.)

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I recently read the true crime book, "Midnight in the Garden of Good and Evil" by John Brendt.  On some level, I hesitate to call this a true crime book because it is largely about other happenings in Savannah, Georgia.  But a core storyline of the book follows the multiple murder trials of an antiques dealer, Jim Williams, who shot and killed his young lover, Danny Hansford.

Jim Williams made a life and a fortune for himself buying and restoring historic houses in downtown Savannah.  Danny Hansford was a troubled young man who was sexually appealing to both men and women. 

Danny occasionally worked for Jim and had the run of his restored mansion filled with antiques.  Jim provided Danny with money, a car, and other material things.  Danny did not seem to have a problem with his position as Jim's semi-secret lover as long Jim kept Danny financed.

One early morning, in Jim's study, Jim shot Danny three times, killing him.  Jim reported the shooting to police.  He explained that Danny had shot at him first, and he fired back in self defense.

Jim Williams was charged with murder.  His four trials centered around the question of whether Jim had killed Danny in cold blood or whether he acted in self defense. 

The book is not very detailed or technical in its coverage of the trials, but you finish the book feeling like you understand why the outcome of each trial and appeal was what it was.  There is also enough information given to allow the reader to come to their own conclusions about what really happened the night of the shooting.  But there are still questions left hanging.

The non-true-crime parts of the book are equally interesting.  The author, John Berendt, tells the story of his part-time life in Savannah.  He encounters and befriends a variety of eccentric characters, including a piano-playing lawyer with a revolving door of friends and scams, a trash-talking drag queen, and a voodoo witch doctor.

The book was made into a movie, "Midnight in the Garden of Good and Evil," directed by Clint Eastwood, and starring John Cusack, Kevin Spacey, and Jude Law.

For an epilogue focusing on Jim Williams, and his non-fatal illegal dealings, check out "After Midnight in the Garden of Good and Evil."  Although not nearly as well-written as the original (and filled with typos), "After Midnight" is a short, quick read that fills in a few gaps and presents a different perspective.

(Click the pictures to check out the books and movie.)

Let me know what you thought about "Midnight in the Garden of Good and Evil."  And sign up for a free eBook on the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.

High profile cases are generally not the best examples of a criminal justice system at work.  I would certainly not want someone judging the American criminal justice system on the basis of the O.J. Simpson and Casey Anthony trials, for example. 

With that caution, Italy's investigation into a serial killer known as the Monster of Florence (il Mostro di Firenze), as presented in a gripping true crime book, The Monster of Florence, by Douglas Preston and Mario Spezi, was nothing short of absurd.  

Although not well known in America, the Monster of Florence is one of the most famous serials killers known throughout the world.  The Monster preyed on young couples who used the hills surrounding Florence as an intimate escape. 

While the targeted couple was in the heat of passion in their car, the Monster would shoot the man, then the woman.  He would drag the woman from the car and cut out her vagina.  In later crimes he would also rip off the woman's left breast.

These horrific crimes, committed over a period of years, terrified people living in the Tuscany hills, and created a frenzy to find the killer or killers.

The book follows the decades of investigation and prosecution of several people accused of being the Monster, or being someone criminally associated with the Monster.  The investigators' theories evolve from a lone serial killer to a family of killers to a vast satanic consipracy involving most of Florence's upper class.  Even the book's authors were swept up in the investigation.

The authors convincingly present their own theory of the crimes and suspect.  My one complaint is that I wished the book had explained a little more was the Italian criminal justice system.  From the bits and pieces discussed, it appears the Italian system is very different from the U.S. system in some key respects (the prosecutor is a judge, a trial is heard by a panel of judges not lay jurors, an appeals court can hear new evidence). 

It would have been interesting to have a little more background on that.  Otherwise, I found the book to be a fascinating case study.  It's a must-read for any fan of true crime.  Despite the complexity of the story, it was a quick and enjoyable read.

There were also some interesting parallels for anyone who followed the Amanda Knox story (American exchange student Amanda Knox and her Italian boyfriend were convicted of murdering her roommate Meredith Kercher in Perugia, Italy).  The main prosecutor who believed in and investigated the satanic consipracy theories of the Monster killings was also Amanda Knox's prosecutor, and he advanced similar theories in that case.

For fans of The Silence of the Lambs (my favorite serial killer book and movie ever) and Hanibal, author Thomas Harris apparently followed the Monster investigations and used the case as inspiration for his books (click the images to order from Amazon).