Category Archives: Criminal law

The Sandusky Trial Through a Writer’s Eyes

The trial of Jerry Sandusky, a former assistant football coach at Penn State, is underway. scales of justiceSandusky is charged with 52 counts of sexual abuse involving ten boys over a period of fifteen years. Sandusky has consistently maintained his innocence.

A case of this type spotlights all the issues involved in prosecuting allegations of child abuse in which the incidents are alleged to have occurred many years before the trial takes place. These issues produce conflict, the type of conflict that – if you understand the issues – can energize any trial scene that you may seek to bring to life.

Here are some examples of the conflicts posed by such a case:

Credibility of the victims. It is standard fare in any trial to challenge the credibility of the opposing side’s witnesses. In a case like this, there are some unique areas to explore: the failure of the victims to report the alleged abuse, often until years later; inconsistencies in any prior statements, such as statements made to police, to prosecutors, or to a grand jury; a witness’s financial interest in the outcome of the case. It has been reported that some of the witnesses in this case have retained civil attorneys, possibly intending to file civil suits at the conclusion of the criminal trial.

A key factor in a case like this is the difficulty witnesses may have in testifying. Trials are public and victims of sexual abuse often feel humiliation and embarrassment when revealing intimate details about what occurred. In this case, the witnesses may have denied to themselves, and possibly to others, that anything like this ever happened to them. The defense will argue that a witness’s lengthy silence bears on his credibility.

A point in the prosecution’s behalf: strength in numbers. The witnesses are relating factually similar accounts of what happened and the accumulation of such detail will be hard to overcome. On the other hand, the defense is sure to argue that the accounts are similar because, they will assert, the witnesses were coached.

Victims vs. Accusers. It is not unusual in any criminal case to hear prosecutors refer to the “victim” while the defense attorney refers to the same person as “the complainant.” Already in this case, in opening statements, the defense has admonished the jurors to view the witnesses as “accusers” rather than “victims.”

Use of victims’ photos. In murder cases, defense attorneys often try to prevent the prosecution from showing the jury a photo of the deceased on the theory that what the victim looked like is irrelevant to the defendant’s guilt or innocence and that the intent of the photo is to generate sympathy for the victim.

In this case, the victims were children at the time of the alleged offenses and are now adults. The court allowed the prosecution, in opening statements, to show the jury photos of these witnesses at the ages they were when the crimes are said to have occurred. The defense acknowledged that fighting these charges will be like climbing Mt. Everest.

Vulnerability of victims. Not only were the victims in this case young at the time of the alleged abuse, they belonged to an organization called Second Mile, a nonprofit established by Jerry Sandusky to help underprivileged youth. The prosecution will undoubtedly argue that the defendant used this organization to troll for victims. The defense will counter that the accusers loved the summer camps, the gifts they received from Sandusky, the tickets to Penn State games, and other perks, and are now seeking to reap financial benefit as a result of the charges against their former benefactor.

Lack of physical evidence. When a victim promptly reports an act of sexual abuse, the police may be able to gather all kinds of physical evidence including DNA, hair and fibers, fingerprints, shoe prints, etc. In a case like this, where the alleged acts of abuse were not reported until years later, there usually is no physical evidence, or at least no scientific evidence to support the charges. This is where witness credibility becomes the crucial factor in the outcome of the case.

Mental defense. There is evidence that the defendant wrote letters to some of the witnesses when they were children, and kept journals about them. The defense is seeking to introduce testimony of an expert to say that Sandusky suffers from histrionic personality disorder, that is, a need to be the center of attention. It is said that this particular disorder affects only 2 to 3% of the population and that it is not associated with pedophilia.

If the court decides to allow the defense expert to testify, you can expect the prosecution to produce one or more experts to debunk the theory. A trial can be enlivened or deadened by a battle of the experts.

What this means for writers. If you watch the reports of this trial closely, you will see how witnesses handle the stress of testifying in a case like this, and how they respond to rigorous cross-examination. There will be arguments among the lawyers on admissibility of certain types of evidence and, as I mentioned, there may be a battle of the experts. You may get to see the defendant testify and, if he does, the cross-examination will be extensive.

