Author Archives: Kim

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.

It’s murder

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I’m giving you a gift today. It’s a lovely little plot opportunity, courtesy of an important but rarely understood aspect of US law. That gift? The felony murder rule.

Here’s a succinct version of the law:

If a defendant causes a death while committing a felony, the defendant is liable for murder—regardless of whether he intended to kill anyone.

It’s a vital twist on homicide law because usually murder requires intent to kill. But under the felony murder doctrine, if our defendant causes a death in the course of committing a felony, he can be charged with murder instead of manslaughter. The prosecutor won’t have to prove intent to kill, and the defendant will face a harsher sentence. In fact, historically those convicted under the doctrine could be sentenced to death.

But wait! There’s more!

The felony murder doctrine also makes a person liable for deaths caused by his colleagues. So if Alice and Betty rob a liquor store, and Alice shoots the clerk and kills him, they can both be charged with felony murder. Even if Betty wasn’t aware the gun was loaded or had begged Alice not to kill anyone. And of course a savvy prosecutor might use this to his advantage, especially if he has it in for Betty. He can make a deal with Alice: she pleads out to a lesser charge and, in return, testifies against Betty in a first-degree murder case. Result? Alice spends a few years in prison while poor Betty’s locked up forever. Fair? Maybe not. But perfectly legal and not uncommon. Think of the plot possibilities.

It gets even better. Suppose Alice is soft-hearted and carries a realistic toy gun rather than a real one. But when she pulls the gun out, the clerk takes one look and drops dead from a heart attack. Still felony murder. Alice and Betty spend the rest of their lives in prison.

Oh, but I can do you one better. Now suppose Alice and Betty walk into the liquor store with the toy gun, but this time the clerk pulls out a very real gun and blows Alice away. Due to the self-defense doctrine, the clerk’s very unlikely to be convicted of anything. But Betty? You guessed it: felony murder. Same goes if it’s a cop who shoots Alice. The cop has probably exercised appropriate use of force, but Betty’s out of luck.

The Supreme Court held that people can’t be sentenced to death if they were only minor participants in the crime. But that doesn’t mean they have to actually pull the trigger. If they were major participants and indifferent to human life, they may still be eligible for the death penalty. And in any case, they can still get life or life without parole, depending on the jurisdiction.

Some states also limit the crimes for which the doctrine applies—generally to inherently violent or dangerous ones. And most say that the death must be reasonably foreseeable.  But the doctrine can be applied pretty broadly. Consider, for example, a recent case in which a shoplifting suspect was chased by a motorcycle officer; the bike crashed and the officer died. The suspect is facing life in prison. Or another recent case in which a group of armed young men allegedly chased a couple. The victims ran onto a busy road and were struck by a pickup truck, injuring the man and killing the woman.

Suspects rarely know about felony murder—a circumstance police can use to their advantage. If the cops are interrogating Betty, who doesn’t know about the doctrine and has been unwise enough not to lawyer up, they might easily get her to admit to the robbery. She thinks she’s getting herself off the hook for murder by making statements to the effect that all she intended to do was rob the store. But in doing so, she’s implicating herself for felony murder.

There. It’s a good gift. Use it well!

 

Wouldn’t it be grand?

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Like much else that’s weird and complicated about American criminal justice, we can blame the English for our jury system. Thanks, guys. Among many other things, we inherited two kinds of juries: petit (pronounced petty) and grand. And no, that doesn’t indicate that one kind is only interested in stupid things while the other wears diamonds and lives in a mansion. The names are French—small and large—because back when they were invented, members of the English nobility were speaking French. Which tells us how old the practice is; it dates all the way back to the Norman Conquest. And the names simply refer to the fact that grand juries are bigger than petit (traditionally, 23 members instead of 12).

