Adding Criminal Law and Procedure to Your Fiction: Part III

The Courtroom—Guilty Plea and Trial

Welcome to Part III of Adding Criminal Law and Procedure to Your Fiction. See Part I for a discussion of search warrants and exceptions to the warrant requirement, and Part II for stop & frisk, arrest, identification procedures, and indictment. Now, on to the really fun part—the courtroom!

Your fictional perp is caught and indicted. It’s time to deal or go to trial! As I’ve mentioned before, it’s up to you whether you want to get the law right in your stories and novels—after all, you’re writing fiction. For the sake of realism, if you want to put your fictional perp behind bars legally, this three-part series is the starting point for further thought and research.

1. Arraignment and Bail HearingBail Hearing

First stop, arraignment on the indictment. For most cases, this includes a bail hearing. The purpose of bail is to guarantee the defendant’s appearance in court. The judge considers the seriousness of the offense, the defendant’s ties to the community, criminal record, and any history of bail jumping.

Bail reform is currently a hot topic. Pretrial incarceration disproportionately impacts the poor, spurring efforts to change the bail system. In New York, for example, a proposal to replace the infamous Rikers Island with four smaller facilities requires a drastic reduction in the jail population by measures including supervised release as an alternative to bail.

Ideas for your crime fiction? Perhaps your character is up to no good while awaiting trial—your investigator can track him with GPS. This was a minor plot device in The Lincoln Lawyer, a movie based on the novel by Michael Connelly.

Thursday's ListOr maybe your perp’s criminal inclinations are hampered by home detention and electronic monitoring—he’d rather pay bail while he’s awaiting trial. Sorry! There’s no constitutional right to pay bail instead of nonmonetary conditions of pretrial release according to a federal circuit court in Holland v Rosen, which upheld New Jersey’s 2017 bail reform system.

In the opening scene of my novel Thursday’s List, a hard-nosed judge gives a petty criminal a no-win choice between a high bail or a 7-day sentence if she pleads guilty. The inability to pay bail can keep a pretrial detainee in jail longer than the ultimate sentence on a misdemeanor or low-level felony.

See why we need bail reform?

Courtroom Scene I:

Defendant is charged with attempting to murder his wife. At arraignment, he says, “I want to waive my right to counsel and represent myself.” Judge reminds Defendant that he signed a confession and “that’s pretty damning evidence.” Judge also says, “Lack of counsel will not be grounds for an appeal” and strongly advises Defendant to reconsider. Defendant says, “Absolutely not.” Prosecutor has no objection. Judge grants Defendant’s request.Anthony Hopkins

Error! This is a scene from the movie Fracture. No defendant in the real world gets to represent himself merely for the asking, but this Defendant, an intelligent, manipulative murderer, is played by Anthony Hopkins, who can act his way into anything. Judge is wrong about no grounds for appeal. An appellate court would likely find the waiver of counsel invalid.

Although a defendant may waive the right to appeal, Judge’s admonition here does not establish a knowing and intelligent waiver. In the real world, any waiver of essential rights, like the rights to counsel and direct appeal after conviction, must follow a detailed Q & A, such as the recommended scripts for trial judges listed here.

2. Pretrial Hearings

Any defense allegation that the police violated constitutional rights in the gathering of evidence will be tested at a pretrial hearing. If the court suppresses evidence, will the case be dismissed? Not always. The case can proceed if the remaining evidence is sufficient. For prosecutors, this can be a close call, and the unattractive alternative is a years-long delay to appeal the suppression ruling.

I featured this dilemma in my story “A Simple Case” based on a misdemeanor trial I prosecuted as a rookie. If you read the story, you’ll see that I learned a hard lesson!

3. Plea Bargaining and Guilty Pleas

The system would come to a crashing halt if every defendant exercised the right to a trial. Most cases are resolved with plea bargains. Although a bargain can be struck at any time, serious negotiations often start after the defense loses a suppression motion at a pretrial hearing. Everyone gets nervous when it’s time to start picking a jury.

The prosecutor determines the charges, and the court determines the sentence. A prosecutor can lower or dismiss charges but can only recommend a sentence to the court. At times, it seems that the prosecutor dictates the sentence, but in reality, the prosecutor simply knows from experience what kinds of sentencing recommendations the court will accept.

A guilty plea must be knowing, voluntary, and intelligent—e.g., the defendant must understand the rights forfeited. If not, the defendant may be successful in withdrawing the plea either before sentencing or on appeal. If so, the case is back at square one.

Courtroom Scene II-a:

Defendant is charged with intentional murder. Prosecutor refuses to lower the charge but promises to recommend the minimum sentence if Defendant pleads guilty. In court, Prosecutor makes the recommendation, but Defendant is waffling. Judge says, “Plead guilty today and I’ll give you the minimum, 15 to life. If you go to trial and get convicted, I’m giving you the max, 25 to life. It’s now or never. My offer is good today only. Go to trial, you’re getting 25 to life, guaranteed!” Defendant pleads guilty.

Error: Judge’s statements are coercive. But note—there’s a fine line between coercion and informing Defendant of the law. Judge should have said something like this: “The sentencing range for this crime is between a minimum of 15 to life and a maximum of 25 to life. If you are convicted after trial, your sentence could be as high as 25 to life.”

