Making Crime Pay: The Writer's Guide to Criminal Law, Evidence, and Procedure

Preface

The Drama of Crime

No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it.

—THEODORE ROOSEVELT

Nothing can shake up a character’s life more than getting himself involved in a crime or certain criminal acts. For sheer human interest, nothing will capture a reader’s dollars quicker than the peril that inherently comes with the distribution of justice—mainly, the law and its procedures. It is complicated, emotional, and often messy. That’s why so many writers use crime and law for storylines. And that’s also why so many publishers clamor for the good stuff.

Take a murder, for example: Make it involve a prominent or influential victim, set up a confused crime scene, throw in some mysterious events; then, set it in front of two high-powered attorneys straining at the collar like two pit bulls ready to face off over a bone, and give them a complex venue in which to explore it. For plot points, have the police blunder, let the scientists err, and create a client who is both impulsive and unprepared. Sounds to us like the drama of a crime.

And the great part for the writer is, there are thousands of variations! Provided, of course, they know the detailed ramifications of what life is like, within and without, for all the players. If the writer makes one false move with a statute, applies one incorrect use of jargon, or wends his way into some type of character misrepresentation, his work is sure to wind up as cold and dead as the make-believe victim. The truth is, there are too many experts out there in reader-land. If you try to fudge with the process or don’t do your homework and somehow still manage to get published—it will all come back to haunt you—you will get caught.

The smart writer prepares for the journey ahead of time. Because even though criminal courtroom procedure and strategy varies from state to state, the process is still typical, and with a little extra effort, once you know the basics, it will be easier to fit the process into your own fictional jurisdiction. Making Crime Pay is here to help you do that. We will winnow down the rules so that you can manipulate them with confidence. Whether you want to shake up a character’s life with trauma or help to restore it back toward peace, this is a great place to start.

At a 1987 banquet for the American Academy of Forensic Science members, past president Don Harper Mills astounded the audience with the story of a bizarre death. A medical examiner surveyed the body of Ronald Opus and concluded that he had died from a gunshot wound to the head. The victim had originally jumped from the top of a ten-story building, intending to take his own life. He left a note to that effect, indicating his despondency. But as he fell past the ninth floor, his life was interrupted by a shotgun blast through the window, which killed him instantly.

Neither the shooter nor the deceased was aware that a safety net had been installed just below the eighth floor level to protect building workers. Ronald Opus would have failed to complete his suicide attempt the way he had planned.

Ordinarily, Dr. Mills continued, a person who sets out to commit suicide and ultimately succeeds, even though the mechanism might not be what he intended, is still defined as a suicide. Because Mr. Opus was shot on the way to certain death nine stories below, and because his suicide attempt probably would not have been successful due to the safety net, the medical examiner felt that he had a homicide on his hands.

The shotgun blast had come from a room on the ninth floor that was occupied by an elderly man and his wife. They had been arguing, and he was threatening her with a shotgun. The man was so upset that when he missed his wife, the pellets went out the window, striking Mr. Opus.

When one intends to kill subject A but kills subject B in the attempt, one is still guilty of the murder of B. When confronted with the murder charge, the old man and his wife were adamant. They both said they thought the shotgun was not loaded. The old man said it was his long-standing habit to threaten his wife with the unloaded shotgun. He had no intention to murder her.

Therefore, the killing of Mr. Opus appeared to be an accident; that is, the gun had been accidentally loaded.

The continuing investigation turned up a witness who saw the old couple’s son loading the shotgun about six weeks prior to the fatal accident. It transpired that the old lady had cut off her son’s financial support, and the son, knowing the propensity of his father to use the shotgun threateningly, loaded the gun with the expectation the father would shoot the mother. The case now becomes one of murder on the part of the son for the death of Ronald Opus.

Now comes the bizarre twist. Further investigation revealed that the son in fact was Ronald Opus. He had become increasingly despondent over the failure of his attempt to engineer his mother’s murder. This led him to jump off the ten-story building, only to be killed by a shotgun blast passing through the ninth-story window. The son had actually murdered himself, and the medical examiner closed the case as a suicide.

When asked about the truth of this story, Mills told Tracy Thompson, a reporter for the Washington Post, I made it up. Mills claimed ownership of the story, saying it was part of a speech given at the group’s 1987 banquet, and he says he did it strictly for entertainment. As to becoming part of an urban legend, Mills said, I didn’t expect it to get on the Internet. So far, I’ve gotten more than a hundred calls about it. When asked if this surprised him, Mills responded, No, not really. It’s a fabulous story.