Here’s what happened back in 1166. As part of his attempt to unify England, King Henry II created royal courts that rode around, hearing cases in various jurisdictions (shires). These were called circuit courts, a name that carries over into our own federal judiciary today. Circuit courts helped solidify Hank’s rule as well as bringing more uniformity to English law (creating, in fact, a common law). But the process created problems. One of those was that a period of time passed between court sessions in a particular place, and the judge who eventually showed up had no clue what had gone down in his absence.

But Hank had a solution for that too. When the judge appeared, a group of the most prominent local men would appear in front of the sheriff and report—under oath—all the crimes that had occurred in the interim. Jury comes from the French word meaning to swear. So from the beginning, the grand jury’s job was to consider evidence and initiate criminal proceedings.

Jury roles evolved over the centuries, but grand juries made their way into the Magna Carta in 1215 and the English Bill of Rights in 1689, and then hopped the pond and settled into the 5th Amendment to the US Constitution. Settled pretty firmly, in fact, because while the UK has pretty much abolished them and the rest of the world either dumped them or never adopted them to begin with, the US still uses grand juries. (So does Liberia. That’s it.)

How they’re used varies by jurisdiction, as does the size of the grand jury and the manner in which it’s chosen. One thing is universal, however: unlike petit juries, grand juries do not decide guilt.

So what do they do? Thanks to the 5th Amendment, the prosecutor must present evidence before a grand jury in all federal cases. The grand jury then decides whether there’s sufficient evidence to constitute probable cause. If so, it issues an indictment  (yes, more French there) containing the formal charges, and the case proceeds. If not, the initial charges are dropped. The prosecutor can either give up or try again (with the same or different charges; double jeopardy protections don’t apply).

Now, for various complicated reasons, the grand jury clause of the 5th Amendment doesn’t apply in state proceedings. A few states, like New York, require them anyway. Most others keep it as an option. The prosecutor can choose to go before a grand jury or can instead go in front of the judge, a proceeding called a preliminary hearing (or prelim). The latter course of action is much more common, but for strategic or political reasons DAs do occasionally choose the grand jury route.

Grand juries are usually big—23 is a common size. They have the power to order (subpoena) people to appear before them for hearings and, to some extent, the power to conduct investigations.

A few jurisdictions such as California also use civil grand juries. These generally investigate potential government misconduct.

For hundreds of years, people have referred to criminal grand juries as the Sword and the Shield. Shield because they can protect citizens from malicious prosecutions; sword because they have the power to bring justice against wrongdoers. It’s debatable how well they serve either of these functions, especially today. But they’re still interesting creatures and—this is where you come in—serve as wonderful potential plot points.

I fall to pieces….

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Today’s subject may seem a bit esoteric, yet it’s vital to understanding the US criminal justice system. The subject is fragmentation.

Most countries have a national system of criminal justice. A single set of laws, police, courts, and corrections, all administered at the federal level. Oh, but not us. We can blame the English, who brought with them a complicated system built from their history as many tiny and diverse kingdoms unwillingly united under the Norman Conquest. We can blame our own history too—separate colonies, a long and shifting frontier, and varying views of the role of federalism. What we ended up with was a tangle.

Let’s look at law enforcement, for example.

Suppose the police were called to the street outside my home here in California. Those police might be my local city police. Because I live near a university campus, they might also be campus police (a state agency). They might be sheriff’s deputies—a county agency. They might work for any one of a variety of specialized state agencies, including highway patrol, fish and wildlife, park service, firearms, gambling patrol, department of motor vehicles, and many more. They might work for one of many federal law enforcement agencies. FBI. ATF. DEA. Customs. US Marshals. FAA. Secret Service. And lots, lots more. Under very specific circumstances, that cop outside my door may even work for the international agency, INTERPOL.

There are currently over 17,000 separate police agencies in the United States, with roughly two-thirds of them being municipal (city) police departments.

And that’s just the police! We also have courts at the federal and state (and sometimes local) level. We have laws at varying levels too. And corrections may be local, state, or federal. And you know what? Each agency has different rules and policies.

