Criminal Procedure

Adding Criminal Law and Procedure to Your Fiction: Part II


In my October 6 article for Sidebar Saturdays on Adding Criminal Law and Procedure to Your Fiction, I considered whether you should worry about getting the law right in your stories and novels. It’s up to you, authors—after all, you’re writing fiction!

For the sake of realism, if you want to put your fictional perp behind bars legally, here’s a starting point for further thought and research. Previously, I discussed search warrants and exceptions to the warrant requirement. In this article, I offer general concepts and fictional crime scenes involving stop & frisk, arrest, identification procedures, and indictment.

Searches of the Person: Stop & Frisk; Incident to Arrest

In criminal cases, the lawfulness of a stop or arrest typically arises on a motion to suppress the defendant’s statements or physical evidence. An improper arrest will not, on its own, give the court reason to dismiss the case, but if the court suppresses crucial evidence, the prosecutor may be unable to proceed.

Whether criminally prosecuted or not, an unlawfully detained person may have a civil remedy. A notable, recent case is Floyd v City of New York, a civil rights class action on behalf of minority citizens challenging the NYPD stop and frisk program as racially discriminatory. Another notable case is Raymond v City of New York, a class action by NYPD officers alleging an illegal arrest quota system—the subject of an acclaimed film documentary, Crime + Punishment.

Notwithstanding these challenges to specific police department policies, a properly conducted stop and frisk (or “Terry” stop after Terry v. Ohio, 392 U.S. 1 [1968]) is a viable police tool.

The police may detain and question a person upon “reasonable suspicion” supported by “articulable facts” that criminal activity is afoot (something less than probable cause). Where there’s reasonable suspicion that the person is armed and dangerous, the police may also pat down the outer clothing and remove any items that feel like weapons. Full-blown probable cause permits an arrest and a more extensive search of the person and any closed containers in the area within the arrestee’s immediate control (the “grab area”).

Crime Scene I:

Murderer, bleeding from the victim’s defensive scratches, goes to Walmart for bandages. His clothing conceals his injuries. As Murderer stands in line to pay, he’s sweating and acts nervous. After Murderer pays, Walmart’s security guard stops him, accuses him of shoplifting, frisks him, and finds the murder weapon, a knife.

Admissible: The Constitution protects individuals against government action—the security guard is a private citizen. If a police officer had conducted this stop and frisk, it would be unlawful. Nervous or “furtive” movements, combined with other observations, may indicate a weapon, but there’s not enough here.

Note: Is your protagonist an amateur sleuth (private citizen)? Most times, the evidence your sleuth collects will be admissible in court! But beware. Your sleuth could be committing crimes like trespassing and burglary by nosing around on private property without permission. Your sleuth could also be subject to civil lawsuit—but is your murderer going to be a very sympathetic plaintiff?

Crime Scene II:

On a summer night, Police Officers on motor patrol spot a young man walking in a “high crime area.” A silvery glint at the man’s back pocket catches their eye before he covers it with the edge of his T-shirt. They pass him, stop their car, and get out. The man runs, they catch him. An Officer pats the back pocket, feels a hard object, and removes a cell phone that turns out to be stolen property.

Inadmissible: Not enough here for a reasonable suspicion that the man is armed and dangerous.

Crime Scene III-a:

During a buy and bust operation, Police Officers ghosting the UC arrest George after he sells glassines of heroin to the UC. An Officer searches George’s pockets, removes a zippered pouch, opens it, and finds several more glassines.

Admissible: On a search incident to arrest based on probable cause, officers may empty pockets and search closed containers without a warrant.

Crime Scene III-b:

Same as III-a except, instead of a zippered pouch, the stash is inside a small backpack that George left on the ground near his feet.

Admissible: Officers may search a closed container in the “grab area.”

Crime Scene III-c:

Same as III-a except that the Officer finds a cell phone, which isn’t password protected, and reads text messages about George’s other narcotics sales.

Inadmissible: Cell phones are not typical “containers” that can be searched without a warrant. An exception may apply in the case of “exigent circumstances” (e.g. imminent danger of physical harm to persons or destruction of evidence).

Arrest Inside the Home

Your home is your castle. Without a warrant, the police can’t enter a home to arrest a suspect, with a few exceptions: consent (a person with authority voluntarily lets the police in); exigency (e.g. a reasonable belief that the suspect is harming someone in the home); hot pursuit (a chased suspect can’t avoid arrest by running inside).

Crime Scene IV:

Police Officers have probable cause to arrest Murderer. They go to Murderer’s home without an arrest warrant, knock on the door, and move away from the peephole. Murderer cautiously opens the front door and sticks his head out. The Officers pull him outside and arrest him, and he spontaneously makes incriminating statements.