And that is the point. By knowing the intricacies of the law and its criminal principles, you, too, can create your own urban legend. This book is set up in a logical manner: delineating the evolution of law, defining criminal law’s specific elements, outlining the proper criminal procedure, and finally finishing with law’s application. If, per chance, your story does not follow this paradigm, each principle or procedure is covered by its own chapter.

The headings, boxes, and bulleted lists are for speed and ease of use. I have tried to take complicated legal jargon and break it down into its most simple elements, giving you an easy way to begin the What if process.

Be sure to check out the appendixes and endnotes, as they hold valuable information in the way of forms, definitions, and additional reference; they are listed in case you decide you would like to read the entire document or the actual criminal case referred to in the text. The writing style throughout is colloquial, in keeping with the title of the book. It is written in regular, conversational language. I hope these techniques help you in all your crime novel endeavors.

Part I: Criminal Law Explained

Chapter 1

The Evolution of Law

The life of law has not been logic; it has been experience.

—OLIVER WENDELL HOLMES JR., THE COMMON LAW

We could say laws were shaped on the backs of men—literally, in some cases. In the name of the law, criminals have been beheaded, impaled, burned, flogged, mutilated, and chained to everything from trees to grinding wheels to the oars on great ships. Lawbreakers have also been pressed into service, exiled, and imprisoned.

The criminal procedures used today are fruit from the seeds of long and accepted practices of thought, trial, and error. The beginnings of law and the horrible struggles, war, torture, and inequalities of history paint a glorious if brutal picture. As writers, you will find the foundations of law helpful to know and understand, and the historical perspectives may inspire you to write about another time.

Hail Civilization

When a culture becomes complex enough to support a diverse number of people and ideas, the unity of its inhabitants forms a civilization, which helps to preserve its past, sponsors innovation, and transmits its style and values. Civilization as we know it first emerged some five to six thousand years ago. First, small agricultural villages evolved in the Mesopotamia river valley between the Tigris and Euphrates rivers. Shortly thereafter, communities sprung up in Egypt, around the Nile. These social organizations had more complex rules for conduct than those that guided cave dwellers or the earliest farmers. In fact, the very word civilization is borrowed from the old French but taken from Latin civilis—relating to private rights, state law, and public right—but with an important distinction: It was for city dwellers only.

In shaping a civilization, the establishment of firm authority required a balance between those doing the governing and those being governed. This practical peace called for certain sophisticated divisions of authority and labor. Specific duties, power, and skills passed down through particular families. Who you were born to pretty much determined your lot in life.

Firm authority required acceptance. Mesopotamia, and later Egypt, had powerful kings and a priestly caste. Seeking social order, the people gave authority to the man or woman who seemed to have some special power, wealth, or ability. In less sophisticated communities, power was handed to the biggest or strongest of men—and in some cases, to men with red hair. Law or formally accepted codes of conduct, were a step-up from the simple customs of village life.

Detailed, recorded law codes tell us how societies controlled relations among their people. The best known is the Laws of Hammurabi, sometimes referred to as the Code of Hammurabi. These judgments were issued by an eighteenth-century B.C. Babylonian king who probably adapted them from older Sumerian and Akkadian law. Hammurabi’s laws were engraved on a pillar of stone and related to all aspects of life in Babylonia. Four thousand lines of writing spelled out what was expected from the people: the sanctity of their oath to God, and the necessity of all legal matters and written evidence.

FYI

The cuneiform stone column, which records a long series of the legal judgments published under the name of Hammurabi can be found at the Louvre Museum in Paris, France.

HAMMURABI’S LAW CODE

When Marduk [the patron god of Babylon] sent me to rule the people and to bring help to the country, I established law and justice in the language of the land and promoted the welfare of the people. At the time I decreed:

1. If a man accuses another man of murder but cannot prove it, the accuser shall be put to death.

.........

2. If a man bears false witness in a case, or cannot prove his testimony, if that case involves life or death, he shall be put to death.

 ..........

22. If a man commits robbery and is captured, he shall be put to death.

23. If the robber is not captured, the man who has been robbed shall, in the presence of the god, make a list of what he has lost, and the city and the governor of the province where the robbery was committed shall compensate him for his loss.

..........

142. If a woman hates her husband and says, You may not possess me, the city council shall inquire into her case; and if she has been careful and without reproach and her husband has been going about and belittling her, she is not to blame. She may take her dowry and return to her father’s house.

..........

195. If a son strikes his father, they shall cut off his hand.

196. If a man destroys the eye of another man, they shall destroy his eye.

197. If a man breaks another man’s bone, they shall break his bone.

..........