This is the reason behind my frequent warning to check with your relevant jurisdiction before writing. Just because one agency does things a certain way or you’ve seen it done a particular way on TV doesn’t mean that’s how it’s done in your setting. I’ve seen authors mess this up many times. It throws me out of the story and indicates sloppy research.

Such a complex situation has bad points and good. On the downside, it leads to inconsistencies and misunderstandings. It sometimes causes friction between members of different agencies. Sometimes agencies may even have trouble communicating with one another due to different technology or policies or resources. Or plain old stubbornness.

I should note, though, that contrary to what you’ve seen in movies, agencies generally cooperate with each other. The other day, a morning car wreck happened along a busy street near the university, junior high, high school, and elementary school. And it happened right when everyone was dropping kids off or going to work. My city police responded, but so did campus police and the highway patrol (which has jurisdiction on all public byways), and they worked together to deal with the problem. Similarly, many of the small towns in my area have limited resources for dealing with homicides, which are rare. So when one does occur, they have an agreement that allows them to call in homicide detectives from our county’s largest city.

Fragmentation has a major upside, which is probably the main reason it has continued so long here. That’s the possibility of local control. Washington, DC, doesn’t know what’s going on in my small city and mostly doesn’t care. Solutions and policies crafted in Washington may not be very effective in California’s Central Valley. But our local police can be very responsive to our particular concerns. They know, for instance, that traffic becomes problematic during the first couple weeks of the school year, and they increase patrols near schools (One particular motorcycle cop must write dozens of tickets daily. I always see him pulling people over.).

Now, some could argue that federal systems could also understand local issues if they had local administrative offices. But if my community is unhappy with our police, we can talk to our city council members and have them put pressure on the chief to fix things—or be fired. That couldn’t happen as easily with a national system. Of course, local control can be a serious problem too, depending on who’s doing the controlling. Historically, for example, some local police departments not only didn’t interfere with violence and intimidation of African American residents but may even have encouraged and participated in those acts. This has sometimes resulted in federal agencies stepping in.

Fragmentation can also be a challenge or a boon to writers. As I’ve said (many, many times!) it requires careful, specific research. Yet it can also be a source of wonderful plot points. You know…. Jaded federal agent from the Big City comes to the Small Town to investigate a crime. Romance (or dastardly deeds, or humor) ensues. Or hapless hero assumes what’s legal back home is also legal on vacation, but it’s not. Romance or dastardly deeds or humor ensue.

 

Bail me out

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If you drive past your local jail or courthouse, chances are you’ll find a cluster of similar businesses nearby: bail bondsmen. Some of the ones in my county have rather fanciful names: Bad Moon. Bad Boys. Aladdin. Redemption. Underdogg. And my personal favorite, ABBA. I’m wondering whether the last one assists people who snapped after overdosing on 1970s Swedish pop music, and I’m hoping they perform their services with an appropriate soundtrack.

Last week I wrote about bail in general; this week, let’s talk about bail bondsmen.

I’m going to begin with a warning to—as usual—be aware of the rules in your jurisdiction. A few states have banned bail bondsmen altogether because the practice discriminates against poorer defendants.

The basic operations of bail bondsmen are fairly simple. Let’s suppose Wanda has been charged with arson of an inhabited structure. She’s facing some serious prison time, so to make sure Wanda doesn’t wander—and fail to show up for trial—her bail amount will probably be high. In California, the presumptive amount may be $250,000. Now, few of us have a quarter million dollars sitting around, and Wanda’s no exception. So what can she do to keep from languishing in jail while waiting for trial? Go to a bail bondsman, of course.

What’s going to happen is Wanda (or her friends or family members) will pay the bondsman 10% of her bail amount (this percentage varies, but 10% is most common). In return, the bondsman will post a bond with the court, ensuring Wanda’s appearance at trial. If Wanda shows up, great, although she’s still going to be out that $25,000 because that’s the bondsman’s fee for services. That’s true even if she’s eventually found not guilty. If Wanda flees, the bondsman will have to pay the court the full $250,000. Naturally, he’s not going to be happy about that. He’ll either hunt down Wanda himself or hire a bounty hunter to do so, and if they eventually capture Wanda and drag her back to jail, the bondsman will get his money back.

