Monthly Archives: October 2016

Are you a cop?

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Lola batted her eyelashes and smiled at the man. “How about a date?”

He shrugged. “Maybe. How much?”

After a brief hesitation, she countered with a question of her own. “You a cop?”

“Are you kidding? No way. I hate pigs.”

“Okay. You give me a hundred bucks and I’ll rock your world.”

The man reached into his pocket and pulled out a pair of handcuffs. “Guess my world’s gonna stay steady tonight. Hands behind your back.”

“Hey! You lied! You can’t do that!”

“Already did. Now, you want me to recite your rights or you wanna do it for me?”

Is Lola right? Did Officer Smith entrap her when he lied about his identity?

Nope.

The police are allowed to lie. They do it all the time when working undercover or performing sting operations. I don’t know when or how the rumor started that they have to tell the truth when they’re asked whether they’re cops, but it’s entirely false. Police can lie about other things too. It would frequently be hard for them to do their jobs if they had to be honest all the time.

Lying does not constitute entrapment. In order for someone to successfully use the entrapment defense, she must prove that police enticed her to perform an illegal act she wasn’t otherwise inclined to do. If that undercover cop offered people a million bucks to sleep with him, a lot of people might be tempted even though they’d never previously considered prostitution. In Lola’s case, however, it’s only a hundred dollars. Plus she initiated the exchange, which is pretty good evidence that she was predisposed.

There are some limits to what police can lie about. If a suspect invokes her Miranda rights and asks to speak to a lawyer, the cops can’t grab a random colleague in a suit, put him in the interrogation room, and have him tell the suspect he’s an attorney.

One frequent lie used to good effect by police happens when there are two or more suspects. Each is questioned separately, and each is (falsely) told that his colleague had confessed and ratted him out. Suspects under those circumstances often confess in a vain attempt to save themselves.

An urban legend says that police have pretended that a Xerox machine is a lie detector, as shown in this scene from The Wire. I don’t know if that’s ever really happened, but police often do get creative.

 

Defending Yourself

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“Hey, Larry, nice haircut! Is your barber blind?” Frank laughed at his own joke and then smirked when Larry came closer. A couple of drinks must have skewed Larry’s judgment, Frank figured. The little runt forgot Frank was a pretty good boxer. Well, time to remind him. As soon as Larry got close enough, Frank laughed again. “I’m gonna smear the pavement with you, twerp.” To prove his point, he socked Larry solidly in the nose.

Larry crumpled. But then he got up, nose bleeding, and pulled out a pocketknife. He opened the largest blade and held it aloft. “Get out of here before I perforate you, Frank.”

Frank scoffed, danced to the right, and landed another blow, this one on the side of Larry’s head. When Larry fell this time, he knocked his skull against the edge of the bar. He twitched a few times on the ground before going still.

Frank looked up to see the bartender pointing a gun at him. “Sit tight,” said the bartender. “Police are on the way.”

“Yeah, whatever. It was self-defense anyway.”

Frank’s sounding awfully cavalier there. He’s going to wise up after he talks to a lawyer, because chances are he won’t be able to claim self-defense.

Self-defense is an old defense, one of the many that Americans adopted from England. It’s based on the premise that a person shouldn’t be held criminally liable for protecting himself, and it’s fairly commonly used. But there are rules as to when it applies.

One of those rules is that a defendant can’t use the defense if, like Frank, he initiated the violence. So Frank is out of luck already. But there are other limitations too.

  1. The person must reasonably believe he had to use force to protect himself. It’s okay if he was mistaken in the belief (“I thought I saw him reaching for a gun”) as long as the mistake was reasonable.
  2. The amount of force used must be proportionate to the threat. You can’t shoot someone who’s threatening to slap your face.
  3. The threat must be imminent. You can’t use this defense if the other person says, “Someday I’m going to kill you!”

So one corollary to the defense is that the threatened person must retreat if he can safely do so. It sounds as if Frank could have walked away from Larry, so he’s again out of luck. But there are two exceptions to this. One is called the castle exception, which holds that a person need never retreat in his own home. The other exception is recognized in some jurisdictions but not others, and is most popularly called the stand your ground doctrine. It holds that a person need not retreat even if he can safely do so, and it received a lot of attention during George Zimmerman’s trial for his fatal shooting of Trayvon Martin.

Self-defense extends to the right to protect other people. If Alice sees Bob being beaten by Carl and punches Carl in order to save Bob, she may be able to use the defense. But only if Bob himself could have used it! So if instead the bartender saw Larry pull the knife on Frank and, unaware that Frank started it, shot Larry, the bartender would be out of luck. So be careful before rescuing someone!