200. If a man knocks out a tooth of a man of his own rank, they shall knock out his tooth.¹

Lex talionis, the law of retaliation—an eye for an eye and a tooth for a tooth—is said to be derived from these early beginnings and is a principle many cultures still adhere to today. In fact, a modern version of Talion law is in effect in the Islamic republic of Iran. Equivalent retaliation takes form in ideology but is practiced in the law—with penalties being proportionate to the severity of the offense, letting the punishment fit the crime. Today, a person found guilty of theft in Iran could be punished by severing his hands.

One important thing to note: In its implementation, Talion law does not call for retaliatory justice by taking of the perpetrator’s eye for one lost by the victim; rather, it limits the victim’s legitimate claim to no more than an eye for a lost eye.

Early due process and primitive versions of the trial—a sophisticated treatment of how controversies were settled in ancient western civilization—are illustrated through what we know about Biblical Israel (circa 1020–922 B.C.) and a system they had called trial court at the gate.

Since there was a mix of clans in these communities, certain folkways and mores were taught by one clan to another. Any violations of these beliefs were dealt with by the trial court, at the gate. Trial convened in the morning near the gates to the community, in front of the elders, and before the townspeople left to work in the fields. It attracted an audience and was meant to be public. One of the rights of the accused, the basis for a public trial, began here.

The accuser, who acted as the prosecution, essentially, was the party on the right hand of the justice, with the judge seated in the center. The accused was assisted by a defender who would stand. Death sentences for serious crimes were common, and when the offense warranted stoning, the accuser got to throw the first stone.

There were penalties for false testimony—it usually meant the liar received the same sentence as the accused. Also, as part of the process, no testimony was allowed that was based either on secondhand information or supposition, bringing to mind today’s rule of evidence against hearsay. In addition, two witnesses were needed to convict a person of a crime, and this served as the basis for today’s theory of corroboration. Plus, if there were a lack of evidence, the accused would take an exculpatory oath; he would call upon God (known as Yahweh) to punish or curse him should he lie.

The people of that time believed that law was an expression of God’s commandments and that any violation was a transgression against God. For example, Israeli law commanded that the one who had killed should also be killed. If the blood spirit given to people by God was taken in murder, the law was allowed to take again what rightfully belonged to Yahweh. If no killer was found, a blood sacrifice from an animal was granted to restore balance.

The Age of Laws’ Refinement

Two other great Western civilizations helped to shape laws’ early beginnings: the Greeks and the Romans. Their attitude toward leadership and law can be summed up in a speech the Athenian leader Pericles gave as a eulogy for his countrymen who were killed during the Golden Age (431–430 B.C.): Our form of government does not enter into rivalry with the institutions of others. We do not copy our neighbours, but are an example to them.²

ATHENIAN JUSTICE: Solon, a popular poet and statesman, was well known for his compassionate work, which made him a towering figure in Greek history. As chief magistrate of Athens, Solon drafted a code that essentially prohibited slavery for indebtedness and class division based on income and property, and granted citizenship to even the lowest peon, thereby allowing men a chance to improve their status economically, regardless of ancestry.

Solon’s court of appeals, the Heliaea, consisted of a jury drawn from a lot of six thousand members of the Athenian tribe. With his enactment for more equal citizen participation and responsibility, he pointed the state toward eventual democracy. Three other important contributions from the Heliaea system were: Guilt or innocence was determined by secret ballot; the trial was finished in one day; and the courts relied on the people’s contribution and civil action—in other words, it sanctioned the first citizen’s arrest.

Some other concepts survived the Athenian law process: filing a complaint, holding preliminary hearings, the notion that the magistrate could dismiss motions or hold them over, and the taking of oath (they also allowed oath helpers, people within the defendant’s family who were sworn in as well). Interestingly, if the defendant had more oath helpers than the accuser, the charges were dismissed.

Also, the Athenians prided themselves on being great orators and perfected the art of the closing argument—summation speeches directed toward the jurists. Other original measures were that monetary fines were imposed as a deterrent to lying; for example, a thousand drachmas were collected from those who pressed false charges. Court penalties included capital punishment, a common remedy, which primarily consisted of drinking hemlock or being thrown into an open pit and stoned. Noncapital punishments included banishment, public degradation, or, in the case of slaves, flogging.

LONG LIVE ROME: A refined system of law and procedure was one of the chief cultural contributions of the Roman civilization. Laws were issued by assemblies made up of citizens who were in the army or who were landholders, and they dealt largely with public issues such as land distribution and military commands overseas. On the other hand, the laws that affected relations between citizens were largely the work of individual elected magistrates who had a limited term of service—one year—and they needed the consent of their colleagues to govern.