In theory, bail bondsmen are a good idea because they help lower income people stay out of jail while awaiting trial. In practice, though, the process means poor people—even innocent ones—are going to have to pay to remain free, while wealthier defendants who can afford their own bail won’t pay anything in the long run because they’ll eventually get the full amount of their bail back. For this reason, a few states have banned bail bondsmen and instead permit defendants to post 10% of their bail directly to the court. If those defendants show up, they’ll get all the money back. If they abscond, they lose the 10% and become liable for the full amount of their bail.

Who can become a bail bondsman? Many states have no training requirements. Generally, the primary requirement is that the bondsman be licensed as a small business. Other states have rules about criminal history, education, and other criteria.

I think the bail bondsmen’s potential as plot fodder is underappreciated. If you want to watch a movie that made good use of this idea, consider Midnight Run.

Bailed

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When someone is charged with a crime, we’re faced with a bit of a problem. On the one hand, our system presumes that a suspect is innocent until proven guilty. Therefore, suspects who have not been convicted should remain free while waiting for their cases to go to trial. On the other hand, some of those suspects are in fact quite guilty, and now that they’ve been caught, some of those guilty parties would no doubt abscond if given the opportunity. Therefore, we’d better lock them up while they await trial.

The solution to this conundrum, like many other components of our criminal justice system. comes to us from Merry Olde England. That solution is bail.

The basic concept of bail is simple. An accused person gives the court what amounts to a security deposit. If he shows up on his appointed court date, he gets the deposit back (regardless of whether he’s convicted or acquitted). If he doesn’t show up, he forfeits the money. In principle, bail insures against fleeing suspects while also allowing people to continue in their lives, retain their freedom, keep their jobs, and better assist in their own defense.

Bail rules vary across jurisdictions (big surprise, huh?). Generally, a judge has guidelines to follow based on the seriousness of the offense—not based on the defendant’s net worth. The prosecutor may request a higher than usual bail amount if the defendant is a particular flight risk. Bail might be denied altogether if the defendant is likely to flee; for instance, if he has few ties to the community or is a citizen of another jurisdiction. In some cases, bail might be denied based on the seriousness of the offense. In California, for example, people charged with first-degree murder cannot be granted bail.

If you read the US Constitution, you might notice that the 8th Amendment begins with this phrase: “Excessive bail shall not be required….” Federal courts must abide by that rule—although of course the Amendment doesn’t specify what standards should be used to determine what’s excessive. States, on the other hand, can ignore that clause entirely. That’s because of something called the Incorporation Doctrine—a long story we’ll save for another day. For now, suffice it to say that some small pieces of the Bill of Rights apply only to the federal government, and this is one of those pieces. So if a state wished to eliminate bail altogether, it could do so, although that would be an unwise decision leading to a crisis in jail overcrowding.

If a defendant is not granted bail or cannot afford it, he will remain in jail until trial. In practice, this means that poor people get locked up, while wealthier defendants tend not to be. Bail is controversial due to this aspect, and many critics have advocated for bail reform.

Defendants may also be released without bail. This tends to happen when the charges are relatively minor and the flight risk is small due the defendants’ strong community ties. In these cases, defendants will be released on their own recognizance (ROR for short). Once the defendant promises to refrain from criminal activity and to show up for court, he gets to go home.

In most places, defendants who can’t afford the full bail amount can hire the services of a bail bondsman. I’ll talk more about them next week.

 

 

Book ’em

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I used to watch Hawaii Five-O when I was a little kid. It wasn’t my favorite show of its type—that spot was reserved for Emergency! (ah, Randolph Mantooth!)—but I do remember two things well about the Five-O. One, of course, is that catchy theme song. If that’s not the top TV show theme of all time, it’s certainly in the top five. The other thing I remember was Jack Lord’s oft-repeated phrase, Book ’em, Danno.

