Plotline Myth Busting with NYT Bestseller Alafair Burke

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I am using this blog article to share my notes from a recent lecture entitled:

Cool Stuff I Learned as a Prosecutor that You Can Use in Your Book 

- given at WPA 2014 by Alafair Burke. I am posting these notes with her kind permission.

Alafair Burke, a graduate of Stanford Law School, is a professor of law at Hofstra University. She uses her background to inform her novels. Alafair is a NewYork Times Bestselling author and has been interviewed by The Today Show, People Magazine, The New York Times, MSNBC, The Washington Post, USA Today, and The Chicago Sun-Times. And in person, she is just a fun and wonderful person.

The Myths:

1. Criminal cases involve trials

* Trials are the exception 

* 90% are resolved by plea.

* They are fast and informal - the suspect waives his rights, and

   pleads guilty.

* Charge Bargain - Instead of murder one, your character will plead

   guilty to a lesser degree.

* Sentence Bargain - Your character pleads guilty to the charge but 

   will receive a sentence that is less than the maximum.

2. Police and prosecutors are part of a single, integrated, happy

    team. 

* The police and the prosecutors institutionally are not friends.

   They have different hierarchies.

* Individuals make friends and personal relationships, and they

   ARE important.

* There is a cultural collision in their jobs - they are intentionally 

   different.

   ~ Police - I caught the bad guy.

   ~ Detective - I've got my evidence

   ~ Prosecutor - Looks for what's missing, has hindsight, wants to

      have no holes (doubt)

   The police and the detectives rush to tell the story. It is the

   prosecutor's job to be skeptical of the story.

3. Judges are umpires

*** Who the judge is matters A LOT.
Judge Shopping

*If the plea deal is going poorly then they find

  out who the judge is who will try the case. If it is a judge who 

  hands down harsh sentences, it might be better not to chance it

  and take a lesser time deal. If the judge is unsympathetic to the

  issues that the prosecutor might be having in filling in the holes in
  the crime story line, then it might be best if the prosecutor offers a
  lesser charge.

* When a warrant is needed some judges are more flexible and

   some more exacting. The process of getting a warrant is fast -

   under three minutes.

4. Defendants HATE prosecutors and love their defense

* Defendants recognize and often respect a prosecutors power.

* Often a defendant views their own lawyer as unsuccessful or

   powerless.

5. Police Need Warrants

* 90% of searches are warrant-less.

* Search is looking for something

* Seizure is interfering in movement

  blog article on warrants

A. Is it a search? Only if the police:

   `Do something outside the bounds of a "reasonable expectation of

     privacy"

   `Commit "trespass."

* Public View - It's okay to:

  `Follow

  `Aid the senses by using binoculars and flashlights

  `Collect abandoned property such as a cigarette butt, and

    discarded trash.

  `Use things exposed to third parties - for example - conversations

   between friends.

  `Use K9

B Is it a seizure?

* Cops can approach a person and talk with them. 

* Would a reasonable person believe that they were free to leave?

   The assumption is that a reasonable person would feel free to

   walk away from the police officer. 

* Chasing is NOT the same thing as seizing,

C. Here are the exceptions - 

     You DO NOT NEED A WARRANT to:

* Arrest someone in a public place

* Terry stops - stop and frisk for weapons (need reasonable

   suspicion)

* Protective sweeps - a well-established law that
   law enforcement arresting someone in a house may perform a
   quick and limited “protective sweep,” warrant-less search for
   their own safety when there is a reasonable suspicion that the
   house may contain a dangerous person.

* Search incident to an arrest - this includes the person and

   everything within their arms reach. So your officer might want to

   time when they arrest the person so they can search whatever is in

   his reach. Ex. while he's opening his trunk

* Exigent circumstances: 

   ` Probable cause

   ` The object or person will move (not be found again)

   ` Someone could get hurt

   ` Evidence could be destroyed

* Community care taking ex. well checks

* Administrative searches

* Special needs

   `airports

   `probationers

   `students at school

* Roadblocks

* Inventory searches (the police impound a car and an inventory is

   taken of the items therein)

* Borders

* Consent -  90% give consent. YOU CAN REVOKE CONSENT

* Plain view -  finders keepers

UNLIKE the real police as a writer, you get to make up the facts. 

* Don't let the law stuff mess up your plot line.

* Want the police to hit a wall? Set up the facts to require a warrant
   - or have the supervisor or prosecutor say, "better safe than
   sorry." Then you could have a judge sign and they move forward
   OR not sign, and tah dah! They've hit the wall.

A couple of final concepts - 

Yes, you can pick up someone's phone when you arrest them if it's in their wingspan. BUT NO you can't search the contents without a warrant. The court says that's a definite no-no.

Sneak and peek warrants - Normally when the police go in and search something they plaster the warrant on the door or hand it to the person to let them know that the warrant was used and a search took place. BUT with the Patriot Act - the police can tell the judge why they do not want the suspect to know that they searched for something. If the judge agrees, then they don't have to leave notice. An example - they go and collect data from someone's computer or put on computer keystroke tracking devices. That way they can monitor someone's ongoing activity.

A big thanks to Alafair  for her wonderful talk. She has a new book coming out - why not pick up a good read?

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