Adding Criminal Law And Procedure To Your Fiction

The Case for Getting it Right

For my novels about a female prosecutor, much of the “legal research” is in my head from a career in criminal justice and the court system. Police work and courtroom drama are great for building suspense. I also strive for accuracy under the law.

Authors: Should you be concerned with accuracy? After all, you’re writing fiction. If you get it wrong, the lawyers and law enforcement professionals reading your stories are likely to notice—but does it matter? I actually enjoy yelling “Objection!” at the abominable mistakes of TV lawyers. It’s kind of fun.

Popular entertainment is full of inaccuracies. In an earlier Sidebar Saturdays article about Cops and Robbers and Lawyers by Brian Thiem, the thriller author and veteran detective points out that NYC Detective Danny Reagan in Blue Bloods is outlandishly unrealistic because of his disregard and ignorance of the law. Danny’s sister, Manhattan prosecutor Erin Reagan, is very by-the-book and forever reining him in. I find that Erin usually gets the law right, and the D.A.’s offices in Blue Bloods are exactly like my old trial bureau at 80 Centre Street in Manhattan. But Erin seems to be prosecuting her cases in the wrong court—the civil courthouse at 60 Centre Street, a much prettier building than the real Criminal Court Building at 100 Centre with its bizarre ziggurat. (Now, there’s a word for you.)

It’s your choice, but there’s something to be said for doing your legal research. Today’s savvy reader has a basic understanding of legal concepts. Probable cause. Miranda rights. Accuracy and detail could boost your creds. Obvious mistakes could turn some people off. Could. We don’t know. As I said, I kind of enjoy them. If nothing else, reading up on criminal law and procedure can kick-start ideas for your crime stories and novels.

In this article, I’ll pose fictional scenarios and tie them to legal principles under the U.S. Constitution. The 50 states are free to afford their citizens additional rights and protections. For example, New York has very liberal right-to-counsel rules; where an attorney has interceded, a defendant may not waive the right to counsel except in counsel’s presence, whereas a knowing and voluntary waiver outside of counsel’s presence is valid under the U.S. Constitution. So, if accuracy under state law is important to your story, you’ll need to research the particular jurisdiction.

Search and Seizure: The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects us against unreasonable searches by government officials. Search warrants must be based on probable cause. Under the exclusionary rule, evidence collected in violation of this constitutional right is not admissible in court.

If you want the evidence in your story to be admissible against your fictional suspect, ask yourself a few things:

  • Who is conducting the search?
  • Does the suspect have a reasonable expectation of privacy in the area searched?
  • Is there an exception to the warrant requirement?

Crime Scene I:

Police Officers, without a warrant or exigent circumstances, search Sheila’s house because they’ve seen her with Bob, a suspected narcotics kingpin. While there, they seize a piece of paper that Bob left behind on his last visit—a cryptic note of narcotics deliveries.

Admissible against Bob: The Fourth Amendment right is personal. Bob doesn’t have a “legitimate expectation of privacy” in Sheila’s house and doesn’t have “standing” to contest the illegal search.

Note: Here are some other great places to collect evidence against a suspect who has no legitimate expectation of privacy: Suspect’s garbage; phone numbers the suspect dialed (pen register); smells detected by a trained police dog; a car in which the suspect is merely a passenger.

Note also: Because the Constitution protects us from government action, evidence gathered by a fictional amateur sleuth or private citizen P.I. would be admissible in court. But, watch out! Your protagonist may be committing crimes like trespass and burglary while snooping around!

Fruit of the Poisonous Tree

The U.S. Supreme Court first coined this phrase in 1939. Basically, where an ostensibly legal search is based on information obtained through illegal means, the evidence seized is tainted and inadmissible.

Crime Scene II:

Detective X arrests Suspect A for a jewelry heist, without probable cause or Miranda warnings. Hoping for favorable treatment, Suspect A rats on Suspect B as the mastermind who came up with the plans for the heist. Detective X applies for a search warrant, omitting any reference to his unlawful methods. The plans for the heist are seized from Suspect B’s house pursuant to the warrant.

Inadmissible: Although the search warrant looks legit on its face, the evidence is tainted by Detective X’s unlawful methods in obtaining the information for the warrant.

Note: Exceptions to the poisonous tree may come into play if the purpose of the exclusionary rule—to deter unlawful police conduct—is not present. Basically, the evidence might be admissible if it was discovered, or inevitably would have been discovered, by means independent of the taint, or if the officers conducting the search acted in good faith without knowledge of the taint.

Plain View

When police are lawfully in a location where evidence is in plain view, they may seize it without a search warrant. The incriminating nature of the evidence must be immediately apparent, and the police must have a lawful right of access to the object.

Crime Scene III:

Detectives obtained a warrant permitting the search of a house for evidence of an illicit firearms business. While executing the warrant, they find a cache of automatic weapons in a bedroom and several plastic-sealed pounds of cocaine in a clothes closet.

Admissible: If the warrant authorizes them to search every part of the house, the drugs are in plain view where they are lawfully present.

Vehicle Exceptions

Searches of vehicles and closed containers within them may fall under a variety of exceptions to the warrant requirement, commonly called the “automobile exception,” “search incident to arrest,” and “inventory search.” That said, the police cannot search a car just because it’s a car. Whether an exception applies is often a nuanced inquiry based on the specific facts.

For your purposes, if you want the evidence seized from a vehicle to be admissible against your fictional perp, you will be in the legal ballpark if you remember these things:

  1. an objectively legitimate reason for stopping the car;
  2. probable cause to believe it contains evidence or contraband; and
  3. a search limited in scope to the specific circumstances.

Crime Scene IV-a:

The body of Anne’s husband has been discovered. Anne is a suspect, but the police have no evidence. Police Officers tail her car, hoping she’ll commit a traffic offense, and lo and behold, she runs a red light. They pull her over, ask for her license and registration, and Anne calmly complies. An Officer tells her to pop the trunk, where they find a gun, the murder weapon.

Inadmissible: The true motivation for stopping the vehicle doesn’t matter if there’s an objectively legitimate basis (i.e. traffic infraction) for the stop. However, a traffic infraction alone does not give probable cause to search, and Anne did nothing during the encounter to give rise to probable cause. She can’t be arrested for running a red light, so the search is not justified as incident to a lawful arrest.

Crime Scene IV-b:

Same as above, except that, after the stop, Officers ask Anne to step out of the car. At that point they see, through the open door, the butt of a gun sticking out from under the driver’s seat. Anne is arrested, the gun is recovered, and then they open the trunk, finding blankets soaked with the husband’s blood.

Admissible: Asking Anne to step out of the car is proper procedure for police safety. The gun is in plain view when the Officer is lawfully in the area from which it was observed. At that point, Anne’s arrest is based on probable cause. The search of the trunk would fall under the automobile exception, incident to the arrest.

Crime Scene V:

Let’s say that Police Officers do have probable cause to believe that Anne has murdered her husband and that the murder weapon or other evidence is in her car. They go to her house and find the car unoccupied, parked in the driveway next to the house. Without a warrant, they search the car and find the murder weapon.

Inadmissible: The automobile exception does not allow Police Officers to intrude on the “curtilage” (the area immediately surrounding the home) to gather evidence without a warrant.


If you’d like a starting point for further research, try these websites: Nolo and Justia. In future articles, I’ll explore concepts of Arrest, Identification Procedures, Indictment, Guilty Plea, and Trial.

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Legal Disclaimer: The information in this article is provided for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. You can read our full Sidebar Saturdays legal disclaimer here.

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