Last week I was talking to a writer friend about Miranda warnings for an episode of a crime series. We smoothed over a minor misconception, one of many misconceptions about criminal cases that, as an avid lover of crime dramas, I often see. These mistakes are made out of ignorance of the law or for dramatic impact, and perpetuated by movies, books, and crime shows. Either way, the mistakes make the writing and plot inauthentic and sometimes unbelievable. Last thing we want as writers is to lose a reader because they think we are clueless about the subject matter.
Here are six common misconceptions about criminal cases.
1. The defense attorney must prove the accused is innocent.
For the most part, guilt or innocence is irrelevant to the defense attorney. The prosecutor has the burden of proving the accused is guilty beyond a reasonable doubt. The defense attorney’s job is to be an advocate for the accused, protect their rights during the criminal trial process, and prevent a conviction. In other words, make sure the accused is not convicted unless the state meets their burden of proof.
2. Prosecutors and defense attorneys conduct their own investigations.
I see this misconception often. The job of investigating a criminal case is generally left to private and law enforcement investigators. Prosecutors and defense attorneys rarely get involved in the investigation/fact gathering stage of a criminal case. They are too busy and, in the case of a defense attorney, too expensive to be collecting evidence at the crime scene or chasing down witnesses. Prosecutors will rely on the reports and evidence collected by law enforcement investigators. Defense attorneys will often order an independent investigation by hiring a private investigator to help develop the accused’s case and make sure the prosecution meets their burden of proof. Maybe the police investigators did not do a thorough job. Maybe the defense attorney wants to determine how well the defendant’s case will hold up in court, or if there is adverse evidence they should know about before trial. Or possibly, the police did something wrong during the arrest and investigation – maybe they coerced a confession out of a suspect, or made a mistake during a search and seizure. Or maybe there is physical evidence to be used at trial, and the defense attorney wants an independent scientist to evaluate the evidence.
Sometimes, prosecutors and defense attorneys will interview or re-interview a witness prior to trial. The overwhelming reason is to determine how the witness will perform at trial. But generally they rely on the investigators, their reports, and interviews. If an attorney does interview a witness, a third-party will be present (like a junior associate, or investigator). This way, if the witness decides to change his testimony, the attorney can impeach him based on a prior inconsistent statement corroborated by the third-party who attended the interview.
On a side note, any evidence discovered by the prosecution must be disclosed to defense counsel as soon as possible. But there is no requirement for the defense attorney to share newly discovered evidence with the prosecution.
3. Private investigators always undermine law enforcement investigators and the prosecution’s case.
Private investigators often assist with criminal investigations, hired by law enforcement investigators to help collect evidence. One common reason is because of budget cuts or manpower issues. Another reason is that police officers are more restricted as to what they can do to collect evidence. But a private investigator has more leeway, provided they are not breaking the law to collect evidence.
4. If the police do not give the accused a Miranda warning, then the case must be dismissed.
Most of us have seen enough crime shows to know what a Miranda warning is – “You have the right to remain silent….” Miranda warnings need only be given once the accused is arrested or in custody. If the person of interest is “free to leave” at anytime during questioning, then there is no need to read them a Miranda warning. But even if the police officer forgets to read the Miranda warning once the accused is in custody, the charges against the accused are not dismissed. The remedy is to suppress the statements, i.e. the statements are unusable at trial by the prosecution.
5. Having an alibi is a good defense.
An alibi could be a good defense but it could also have big problems. In fact, some defense lawyers I know would say it is a horrible strategy for the defendant to push an alibi defense. First, the defendant’s attorney should force the prosecution to meet their burden of proof beyond a reasonable doubt. But when the defendant uses an alibi as his defense, that burden can shift. If defendant cannot support an alibi with concrete evidence, the jury often thinks the accused is guilty because the alibi has been fabricated. Often a spouse, parent, or friend is the alibi witness, the very people who have reason to fabricate an alibi. In most states, a defendant must tell the prosecution if they are going to assert an alibi defense, which gives the prosecution time to undermine that defense. The best hope for asserting an alibi defense would be to have other evidence besides a witness to corroborate an alibi (like a security camera image time stamped during the time in question).
6. The accused cannot be convicted of possession if he is not caught with the illegal goods.
While crime shows often depict a fleeing suspect throwing drugs out a car window during a high-speed chase, or stashing a gun just before an arrest, the suspect does not need to be in actual physical possession of the illegal goods for a possession conviction to stick. Possession can be “constructive” rather than physical. In other words, the prosecutor only needs to establish that the accused had “dominion and control” over the illegal goods and was aware of their presence.
For example, if cocaine is kept in a locked safe in the suspect’s mother’s house and he knew it, this could be sufficient to prove “constructive” possession. Maybe the suspect left his wallet in the safe next to the cocaine. The implication is that the accused must have had access to the safe and knew the cocaine was there. The state need not prove the cocaine was in the accused hands in order to prove “possession.”
When it comes to understanding and using criminal cases in your fiction, do not rely on television shows and movies as your research source. Do your own independent investigations. Talk to a criminal defense attorney, prosecutor, investigator, or judge. Read up on criminal procedure in the jurisdiction where the plot is set. If you stay true to the subject matter, the writing will be accurate and effective, and one more reason why a reader will want to finish your book (and buy the next one).