Each side in a criminal case – and this one is no exception – is crafting a narrative but with very high stakes: the witnesses are real and the defendant’s liberty is at issue. You don’t get more drama, more conflict than this.

I’d love to hear your thoughts on whether cases in the news ever inspire your writing.

When A Child Has To Testify At Trial

child witness

Photo by Anita Peppers

A central character in my novel in progress is a young boy who has to testify against someone he loves. In the course of this ordeal, he confronts the stress of dealing with the criminal justice system. What impact does that have on him?

If you are writing a story or a novel that involves a child witness in a criminal case, it is important to understand that the time-frame of your story may impact how the child would have been treated by the police, the prosecutors, and the court system. You will want to understand how police and prosecutors can do things well, and how they can mess things up.

(You do need conflict in your story, don’t you?)

Changes in how child witnesses are handled

My book is set in the 1980s when prosecutors and police officers did not, for the most part, have the resources that are available today to work with child witnesses, resources such as child advocates, child advocacy centers, and child interview specialists. Instead, the child who was the victim of a crime or who witnessed the commission of a crime had to rely on the interviewing skills of the detective and the prosecutor assigned to handle the case. These folks, while well-intentioned, may have had little or no training in working with children and may even have been insensitive to the trauma that such an experience could inflict on a child. Also, in those days, there was generally no alternative to having the child testify in open court in the presence of the person accused of the crime.

Before a witness ever testifies at trial, he (or she) often has to tell what happened to more than one person: the officer on the scene, the detective assigned to the case, the prosecutor, perhaps the grand jury, and then the judge and jury at trial. So in addition to the trauma associated with the crime itself, a witness – even a child – may have to relive those details multiple times.

Then there is the trial itself. Many adult witnesses are terrified of going into court and facing the person who is charged with a crime. Imagine the fear a young child may feel sitting in an adult-sized witness chair, next to a judge wearing a black robe, facing the accused, and a jury box full of strangers listening closely to his every word.

A lot has changed since the 1980s. Prosecutors’ offices and police departments often have child advocacy experts on staff who are trained to question children who have witnessed or been victimized by crime. Many localities have child advocacy centers where children can be interviewed in a non-threatening environment. There is substantially more training for all professionals – lawyers, law enforcement officers, and judges – who encounter children who may have to testify in court. And child witnesses now may be allowed to testify on camera from another location without the need to face the accused in court.

Child witnesses are different

When dealing with a witness of tender years, law enforcement officers and prosecutors must, first, gain the child’s confidence, give him or her a comfort level in talking to them about what happened. When interviewing a child for the first time, officers and prosecutors should never approach him, as they might an adult, with direct questions about the crime that is under investigation. Instead, they might ask the child about school, what he likes to do, sports, music, his friends. In effect, they are asking the child to trust them, sometimes enough to relate details the child would rather forget.

Children can be fragile or strong or both, just like the rest of us.

Competency to testify

In the prosecutor’s first meeting with a young witness, he (or she) is starting to gauge whether the child will be found competent to testify, that is, whether the court will allow him to be a witness. A child may be found competent to testify if he knows – and can articulate – the difference between telling the truth and telling a lie, understands the oath at least in terms of a promise to tell the truth, has testimony that is relevant to the case, and is able to relate it. Under these general guidelines, a child as young as four or five may be qualified to testify while another older child may not be.

Generally, prior to trial, the judge will allow a voir dire as to the child’s competency. Lawyers for both sides will have an opportunity to question the child to determine whether he can testify at trial. This is another step in the process for which the potential child witness needs to be prepared.

 Interviewing the child – and how things can go wrong

When interviewing a child who has been a victim of, or witness to, a crime, it is important to listen to what the child has to say. The interviewer should let the child say what happened.

It is important that the interviewer not tell the child what happened or tell him what he should say or suggest in any way what it is he is supposed to remember. We have all heard of cases that were thrown out of court because someone – a cop, a prosecutor, or even a child advocate – put words in the child’s mouth or, worse yet, persuaded children to testify to something that never happened.

These are just a few things you might consider as you craft a story involving a witness who is a child.