But what does that mean?

As the name suggests, booking is the process of adding a suspect to the books—that is, formally entering him or her into the criminal justice system. It generally happens after a person has been taken into custody—arrested—but may sometimes occur after a citation, when the person will not remain in custody. Once upon a time, the suspect’s information was recorded in an actual ledger book. Nowadays it’s all electronic.

A number of things happen during booking. The suspect’s name and other personal information are recorded, as are a few details about the criminal charges. Their mug shots are taken—a practice police have been following since roughly the 1840s. The suspect gives up all personal property, which is recorded and stored until his release, and usually gives up his own clothes for lovely jail attire. He’s fingerprinted. Eventually those prints will be entered into a national database. He’s screened for any physical or psychological ailments, and jail staff will conduct a body cavity search to check for contraband. Jail staff will check the system to see if he has any outstanding warrants. And then they’ll ask him a bunch of questions—not necessarily pertinent to the crime—to determine how big a risk he is and where to classify him in the jail. A DNA sample may be taken. In some jurisdictions, bail and a court date will be set. He’ll be given the chance to call a lawyer, family member, or bail bondsman.

If the suspect is low risk, he may be released on his own recognizance at this point. That means he goes free after promising to appear in court. Or he might make bail. But if he’s a big flight risk, he won’t be granted bail—and even if bailing out is an opportunity, he might not have the money for a bail bondsman. In that case he’s going to be locked up. He’ll be given some kind of orientation to the jail rules, either by an officer or via video. Then he’s going to spend some time behind bars.

Booking is not a fast process. Depending on the jurisdiction and whether it’s been a busy night, the whole thing could take four hours or more.

Incidentally, once someone is booked, that arrest record is permanent. Even if the charges are later dropped or he’s found not guilty, the arrest record is there forever. And his fingerprints (and maybe DNA) are in the system, ready to be discovered years later by an author seeking a clever plot point.

 

 

 

Deadly force

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Today’s topic has been on a lot of minds lately: police use of deadly force. I’m not going to discuss the hottest issue, which has to do with aspects of racial bias. I’m also not going to address the equally important issue of deadly violence against police. Instead, I’m going to tackle a basic question: When can police use deadly force?

It’s weird—how many jobs allow a person to take another person’s life without going to prison? I think even the most ardent pacifist or civil libertarian would agree that police officers should be allowed to use deadly force under some circumstances. And even the most hard-nosed tough-on-crime person would agree that we ought to have clear and strict standards for the use of deadly force.

The old rule, going back to Jolly Olde England, was that police could use deadly force to stop a fleeing felon. But that rule evolved back in the days when the force in question was coming from an arrow or a blade, not a semiautomatic rifle. And back then, all felonies brought a potential death sentence.

The US Supreme Court narrowed the rule in 1985 due to a case in which an officer shot and killed an unarmed 15-year-old burglar who was trying to climb a fence. In Tennessee v. Garner, the court held that police could use deadly force to stop a fleeing felon only when that force is necessary to stop him and police reasonably believe the suspect poses a serious threat to police or others. In other words, if cops have a choice between shooting an unarmed suspect whom they don’t believe is dangerous or letting him escape, they need to let him escape.

Even when someone is not suspected of a felony or isn’t fleeing, police can use deadly force if they reasonably believe the person poses  a serious risk to them or to others. This isn’t actually a special rule for police; it’s just a specialized application of the general self-defense rules.

But all this raises two questions. First, what is deadly force? Basically it’s any force that could reasonably lead to a person’s death. Firearms are always going to count as deadly force, even if the person using them attempts to aim for non-lethal injury. Even the best sharpshooter can’t always hit an exact spot on a moving target, and anyway, a person could potentially die from shock or blood loss even if not hit in a vital organ. Besides, as a matter of practice, police are taught to aim for the center of the body because it’s an easier target than the limbs.

