The highly popular publishing genre, True Crime, brings to mind a slew of great books like Truman Capote’s In Cold Blood, Vincent Bugliosi’s Helter Skelter, Cathy Scott’s The Killing of Tupac Shakur, or Ann Rule’s The Stranger Beside Me. True Crime books are nonfiction but written like a novel, and examine real criminal cases involving murder or some illegal act where there is an investigation and trial.
Not just any criminal case will do for the subject matter of a True Crime book. The crime and its cast of characters with intersecting paths must be worthy of psychological insight and microscopic analysis into how and why the crime happened.
Like any non-fiction book, the process of crafting a good True Crime story requires lengthy and proper research. If the criminal case is present day, you will want to attend the trial, visit the crime scene, learn what you can about the evidence and the roles of the players involved — criminals, suspects, victims, police, prosecutors, judges, and experts. Some key characters you will want to interview (see my earlier post: Interview Releases — Should You Use One). Such in-depth research also requires reviewing court case files and police records. But there are certain legal hurdles to gaining access to this type of evidence.
Generally, criminal trials must be open to the public. But there are exceptions like safety issues (gang or organized crime trials), privacy and decency concerns (rape cases, juvenile proceedings, protecting the identities of undercover police, sexual exploitation, prostitution cases) and protecting sensitive information (espionage, trade secrets, classified information). Depending on the popularity of the case, you might be able to attend on a press pass, which can be obtained from the prosecutor’s office. Or if there is room, show up to court and take your chances space will be available in the pews.
During trial, the transcript and the evidence used is public record. You would think evidence shown in open court would automatically mean access would not be restricted. But gaining access to trial evidence is not guaranteed. Usually, the public has a right to access trial evidence, absent exceptional circumstances like those for closing the trial to the public. Ask the court reporter or prosecutor for access to the evidence. Normally, this requires looking at the evidence in court, but sometimes certain items can be copied. Be aware that fees can be high for requesting copies. A court transcript can be insanely expensive: $3-$6/page for a 2400 page transcript. You do the math.
Under state and federal public records acts (Freedom of Information Act or FOIA), the public can access records from government agencies like police departments. It is a powerful and easy tool for obtaining justice system information.
FOIA requests can be a huge investment of time and effort. FOIA requests can be made to any agency for access to public records but be aware that not all documents are accessible to the public. In the case of police records, a writer can access a mint of information, like cleared suspects, witness interviews, crime scene photos, and additional evidence like 911 tapes, warrants, and dispatch records.
While jurisdictions vary, federal FOIA requests allow you to specify the format for how you would like to receive the records (printed or electronic form). The agencies, however, are not required to create these for you, nor will they conduct research, analyze data, or answer questions when responding to such requests. Usually, the FOIA requester is required to pay for searching and making copies of the archival material. Be aware that fees for FOIA requests can be pricey depending on what and how much is being copied.
Some information requested will not be made public, like personnel files, trade secrets, and personal information. If the case is still open (no determination of innocence or guilt yet), any document request will most likely be denied, or severely limited.
Making FOIA Requests
Federal FOIA requests require no special forms. All that is required to request public information from a government agency is a letter with a reasonable description of the records you want which you submit to the agency’s FOIA office or the person who handles FOIA requests. Most federal agencies accept FOIA requests electronically (via web forms, email, or fax). See below for a sample FOIA request letter.
FOIA requests from state agencies may vary as to the process so check first before submitting. Also, call the agency first to find out who is in charge of records requests. For example, the chief or the town clerk may handle requests from a local police department.
Response times vary depending on the jurisdiction, the agency, and the complexity of the request. State laws usually have time requirements for response. California agencies must respond in ten days and in writing with the request fulfilled or why it is denied. If you do not receive a response, follow up. Simple requests, ones that seek a few pages of a record, are processed faster than complex requests, which seek a high volume of material or require searching records in multiple locations.
Defamation, Right of Publicity, and the Right of Privacy
Just a quick word about these three legal terms–make sure you understand them when writing about real people. If you stick to the facts and the public record, then defamation or the right of privacy should not be an issue. As for the right of publicity, there is a public interest in telling a newsworthy story, so the cast of characters in a True Crime story has less expectation of privacy. However, if the case is old, the public interest argument may not be as strong.
You can learn more about these legal terms and how they affect writers writing about real people in my previous articles: The Legal Risks Of Writing Memoirs and Using Real People, Places, And Corporations In Your Fiction – How Real Can You Get And Not Be Sued?
Often copyright issues will collide with FOIA requests. Be mindful that some of the material you receive or request from a government agency may be subject to copyright protection. If the material is created by federal government employees for their job, there is no copyright protection. However, that is not the case with material created by third parties for the federal government. Likewise, police records that contain evidence not used at trial (e.g. photos, or text messages) may also have copyright protection. The laws are a tad ambiguous, but case law does support the argument that copyright law overrides FOIA access to public records, whether state or federal.
As with any book that is about real people and events, have the manuscript reviewed by a lawyer for any potential legal issues and how to eliminate the risks
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
Sample FOIA Letter
Agency Head [Freedom of Information Act Officer, FOIA contact person, or person in charge of records requests]
Name of Agency [like Local Police or Sheriff’s Department]
City, State, Zip Code
Re: Freedom of Information Act Request
Under the [Freedom of Information Act or the state records act you are using, like California Public Records Act (Govt. Code 6250-62700)], I request the following documents and information from your department: [identify the documents or information you want, be as detailed as possible, like all criminal reports, incident reports, investigation reports relating to suspect XYZ in case ABC].
I am willing to pay up to a maximum of $[_____] in fees for the request. If the fees will exceed this limit, please inform me prior to processing my request. [You might request a waiver of all fees for this request, noting that the disclosure of the requested information is in the public interest. But do not count on getting the fee waiver. If you do not want to put a $ figure down, ask the department to estimate the cost of your request before processing it.]
If you have any questions regarding this request or need additional information, please contact me at [phone number and/or e-mail].
I look forward to receiving your response within the statutory time period of [X days]. Please notify me at the contact information above when these records [and additional information requested] are available for pick-up.
Thank you for your consideration of this request.
[Your Name and Address]