Do you have a central character who is a young child in a story or a novel written for adult readers? What issues have you faced in crafting young characters who have to confront grown-up traumas?

When Famous People Are On Trial

The Jury by John Morgan

The Jury by John Morgan

As I write this post, two celebrities are on trial and one famous person has been identified by the media as the “star witness” in a murder trial.

Former U.S. Senator John Edwards is on trial in federal court in North Carolina, charged with using almost $1 million in campaign funds to hide an affair with the mother of his child.

In federal court in the District of Columbia, former major league pitcher Roger Clemens is on trial, charged with lying to Congress about his use of performance-enhancing drugs.

In Chicago, Jennifer Hudson has already testified against her estranged brother-in-law who is charged with the murders of Hudson’s mother, brother, and 7-year-old nephew.

In high-profile cases such as these, a number of issues may arise that writers and commentators should understand fully. For the most part, these issues center on pretrial publicity.

Change of venue

In high-profile cases, defense attorneys often move for a change of venue. They ask the court to move the trial to another location, usually a place other then where the crime occurred. The fear is that potential jurors who live in an area that has been saturated with media coverage about a case will be unable to set aside whatever they have seen or heard about it. A change of venue is not automatic. Even as to the Watergate defendants, the courts held that although the pretrial publicity was massive, there was no need to grant the defense requests to move the trial from Washington, D.C.

On the other hand, the federal trial of Oklahoma City bomber Timothy McVeigh was moved from Oklahoma to Denver, Colorado. In the murder trial of Casey Anthony, the judge denied a defense request to move the case out of Orlando, where the body of Anthony’s two-year-old daughter was found, but brought in jurors from another part of Florida to hear the case.

Jury Selection

Defendants have a constitutional right to a fair trial. That includes having jurors who can decide a case based solely on the evidence produced at trial, not on anything they have heard or read about the case, and not on any feelings they may have about the personalities involved in the case.

In high profile cases especially, prosecutors and defense attorneys often use jury questionnaires and/or rely on the jury selection process, known as voir dire, to select impartial jurors.

Once a full slate of potential jurors has been identified, the parties may submit proposed questions to the judge for inclusion in a questionnaire that is provided to those potential jurors. In addition to routine questions such as whether the person can sit on a case that may last several weeks, the questionnaire may seek to identify the biases of persons who are in the jury pool. The voir dire, that is, the process of questioning potential jurors prior to trial, has the same purpose.

If a case has garnered lots of publicity, the court may cast a wide net for potential jurors who can decide the case fairly. In the case of John Edwards, 185 potential jurors were initially summoned. Ninety potential jurors were called in Roger Clemens‘s case.

There are similar issues when the celebrity is a potential witness and especially, as with Jennifer Hudson, the celebrity witness is also a surviving family member of murder victims. Defense attorneys are concerned that jurors will be swayed by the witness’s star power, especially in a case where sympathy will be a strong factor anyway.

Jury instructions

You might think that judges issue instructions to jurors only at the end of a trial before deliberations begin. But in fact, the judge may instruct the jury at any time before and during a trial. And judges use jury instructions to help ensure the selection of unbiased jurors.

The judge presiding in John Edwards‘s trial cautioned potential jurors not to tell anyone, even family members, that they had been summoned in the case. She also told them to disregard anything they thought they knew from watching legal dramas on TV because such shows may mischaracterize the law or how things work in the courtroom.

“You can watch Law & Order, Judge Judy, John Grisham; put it out of your mind,” she told them. “I will tell you what the law is.”

Jury selection for Roger Clemens was protracted even as to simple questions about whether or not jurors had a reason to be excused. Some jurors told the judge in the case that they could not serve on the jury for religious reasons. One juror told the judge that justice was in God’s hands. “Who’s supposed to do it while we’re here on Earth?” the judge asked.

In selecting a jury for William Balfour, charged with murdering three members of Jennifer Hudson‘s family, jurors were advised early on to avoid publicity in the case. They were even cautioned not to watch Hudson’s recent appearance on American Idol. One potential juror was dismissed after he admitted that he was a “big fan” of Hudson’s and had read a lot about the case.