Courtroom Scene II-b:

Same as above but Judge properly informs Defendant of the sentencing range in a non-coercive manner and promises a sentence of 15 to life. Defendant pleads guilty. Before the sentencing date, a presentence report is prepared. At sentencing, Judge says the information in the report persuades him that 15 to life is not an appropriate sentence. “This Court hereby sentences you to 25 to life.”

Error: The Judge does have the final say on sentence. However, Defendant pled guilty in reliance on a promise which can’t be kept. This potentially invalidates the guilty plea, not the sentence. This Judge should have given Defendant the opportunity to withdraw the plea before imposing sentence.

Trial Procedure and Practice:

1. Unrealistic Scenes in Movies and Novels

…but we love scenes like this, so who cares about making it accurate?lawyer client

  • In Your Face: Attorney grabs the rail of the witness box, lurches forward, and hurls a question at Witness, who recoils and starts sobbing. Sorry. In real life, no judge would subject Witness to Attorney’s coffee breath. Lawyers must stand at counsel table or behind a lectern and ask the judge’s permission to approach.
  • Toweling Down Together: Prosecutor and Judge, old buddies from law school, play in a basketball league. Wiping their sweaty necks after the game, they chat about the evidence in Prosecutor’s case, currently on trial in Judge’s courtroom. No, no, no! Ex parte communications violate professional ethics. But go right ahead if you want your fictional Prosecutor disbarred and your Judge thrown off the bench.
  • A Page-Long, Surprise Reveal of Attorney’s Entire Theory of the Case: You’ve seen or read it before. The attorney gives a long-winded explanation, usually followed by, “Isn’t that so, Mr. X?” Never would this happen. Attorneys may not “testify” while questioning a witness, make speeches, assume facts not in evidence, or pose multi-part questions. No leading questions on direct, only on cross-examination, and even then, no compound questions.
  • Buddy-Buddy: Pats on the back. Whispers and smiles. Okay, it isn’t so unrealistic for the defense attorney to act like the client is a good guy. A trial is part show. But the jury doesn’t want to get so up-close and personal. The prosecutor’s table is always next to the jury, and the defendant sits at the end of the defense table farthest from the jury.


2. Ethics: Defense Attorneys

Now, for a classic dilemma.

Courtroom Scene III-a:

Defendant tells Lawyer that he committed the murder, but he insists on testifying that he was at Friend’s house, watching TV. Friend is willing to testify too. Lawyer strongly advises Defendant not to testify. Defendant says he has the “gift” of persuasion and will convince the jury of his innocence. Lawyer gives in. At trial, Defendant and Friend testify as planned in response to Lawyer’s questions.

Ethics Violation: Lawyer has suborned perjury, violating a duty to the court. But Lawyer also has duties to Defendant—zealous advocacy, confidentiality, and loyalty. Moreover, Defendant has a constitutional right to testify. (Cynical people call this the constitutional right to commit perjury.)

How to get out of this catch-22? The solution is rather artificial, but it’s the best we can do. Lawyer must first attempt to dissuade Defendant from taking the stand and committing perjury. Failing that, Lawyer must honor Defendant’s decision to testify but should inform the court that Defendant will testify in narrative form. To avoid divulging client confidences, Lawyer is not required to tell Judge why (but everyone knows it’s because Defendant is going to lie). Lawyer thus avoids actively and knowingly eliciting the false testimony.

Under no scenario do I see an ethical way to present Friend’s testimony. Lawyer should not put Friend on the stand. For examples of cases discussing this problem, see People v Andrades, and People v Wesley.

Courtroom Scene III-b:

Same as III-a, except that Defendant does not tell Lawyer that he committed the murder. The evidence against Defendant is strong, and Lawyer is skeptical of Defendant’s story that he was watching TV with Friend.

No Ethics Violation: Lawyer does not knowingly suborn perjury by examining Defendant and Friend. Lawyers often don’t ask their clients directly if they committed the crime to avoid this dilemma if the client wants to testify.

3. Ethics: Prosecutors

Courtroom Scene IV:

Defendant is arrested and held on a felony complaint charging gunpoint robbery. Victim, too upset, can’t ID the robber, but three eyewitnesses picked Defendant out at lineups. Prosecutor is aware (but does not reveal to the defense) that the eyewitnesses had been at a party and were intoxicated when they saw the crime. Prosecutor offers Defendant a plea to a reduced charge with a substantially lower sentence, on condition that he waive indictment. Defendant takes the deal.

Gray Area, Arguably No Ethics Violation: Without question, the intoxication of the eyewitnesses is helpful to the defense, and thus, Brady material (Brady v Maryland, 373 US 83 [1963]) that Prosecutor must disclose if the case goes to trial. However, the law isn’t settled that disclosure must be made during plea negotiations.

Brady violations make for interesting plot twists in your novels. The evidence must be “material” to the defense, and this is highly fact specific. What if a crooked cop is hiding the evidence from the prosecutor? Prosecutor’s innocent failure to disclose is still a Brady violation. The knowledge of the police is imputed to the prosecutor, and it doesn’t matter whether the failure to disclose is willful or inadvertent.

That’s it for now. Thank you, Matt, for inviting me to share these ideas on Sidebar Saturdays.


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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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