Self-defense does not include the right to protect property. You can’t use deadly force to keep someone from stealing your stuff.

This defense allows a lot of plot possibilities. Was your character reasonable when he mistakenly believed the other guy was reaching for a gun? Was the threat truly imminent? Did your character use an appropriate degree of force under the circumstances? Who intervened in the fight and did she have a right to?

As for Frank, he better hope that Larry pulls through. Otherwise he’s looking at a long stint in prison.

When a character goes missing

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If you write mysteries or suspense novels, one of your characters might very well go missing. Now, maybe nobody notices or nobody cares. That may be a plot point in itself. But what if someone’s looking for the guy? Then they might file a missing persons report.

Here are a few things you should know about that process.

First, the name itself: missing persons report. It’s grammatically awkward. By rights, it should be missing person or missing person’s report. This was a point of discussion with the editor for one of my recent books. But while she had the grammar correct, legal agencies use the specific term missing persons–without an apostrophe. Here’s a relevant FBI page, for example. I haven’t been able to dig up any information on the origin of the term. Bad translation from French, maybe. But there it is.

The next thing you need to know is that—quelle surprise!—rules and policies vary by jurisdiction, so make sure to check what’s accurate for your setting.

Reports can be made via phone (911 or police nonemergency number) or in person at the police station. The report will often go into a statewide system and perhaps also into a federal system; there are separate systems for children and adults.

There is a general belief that you can’t file a report until the person has been missing for some set period of time, like 24 hours. However, that’s not true. Police will always take a report right away if the person is a child, if he’s an adult of special concern (such as someone with dementia), or if the circumstances suggest the guy hasn’t just gone for a walk. Under federal law, police must immediately take a report in all cases where a person is missing. In California, for example:

There is NO waiting period for reporting a person missing. All California police and sheriffs’ departments must accept any report, including a report by telephone, of a missing person, including runaways, without delay and will give priority to the handling of the report. [source]

When is a person considered missing? Here are the LAPD’s criteria.

Large agencies may have a special missing persons unit. The LAPD unit, for instance, investigates 200-300 cases per month.

If the missing person is a child who has been abducted, authorities may issue an Amber Alert. The criteria for these are fairly narrow. Some states have Silver Alerts for certain missing adults, but this is not as universal as the Amber Alert.

What happens if your character never does show up? Again the rules vary, but he can often be declared legally dead after seven years. The time period will be less if he was known to be in peril at the time of his disappearance—for instance, if he was aboard a plane that crashed into the ocean or present at the scene of a natural disaster. And yet, there are occasions when such people show up later, very much alive, which can create some complicated legal problems. But also some very nice plot twists.

 

You have the right to remain silent

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In 1963, a young laborer with a substantial criminal history was arrested for kidnapping and raping a 17-year-old girl. After two hours of interrogation, he confessed. But when his case went to trial, his lawyer argued that because the police didn’t tell the perpetrator that he had the right to refuse to talk and the right to a lawyer, his confession should be thrown out. It was, the lawyer argued, not truly voluntary. Eventually the US Supreme Court agreed, holding that custodial interrogation is inherently coercive. In order to counteract some of that coercion, before suspects can be interrogated while in custody, they must be informed of their rights. That young laborer’s name? Ernesto Miranda.

We all know what the Miranda rights are. You can probably recite them. Here’s the language that sets them out in the decision itself:

The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.

Despite our familiarity with this ruling, many people hold misconceptions about it. So here are some important things to know:

  • The rights don’t need to be recited exactly in the words the Court used. There is no specific required wording as long as the main points are clearly and adequately covered.
  • Research has questioned the extent to which children, English learners, and some of the disabled understand the meaning of the warnings.
  • Even if a suspect has been warned, a confession may be inadmissible if extra coercion was applied.
  • A suspect can waive his Miranda rights and choose to speak to police without an attorney present. An astonishing percentage of suspects—over 80%—do so.
  • Police only need to give the warning prior to custodial interrogation. This means no warning is necessary if the suspect isn’t in custody—if, for example, police have briefly detained her on the street or at home to ask a few questions. And it doesn’t apply if police have no intention of interrogating the suspect. I know someone who was detained overnight in the Alameda County drunk tank for being obnoxiously drunk at a baseball game. When they let him out the next morning, he loudly complained that they had never Mirandized him. I pointed out that the last thing they wanted to do was interrogate him—they wanted him to shut up, in fact—so they didn’t have to read him his rights.
  • SCOTUS has carved out a number of exceptions to the Miranda requirement, the most important being the public safety doctrine.

As for Miranda himself, he was retried and reconvicted even without his confession. Four years after he was paroled, he was killed in a bar fight. I assume that upon arrest, the assailant was read his Miranda rights.