Normally, cases came before a judge—again, a private citizen—who relied on the advice of other citizens—called jurists—reputed to know the law. They operated under the adversarial trial process, and the police force was often called in as an investigating element.

Romans distinguished their own citizens from the rest of the other members of the Empire. Natives were subject to civil law—laying the basis for modern civil law—or law applying only to citizens; others were allowed to maintain their own customs, ius gentium, or law of other nations. These two laws then, logically, were assigned to two kinds of magistrates: the urban praetor and the traveling praetor.

Eventually, as the powers of authority within the empire grew, the law of custom replaced the law of other nations. Public pressure for codes of law spawned ten bronze and wooden tablets, later to become a dozen etchings called The Twelve Tablets. These were fastened to the speaker’s stand at the Roman Forum. The word leges, which were enactments by Roman assembly, stands for our word legislation today. These rules of customary conduct morphed into an issuance called edicts—public orders or decrees. Later, around 130 A.D., officials codified the edicts and leges into one body of law called edictum perpetuum, or force of law.

During the height of the Roman Empire, Emperor Justinian created a written summary of laws called the Justinian Code. These collected laws had developed over the course of a thousand years; and with 170 constitutions it became the corpus juris civilus, or the Body of Civil Law. This served as the basis for canon law—law of the Catholic Church. Later, in large part due to the church, the canon and common law tied together again to form French Napoleonic Code, which serves today as the influence of a development of law exercised through the Louisiana Purchase, called the Louisiana Civil Code.

PUTTING IT IN PERSPECTIVE: Although these early stories of law give an ordered look to their respective societies, a writer of history must look further for the truth. A well-rounded law researcher and writer would do well to note that Greece was plagued by the lack of law from its early beginnings. One of the most significant episodes in Greek history, the Peloponnesian War, was a civil conflict involving Greeks killing Greeks. When they fought against other nations, such as in another famous conflict, the Trojan War, their enemies were known as barbarians. The expansion of the Greek Empire spawned injustice and was one of the key factors in the advancement of the judicial system.

The Roman Empire hit its height with pax romana, the Roman Peace, providing two centuries of solid prosperity. But it, too, was founded on the backs of slaves, and justice for the captive and disenfranchised was nonexistent.

Writer Jump-Start

The dichotomy between slave and free in a land celebrating the height of Roman civil engineering, for one million inhabitants of the most successful city in Western civilization, is a great contrast of humanity. In the midst of great prosperity, Rome was not as great a place to live for the slaves and the conquered barbarians who did all the work. After the death of Augustus (14 A.D.), the empire was preserved by three things: emperors, civil servants and city councils, and the army. The successors of Augustus cared little for those of lower rank. The laws were laws of oppression, if you were not a citizen of Rome. Conflicts such as these make for powerful historical narrations.

Sources of American Criminal Law

The American criminal law, and the subsequent rights of the accused as we know them today, are a blend of two traditions: the common law, which was developed in Saxon England and grounded in customs and precedents; and civil law, which was derived from its Roman antecedents—laws adapted from the earlier efforts used to control human behavior, which survived by means of written and established codes that defined offenses and prescribed penalties for those crimes.

English common law—a tossed salad made up of tribal rules, Roman law, and the customs of invaders and other travelers from France, Scandinavia, and what would later become Germany—influenced our ways as well. In 1066, William the Conqueror, the Norman ruler, imposed his own public mandates on the existing system in order to consolidate his power and authority. Under the royal justices appointed by William, the existing state law became common law—named so because it originated in the customary practices of the realm and was common to all England. And even though common law had its roots in custom and tradition, it evolved through time and through the use of consistent, judicial decision-making.

For this reason, common law is judge-made law. Think of it as a reproduction of a fine antique, one that has been adapted, changed, polished, and buffed to a shine. The whole museum storehouse of common law, then, is an actual collection of decisions handed down from generation to generation.

KINGS AND LAW: Henry I, son of William the Conqueror, made his own contributions to criminal justice and issued leges Henrici. One prime example of this, and an idea that has continued to mature since then, was that crimes like robbery and counterfeiting were against the King’s peace. Thus, these offenses became crimes against the state, a precedent for crimes punishable by the state instead of by an individual—a model for crimes of misdemeanor. Later still, King Henry II developed and extended the king’s court system and created a jury system called the Inquisition, where a jury panel determined guilt.

They were followed by King John, a serious abuser of power. He increased taxes and governed according to his wishes. This upset the barons—landowners—and church leaders, and they drew up a list of rights for people. In 1215, King John had to sign the Magna Carta. In it were such ideas as separation of church and state, additional rights given to the rising middle class, and a man-date that the king was to seek advice from his barons before enacting any laws.

