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 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.