Wednesday, September 24, 2014

Plotline Myth Busting with NYT Bestseller Alafair Burke


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
* 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 
   ~ 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

5. Police Need Warrants
* 90% of searches are warrant-less.
* Search is looking for something
* Seizure is interfering in movement

A. Is it a search? Only if the police:
   `Do something outside the bounds of a "reasonable expectation of
   `Commit "trespass."
* Public View - It's okay to:
  `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 - 
Arrest someone in a public place
* Terry stops - stop and frisk for weapons (need reasonable
* 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
   `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?

Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.


  1. Brilliant, entertaining and educational – as always.

  2. Excellent information. It couldn't have come at a better time. Thank you, Fiona. As always your posts are excellent resources.

    1. Thank you kindly, Sue. Happy plotting!


  3. Actually, it's so good I am going to share it with my followers. Thanks again!

  4. Per our conversation on Twitter: what authority does an ADA have compared to his boss, the DA? Would he be able to go directly to a judge for the signing of a warrant, or does he have to present it to the DA and allow the DA to make the determination for a warrant? Either for a search or arrest warrant. Does a search warrant have to go before a grand jury, or just an arrest warrant? And what's presented to a grand jury so they can determine if there's enough for an arrest warrant? I've read that often evidence presented during a grand jury can be evidence that wouldn't be admissible in court during an actual trial, is that true? What kinds of cases go before a grand jury for a warrant? Only homicides, or other cases too?

    1. Okay - I'm a bit confused by the warrant part of your question, but I'll pass this along and see what he says. The police seek warrants. If the prosecutor thinks there is a hole in the case, they will suggest that the police plug it or they wont file the case with the courts. A prosecutor wants to have a good win record (among other reasons) and they do not want to take a case before the judge that they aren't sure that they can win. It's the police who apply for warrants, serve the warrants, and carry out the investigation. The DA and the ADA are lawyers and their job is to take the completed/investigated case before the judge if they were not able to get a plea deal.


  5. I apologize, I miswrote. I meant would the ADA be able to go directly to a judge for an indictment (not warrant) or would he first have to present that to his boss (the DA) and let the DA make a determination for indictment before it goes to the judge?

    As far as the grand jury goes, what sort of cases would have to go through a grand jury? Homicides only, or any felony charge?

  6. Great info about court proceedings and the judicial system. Thank you!
    ~ LX Cain

  7. Good stuff, Fiona! Wishing you a great 2016. ♥