Thursday, September 8, 2011

"The Bill of Writes" by Joseph L. Giacalone, Guest Blogger

Today's guest is primarily for mystery and thriller writers, but I noticed a few things in this criminal justice instructor's post that might be good for any of us to know during a routine visit with the authorities. You'll see what I mean when you read on.

Please welcome Joe Giacalone, author of The Criminal Investigative Function: A Guide for New Investigators.


“The Bill of Writes” by Joseph L. Giacalone, Guest Blogger

Crime and mystery writers everywhere spend hours writing and days researching their craft. I for one would prefer to spend more time writing. To save you time, here are some tips on how to handle the Fourth, Fifth and Sixth Amendments in your crime stories. These are the issues that tend to show up most often in crime writing and cause readers like me fits when I see it done wrong. The following can help the writer concentrate on developing their characters and give their writing that real-life feeling.

The Fourth Amendment deals with Search and Seizure issues.

• Guarantees against unreasonable searches and seizures.
• The arrest of a person is considered a seizure.
• Creates a requirement that officers need a warrant and have to provide probable cause to get that warrant.
• The warrant must describe the place to be searched and the persons or things to be seized -- if it is not on a warrant, your character can’t take it.
• Mapp v. Ohio is the famous case which applied the Federal Exclusionary Rule to the states. The Federal Exclusionary Rule states that any evidence obtained unlawfully will be excluded in court.
• The Fruits of the Poisonous Tree -- any evidence obtained after an initial bad search will not be admissible.

Where does your suspect have a “Right to Privacy?”

• In their home it is an absolute right -- must have a warrant unless an exception exists. The most abused exception is the Emergency Exception. The police can enter any premise when they reasonably believe that an emergency exists. However, once the emergency is over, they must get a warrant if the suspect has an absolute right to privacy at the location, i.e. there is no such thing as a Crime Scene Exception!
• In a vehicle -- less privacy because it is in a public place.
• In public even less.

The Fifth and Sixth Amendments - Right not to incriminate oneself and the Right to Counsel

• Since 1787 all U.S. citizens had the right to remain silent and a right to an attorney.
• The Miranda Warnings are NOT a Constitutional Right, but have been given a Constitutional setting.
• Only sworn, active-duty police officers read Miranda when necessary. It does not apply to private persons, i.e. private investigators.
• The writer must use the reading of Miranda under the following condition ONLY: Interrogation + Custody = Miranda. If either the interrogation or the custody are not present, then no Miranda is necessary, don’t waste your readers' time. This is why no Miranda is necessary to conduct interviews.
• Suspects can only waive their right to counsel voluntarily, intelligently and knowingly. The police cannot not use trickery or threats to get a waiver.
• Ensure that your witnesses and victims are separated to avoid interview contamination, i.e. they don’t talk to one another to get their stories straight.

The Interrogation

• The goal is to obtain an admission or a confession. A confession is preferable.
• The interrogation room is absurdly small.
• The case investigator is the only one that asks questions! The partner is only a note taker.
• It is not a fishing expedition. Investigators don’t ask questions that they don’t already know the answer to.
• If you can’t get them to tell you the truth, get them to tell you lies.
• Interrogations start with open ended questions that elicit a story from the suspect and then is followed up with closed ended questions which establish facts.
• No leading questions, the answer is in the question and no compound questions, more than one question in the same question. Ask one question at a time!
• The police can lie about the existence of evidence but cannot fabricate it. For example, they can say, “We recovered your DNA from the crime scene,” but they cannot show them a fake DNA report or fake prints, etc.

What separates your crime or mystery story from another? Accuracy! I want to see a setting that incorporates all of the senses. For example, how do you think an interrogation room smells with three people in it after being awake for twenty hours in a row? I understand that each author has literary license, but you are not writing a romance story. Crime and mystery stories should have that real-life feel to it. It is easy to create that setting when the writer follows the “Bill of Writes.”


Joe, I appreciate your helpful post and hope we have plenty of mystery writers dropping by today to benefit from this information and to ask questions.

I'm reminded of the former policeman in my own critique group who read each chapter of my suspense novel and then gently reminded me "it wouldn't happen this way in real life." If we're going to include policemen and private investigators in our stories, we should try our best to get it right.

Joseph L. Giacalone is a 20 year law enforcement supervisor and the author of the The Criminal Investigative Function: A Guide for New Investigators. He is also an adjunct professor at John Jay College of Criminal Justice and in his spare time writes the Cold Case Squad Blog.

Learn more about Joe and his book at his website and by following him on Twitter at @JoeGiacalone and @ColdCaseSquad.


Margot Kinberg said...

Pat - Thanks for hosting Joe.

Joe - Thanks so much for this incredibly helpful look at real-life investigation. Like Pat, I want to "get things right" when I write, and your summary is very useful. For instance, I love your example about the difference between lying about the existence of evidence and creating false evidence. I'm archiving this - I'm sure I'll put it to good use.

irishoma said...

Hi Pat,
Thanks again for hosting such an informative visitor. His book sounds like a helpful resource.

I love Joe's advice, "If you can't get them to tell the truth get them to lie."

Donna V.

Patricia Stoltey said...

Good morning, Margot and Donna. It's fun to have this opportunity to showcase some folks who know the real facts about police procedures and policies. Having Joe as a guest, and not so long ago the writing pis Colleen and Shaun, has been very helpful.

Alex J. Cavanaugh said...

Wow, writing a mystery sounds like it involves a lot of research and know-how!

Jacqueline Seewald said...

Pat and Joe,

Thanks so much for this very informative blog. I am in the midst of doing research for a new mystery novel right now and find this very helpful.

Joseph Giacalone said...

You're welcome. Thanks Pat for having me! If anyone has any questions, fire away!

Marlena Cassidy said...

This is a great post, Joseph. If I ever decide to write a crime thriller, I'm so referring back to this. Thank you, Patricia, for hosting him!

Joseph Giacalone said...

Hi Marlena,
Thanks a lot. If you do write one and you need a question answered, keep me in your electronic Rolodex.

Patricia Stoltey said...

Joe, thanks so much for your excellent post. I really appreciate your time.

Pamela Beason, Author said...

What a helpful, useful post--thanks, Joe. I am a PI as well as a writer, and I just want to add one thing--authors using PI characters need to keep in mind that PIs are NOT the same as police detectives. We often ask questions we don't know the answers to, and we can't drag anyone into an interrogation room, as much as we'd like to!

Beth Groundwater said...

Great post, Pat & Joe, and very helpful to us mystery authors. Thanks!

Joseph Giacalone said...

Thanks Beth, if you have any questions just let me or Pat know and I will help as best as I can.

Holli said...

As a former N.O. prosecutor and Louisiana appellate public defender, you do not know how much I appreciated this blog! I am one of those who cringe when I see the law, especially court scenes, portrayed inaccurately in novels and on T.V.. I rarely take artistic license with the law or legal issues in my own writing, because I have found the truth is usually stranger than fiction, and I hate it when an otherwise great story is ruined because of lack of research. Nice job explaining the key issues.

Holli Castillo
Jambalaya Justice

Joseph Giacalone said...

Hi Holli,
Thanks for the compliments! I'm glad you enjoyed it and let's hope we see more "reality" in fiction.