Inadmissible: Although some cases have allowed arrests in a doorway where the suspect voluntarily came into “public view,” the arrest is no good if the suspect is only partially outside or tricked into coming outside. Other cases don’t buy the “public view” rationale. Better get an arrest warrant unless there’s an emergency.

Identification Procedures

The unreliability of eyewitness identification is a hot topic in this era of DNA exonerations. Police-arranged show ups and lineups are inherently suggestive because the witness might assume the police have caught the culprit. In court, these procedures are inadmissible if conducted in an “unduly suggestive” manner. A positive ID from a show-up or lineup can be crucial to the People’s case where the sole eyewitness can no longer identify the defendant at trial.

Crime Scene V:

Victim gives Detective a full description of her assailant, who has a three-inch scar on his forehead. Detective arranges a lineup with Suspect and five fillers, who are all similar in height, weight, hair color, and skin tone. Suspect, however, is the only one with the scar. Victim picks Suspect.

Likely inadmissible: Generally, a lineup will be suppressed as unduly suggestive if the defendant is the only person with a unique characteristic.

Crime Scene VI-a:

Responding to a radio report, Police Officers stop Suspect, who fits the description of an armed robber. The crime occurred ten minutes ago, three blocks away. Unbeknownst to the Officers, Victim has been following Suspect and sees the Officers frisking him. Victim spontaneously yells, “That’s him!”

Admissible: This is not a police-arranged show-up. The purpose of the exclusionary rule—to deter police misconduct—is not present.

Crime Scene VI-b:

Same as VI-a, but Victim stays at the crime scene. The Officers handcuff Suspect, put him in the back seat of the squad car, and drive to the crime scene, where Victim looks in the car and identifies him.

Gray area: Cases like this go both ways. A court could find that police custody is unduly suggestive. Cases which uphold similar show ups emphasize the interests in reliability and avoiding mistakes. A positive ID at this point is made when Victim’s memory is freshest. Alternatively, if Victim can’t make the ID, an innocent person will be released.

Let’s Make—No, Let’s Indict—A Ham Sandwich

Many states have the grand jury system for commencing felony prosecutions. The grand jury can indict a person before or after arrest. If under arrest, the defendant must be released from jail if not indicted before expiration of a statutory time limit. The defendant has the right to testify and may consult with an attorney during the proceedings, but defense attorneys are not allowed to question witnesses or address the jury.

In my novel Forsaken Oath, the statutory time limit was about to expire when my fictional murder suspect testified in the grand jury, giving a surprise defense. The prosecutor was faced with a dilemma: putting the case to a vote and risking dismissal, or releasing the suspect from jail and investigating further. The latter option eventually paid off.

With high caseloads, a day in the grand jury can seem like an assembly line. The prosecutor is the de facto “judge” and keeps the evidence to the legal minimum. This reality accounts for the famous saying that the prosecutor could indict a “ham sandwich.” Former Chief Judge Sol Wachtler of New York’s highest court is credited with this remark—although here’s an article debating the source.

Grand jury proceedings are secret, to protect witnesses and to avoid tipping off targets. Leaks and the consequences make for interesting plot twists in fiction. Or perhaps your story is about public outrage at the exoneration of a suspect in a high-profile incident. A notable case like this is Matter of James v Donovan, which denied public demand for disclosure of the grand jury transcript in a case exonerating the police in the death of a man who died in police custody.

Also, witnesses in the grand jury have immunity from prosecution for any crimes they reveal in their testimony. Defendants exercising their right to testify must sign a waiver of immunity.

Crime Scene VII-a:

The target of a grand jury investigation is Big Fish, the mastermind of a lucrative money laundering operation. Little Fish is testifying. The prosecutor, knowing that Big and Little Fish discussed the operation on a certain date, foolishly asks an open-ended question about what happened on that date. Little Fish answers, “I shot and killed Medium Fish, then I had a meeting with Big Fish.”

Witness Has Immunity: Witness’s testimony was responsive to a question. Prosecutors, take care! Otherwise, get a waiver of immunity from the witness.

Crime Scene VII-b:

Same as VII-a, except that, before the prosecutor asks anything, Little Fish blurts out: “I killed Medium Fish!”

No Immunity: The answer must be responsive to questioning to get immunity.

That’s it for now! Join me December 8th for a discussion of Guilty Pleas and Trials.

If you’d like to do more research, try the Nolo and Justia websites. For further reading on eyewitness misidentification, see the Report of the National Center for State Courts and the recommendations of The Innocence Project. If you’re interested in grand jury procedure, see the summary of New York grand jury procedure of the New York County Lawyers Association; many of the concepts apply to grand jury proceedings everywhere.


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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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Adding Criminal Law and Procedure to Your Fiction: Part III
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