Saturday afternoon, Alafair Burke, (http://alafairburke.com) a former deputy district attorney, bestselling author, and law professor, talked about the myths many have regarding prosecutors, judges and investigators. She presented 5 myths.
Myth #1: Criminal cases involve trials.
She said 90% of all criminal cases are resolved before the criminal goes to trial. This is usually through plea bargaining where the criminal pleads guilty or guilty to a lesser charge and the prosecutor agrees to a lighter sentence.
Myth #2: Police and prosecutors work together.
Here is where a writer can create conflict because the two aren’t buddies and don’t always work together. The prosecutor wants to be sure the evidence will hold up in court and that there’s enough evidence for a conviction. The prosecutor is concerned about chain of command and that the evidence was gathered in the correct manner.
The police want the criminal off the street. What happens if they don’t get a proper search warrant? What if they didn’t get the criminal’s consent? What if they fudge a little so the evidence points to one person? (I remember that question being a key factor in the O.J. Simpson trial.)
Myth #3: Judges are umpires.
We think of an umpire as being impartial. Prosecutors know that isn’t always true. Judges do have prejudices, so who the judge is can make a big difference in how a trial is handled and what the sentence might be. Therefore, prosecutors and defense attorneys each hope they get a judge who will benefit their case. And when it comes to getting a judge to sign a warrant, the police look for (shop for) a judge who will go along with the affidavit they’ve created. (Some judges, she said, are really picky and have specific requirements for how an affidavit is filled out.) Some judges don’t want to be bothered at home, or on the golf course, to sign a warrant. This can definitely complicate your plot.
Myth #4: Defendants hate prosecutors and love their lawyers.
Defendants, Alafair said, only love their lawyers if they feel they the lawyer has done a good job. If the lawyer doesn’t do a good job (in the defendant’s opinion) the defendant may hate his/her lawyer. (This creates a good motive for killing one in a story.) On the other hand, the defendant often respects a good prosecutor.
Myth #5: Search warrants are always needed
It depends, she said. Is this a seizure (If the police are looking for something specific that they will seize, then yes a warrant is needed and it will need to be for that specific item.) or is this a search? A search is snooping. If the police come to your house and you willingly admit them, and they see something in plain sight (public view), it can be used against you in court without a warrant. If something is tossed out (garbage, a cigarette butt, an empty soda can) it can be taken and what is found on or in it can be used as evidence. If something is given to a third party, if a trained dog alerts to something (drugs, explosives, etc.), or if you’re in a situation where it’s considered necessary for protection (TSA searches, weapon search during an arrest, border crossing searches, etc.) whatever is found can be used in court. Alafair said, when asked, 90% of all people tell the police to go ahead and search.
As a writer and reader of mysteries, I’ve seen all of these myths broken in stories. In A KILLER PAST (to be released in March 2015) I had my officers shopping for a prosecutor they knew would go along with their plans, as well as a judge who would quickly sign a warrant.
Don’t you think it’s fun to break the myths?