The questioning of jurors in Balfour’s case was also complicated by the number of potential jurors whose lives had been touched by violence. At least two people summoned for jury duty had family members who were murdered. Another was dismissed because a child, Hudson’s nephew, had been murdered and, she said, she just couldn’t get past that.

Want more?

These are just some of the issues that surround celebrity trials. Do you have any questions? Would you be interested in hearing more? I could discuss when and why juries are sequestered, how jury selection experts are used, and other issues that you might want to understand when crafting your novel about a high profile crime. Was this helpful to you? Let me know!

Why Police Don’t Always Make An Arrest

Recently, I had the privilege of publishing my very first blog post on Writer Unboxed, one of Writer’s Digest‘s 101 Best Websites for Writers since 2007. Many of you commented on my post or on Twitter that you would be interested in reading my then yet-to-be published blog. Well, this is it.

I’m calling my blog Book Ends and Odds because I plan to discuss odds and ends that affect my writing life (and life in general, for that matter):  books I am reading, movies, pop culture, criminal cases, legal issues, writing, cooking, sports, anything that piques my interest and that might generate story ideas. I also have a sentimental reason for choosing the title. In college, I helped develop and edit a literary magazine which I called Bookends. (Think Simon and Garfunkel.) So please, enjoy! Here’s my first post on my first site.

Why Police Don’t Always Make An Arrest

pair of handcuffs

When a criminal case is high profile, it becomes instant fodder for news outlets, pundits, writers, dinner party guests, and others. Many of their resulting comments will be on the mark. Others will fall short of understanding how the system really works. It is important for writers and others to make details sound authentic and plot points, realistic. So from time to time, I will address issues that seem to be a source of misunderstanding.

A criminal case often gets a lot of attention in the news when someone is arrested for the crime. We have all seen the infamous perp walk. But sometimes a case becomes high profile when police have a suspect but no arrest is made.

How can this happen?

Everyone knows that police need probable cause to make an arrest. That just means that it has to be more likely than not that the person arrested committed the crime. But even when probable cause exists, the facts can remain murky. Then it is up to a prosecutor, working with the police, to decide how best to proceed.

In the federal system, and in states that use the grand jury, it is possible to work a case as a grand jury original. Absent an arrest, the grand jury can subpoena witnesses, documents, and other evidence in an effort to determine the facts surrounding the commission of the crime. A grand jury indictment will lead to an arrest.

In states that don’t use the grand jury, or where proceeding by grand jury is optional, the prosecutor, with law enforcement personnel, can still interview witnesses and continue to investigate a case. Ultimately, a decision is made by the grand jury, or by the prosecutor without a grand jury, whether to file criminal charges.

It is common to proceed by way of grand jury original when there is a suspect in one crime but other crimes may be involved. If the grand jury is looking at a serial killer or a drug conspiracy or a terror plot, for instance, a premature arrest could tip the prosecution’s hand – or expose an informant or undercover agent – before all relevant evidence can be gathered.

It is also common to proceed without an arrest, for example, in a case where two individuals have shot at one another, an incident often referred to as a criss-cross. If one of the two is killed, the easy thing might be to charge the surviving shooter in the death of the other. But what if the deceased shooter initiated the conflict? What if the survivor acted in self defense? None of these facts may be clear at the time of the incident, but may be sorted out by giving the case a good, hard look.

I have been thinking about this lately because of Trayvon Martin, although this post is not about that case. At this point, a special prosecutor has been appointed to determine all the facts surrounding the shooting of Trayvon Martin. Regardless of whatever happened earlier in the case, it seems wise now to let that investigation run its course.

Proceeding in this way, in any case where the facts may not be fully known or understood at first, is judicious. The best outcome is always whatever would be a just result, a result based on thorough investigation and a fair evaluation of the evidence. A rush to judgment does not always lead to justice.

So, does this post help you understand why police don’t always make an arrest in a case, even when a suspect has been identified? Would you like to see more posts like this one? Do you have particular criminal case issues you would like me to discuss? I would love to hear from you. Thanks for landing on this page.