Wyle‘s “voice” as a novelist is the product of almost five decades of reading both literary and genre fiction.  It is no doubt also influenced, although she hopes not fatally tainted, by her years of practicing law.  Her personal history has led her to focus on often-intertwined themes of individual identity, family, communication, the impossibility of controlling events, and the persistence of unfinished business.

 

Wyle and her husband have two essentially-grown and wildly creative daughters, as well as a sweet but neurotic dog.

Guest Post – Beyond the Obvious: Hidden Dramatic Possibilities in Legal Thrillers

We’ve all seen dramatic courtroom scenes of furious cross-examination and dramatic closing arguments. Some of the ones you’ve seen are not altogether accurate: for example, almost any judge will intervene to protect a witness who’s being badgered by opposing counsel, and witnesses almost never break down and confess guilt they’ve previously denied (though plenty of them do break down, emotionally speaking). But my primary point is different. Wouldn’t it be fun to write about some of the lesser-known yet potentially aspects of criminal law?

Here are just a few ideas along those lines.

Did you know that alcoholism and other substance abuse are a serious problem in the legal and even the judicial communities? How about making your judge a secret drunk? The prosecutor and the defense attorneys may well know this secret. How would they make use of it? One could be subtly (or not so subtly) blackmailing the judge to get favorable rulings; the other could be trying to talk the judge into seeking the help that exists specifically for lawyers and judges with such problems. (And don’t be predictable about your hero and villain. If your story focuses on the challenges of catching criminals, maybe the prosecutor should be the bad guy. If your defendant is unjustly accused, maybe it’s the defense attorney who’s willing to use any tool, even blackmail, to win.)

Are you itching to write about a jury trial? Jury trials have all sorts of dramatic possibilities – but keep in mind that they’re increasingly rare. Indeed, most criminal cases don’t go to trial at trial, even before a judge sitting alone in a “bench trial.” Instead, they’re settled by plea bargains. So if your case is going to a jury, you might want to set up that fact by showing why the usual plea bargain doesn’t happen. Maybe the case is high-profile enough that one or both lawyers hope to make favorable headlines with it. Maybe the defendant is stubborn in proclaiming innocence, and/or refuses to understand how the legal system works and why a plea bargain would be advisable. Maybe there’s a comedy of errors that prevents the prosecutor’s offer of a plea bargain from being communicated or accepted.
By the way, if the defense is going to revolve around such legal points as the prosecution’s failure to prove a case beyond reasonable doubt, and/or if the defendant would make a terrible witness and the defense lawyer hopes to keep him/her off the stand, it may be foolhardy to demand a jury trial. It takes some work and some luck (including at the juror selection stage) to get a jury that accepts the “beyond a reasonable doubt” standard wholeheartedly enough that they’ll acquit a “probably guilty” defendant.

Anyway, let’s say you’ve got your jury trial. Here are a few under-explored angles:

–Jury instructions: If you’ve actually sat on a jury, then unless that court has adopted what are called “plain English” jury instructions, you might have been faced with verbiage like this, read aloud by the judge and possibly included in a binder that goes into the jury room:
Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.Or take this example from New York:

IMITATION CONTROLLED SUBSTANCE means a substance that is not a controlled substance, which by dosage unit appearance, including color, shape and size, and by a representation, is represented to be a controlled substance. Evidence of representations that the substance is a controlled substance may include, but is not limited to, oral or written representations by the manufacturer or seller, as the case may be, about the substance with regard to: 1. its price, nature, use or effect as a controlled substance; or 2. its packaging in a manner normally used for illicit controlled substances’ or 3. markings on the substance.Throw a few dozen such instructions at the jury, and you could end up with their farcical and chaotic attempts to make sense of what they’ve been asked to do. Or, for a more serious tone, they could misunderstand some crucial element of the instructions and convict where they should acquit. (If you want to be sure the jury would get traditional, convoluted instructions, set your story before the 1970s, or check the history of jury instruction reform in your chosen court system.)

–Alternate jurors: In most jury trials, the court will seat at least one or two more jurors than are actually required, in case somebody gets sick or has some sort of crisis arise. The longer the trial is expected to run and the more important the case is deemed to be, the more alternates there will be. The alternates trot in and out of the courtroom with the other jurors and hear all the evidence, arguments, and instructions. And then they get to do absolutely nothing with all that information, unless the jury loses a juror – at which point an alternate is seated and the jury’s discussions (“deliberations”) are supposed to start over again. Your protagonist could be an alternate juror, and maybe the only juror who has a firm grasp of what the evidence means. Maybe your alternate is so determined to take part in deliberations that s/he tries to arrange for some juror to depart. . . .

–Jailhouse lawyers: Some prisoners with lots of time on their hands spend it filing one petition after another. Some end up becoming unlicensed substitutes for lawyers, offering or selling assistance to other prisoners. If a jailhouse lawyer is giving your defendant advice that contradicts the defendant’s lawyer’s approach, things could get interesting – whichever “authority” is actually right.

I can’t discuss all the possible less-exploited story opportunities or even list them, but here are a few more you could explore: appellate arguments with constantly interrupting judges;  lawyers representing lawyers; what lawyers do when a witness unexpectedly lies; a judge doubting the guilt of a defendant who pleads guilty; a defendant feeling compelled to falsely plead guilty; juvenile justice (no trial by jury, particularly galling probation conditions); solitary confinement (juvenile or adult); pressure on a parent to admit a crime for “treatment” purposes, an admission that could lead to the loss of parental rights; jury nullification (a jury’s power to ignore the law in what the jurors see as the interests of justice); a friendship between lawyers threatened by what happens in a case; witnesses testifying based on false memories (for example, memories contaminated by previous questioning and/or prior hypnosis); unavailable or incompetent interpreters; or the terrible toll that indeterminate sentencing (“15 years to life” can take on a prisoner emotionally.

Oh, and if you want to learn more about any of these (here it comes), I have written a book that might come in handy. Closest to the Fire: A Writer’s Guide to Law and Lawyers is available in (a hefty) paperback and in ebook format at all the usual online stores.

Happy writing!