You don’t need a gun for lethal force, though. A blade would certainly do it. Explosives. A motor vehicle. Or a blunt instrument like a club or stick, depending on how it was used. Even a sharp pencil could be deadly force if it’s aimed at an eye or throat.

Sometimes other kinds of force can unexpectedly turn deadly. Choke holds, for example, aren’t supposed to be lethal but have resulted in many deaths, which is why quite a few police departments prohibit them. Some people have died from pepper spray. Several years ago, police in a town near me used a Taser on a motorcycle thief—who promptly caught on fire, apparently due to spilled gasoline. The suspect wasn’t injured, but he could have been. For the most part, things like pepper spray and Tasers are not considered deadly force even in the rare occasions when someone dies.

The second question is what happens when a cop thinks a person is dangerous but is mistaken. This happens all the time. It’s what happened to Tamir Rice, the 12-year-old who Baltimore police shot and killed because he was carrying a realistic-looking toy gun. It’s what the police officers claim happened in the case of Michael Brown, the 18-year-old shot in Ferguson, Missouri. And the rule is pretty clear: as long as police honestly and reasonably believe they or others are at serious risk, they’re justified in using deadly force, even if it turns out they were mistaken. Of course this leads to to a lot of situations where police say, “I thought he was going for a gun,” while others question police credibility. Some researchers also suggest that stereotypes about race and gender can play a part in police officers’ split-second determinations about whether someone is dangerous. That’s a valid issue of concern, but it’s a conversation for another day.

 

Letting the victims have their say

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The US criminal justice system was never meant to serve victims. This may seem harsh, but it’s the reality. After all, look at the names of criminal cases: People of the State of California v. Smith. United States v. Jones. Criminal law is a battle between the government and the defendant. The government is, at least in theory, representing the residents of that jurisdiction who have allegedly been harmed by the defendant’s actions.

I know what you’re thinking. The residents have been harmed? What about the victims?

The main answer is that the civil law system is for victims. If someone is injured by a criminal act, the victim can almost always bring a civil lawsuit against the offender, whether or not that offender has been criminally convicted. The standard of proof will be easier to meet in a civil case than in a criminal case, which means that even when a defendant is found not guilty on criminal charges, he can still be held liable in a civil case (as happened, famously, to both OJ Simpson and Robert Blake). Furthermore, if the defendant was convicted, that conviction can be used as evidence in the civil lawsuit.

But victims might not want to get involved in a civil suit for various reasons. And even if they win, the most they can get is an award for money damages—which isn’t going to do them much good if the bad guy’s broke or sitting in prison.

Victims often do take part in criminal cases as witnesses, but whether they testify and what questions they answer are completely within the lawyers’ discretion and intended to serve the lawyers’ needs. By the time cross-examination is over, some (but certainly not all) victims may feel even further traumatized by the process.

Some years ago, a new way for victims to participate in the criminal justice process arose: victim impact statements. These come after defendants are convicted and before they are sentenced. They allow the victims to address the court directly—without being questioned by attorneys—and talk about the impact of the crime on them. The statements are usually prepared ahead of time and read in court, although some jurisdictions allow some or all of the statement to be video recorded.

Victim advocates say that these statements are a powerful tool, allowing victims the psychological satisfaction of having had their say and also, perhaps, informing the court on an appropriate sentence. But the statements are controversial. Critics say they introduce unnecessary bias and emotion. Critics also claim that those who attack powerful or well-loved victims are more likely to receive harsher punishment than those whose victims were already marginalized. If a homeless man is murdered, for instance, who will appear in court to talk about the effects of his death? But does that mean his life is less valuable than, say, a wealthy person with a large family?

What the sentencer (usually the judge) does with the victim impact statement is entirely discretionary. The sentencer might ignore it. Or the sentencer might take it to heart and award the maximum allowable punishment.

Incidentally, from an author’s perspective, a victim impact statement could make for a wonderfully emotional scene. It might also be a good way to allow otherwise silent characters to talk about their lives and feelings, so it could serve as an expository device.