And, finally for England, King James II, a tyrant king in the late 1600s, was forced to abdicate, and this turn of events helped to produce the English Bill of Rights. As part of these rights, there would be no order for suspending laws without the aid of Parliament, no standing army during peace, free elections for members of Parliament, and no impeachment of the people’s freedom of speech.

Therefore, when the new world was being settled by English colonists in the seventeenth and eighteenth centuries, they had a basis for law. Later, when the War of Independence had been won, breaking the shackles of English rule, the settlers had their rights to freedom, and a new, American common law system was left to evolve. One man in particular, Sir William Blackstone, helped the new American judges by publishing Commentaries on the Laws of England, which illustrated the principles of the common law in an encyclopedic treatment. Blackstone had been a jurist and professor at Oxford, and his effort aided in demystifying English law. The barristers of England were a little put off by Blackstone’s seminal effort, because they took pride in offering their services to discover the law, but his American counterparts found his Commentaries to be something of a legal bible.

FIVE SOURCES OF CONTEMPORARY LAW:

1   United States Constitution

2   Acts of Congress

3   State constitutions

4   State statutes and territorial legislature acts

5   The common law

The law of the Constitution is greater than an act of Congress and, when in conflict, can void it out. If a valid act made by Congress clashes with a state constitutional provision, the latter is void. If a provision of a state constitution goes against the statute or law of the same state, the state law is void. If a law of a state or one of its territorial legislatures conflicts with a common law provision, the latter is void.

Types of Law

A writer should be familiar with the different types of law and know what they mean. If your protagonist is a lawyer, he will obviously know the terminology. Described below are the types of law under the umbrella of the American criminal law system:

SUBSTANTIVE CRIMINAL LAW: This is the more formal term for criminal law. The key elements of substantive criminal law are:

•    The acts

•    Mental states

•    Accompanying circumstances or consequences that make up the necessary features of crimes

In other words, it defines the kinds of behavior (acts or omissions) that constitute wrongs against the state and assigns punishments for such conduct. Any references in this book to criminal law are actually references to substantive criminal law.

PROCEDURAL LAW: Also known as criminal procedure, this type of law stipulates how substantive criminal law should be carried out. These are the steps on how a governing body should proceed in order to enforce criminal law. It defines arrest, probable cause, rights, and search methods—all elements of the law enforcement plan. Based on fundamental fairness and due process, procedural law tells us how evidence should be collected and what rights are guaranteed to the accused.

STATUTORY LAWS: These are laws that are made by state legislatures and Congress. This type of law is most important, because all American jurisdictions have extensive statutes dealing with crimes and criminal law. These laws are put together into codes for sorting purposes and are classified under separate headings. The criminal laws of any state are found under the state penal code. So, to find out how Arkansas defines the crimes of kidnapping, false imprisonment, and vehicular piracy, you would look in the Arkansas Penal Code, as provided in the Arkansas Statutes 5-11-102, 5-11-103, and 5-11-105. State codes are subject to revision at annual legislative sessions.

ADMINISTRATIVE LAWS: Administrative laws are rulings by government agencies at the federal, state, or local levels. For example, an executive branch may set up and give authority to a board of health in order to establish regulations for specific policy areas (in this instance, health standards). Although most of the content of administrative law is not targeted directly at criminal behavior, certain violations are dealt with in criminal courts.

CONSTITUTIONAL LAW: United States Constitution and the constitutions of the individual states dictate this type of law. These, by nature, are supreme over other kinds of law, and the disputes are most likely handled in state supreme courts—and, sometimes, in its final destination (if it gets that far), the Supreme Court. In the event of a conflict, the federal Constitution law is dominant over state constitutional law. The only crime defined in the U.S. Constitution is treason.

PRECEDENTS: This type of law is influenced by the principle stare decisis—Let the decision stand. Judges use this rule in order to follow what went before in judicial interpretations. This means that judges today accept the decisions made by judges in the past. These principles, or precedents, help them to promote stability and certainty when making legal decisions—although prior decisions are sometimes overturned by the higher authority in a court of appeals, thereby reversing or modifying existing case law.

CASE LAW: Judges may create case law in their rulings on statutory laws. This type of law also applies when they take into account previous rulings and set down, in writing, an opinion of their own.

TORT: A tort is a civil remedy for injury to persons and their property. The injured party may sue for remedy, reparations, or related expenses. Examples of these would be libel, slander, trespassing, and damage from negligence.

Seven Basic Law Principles that Define a Crime

We all have ideas about what we think is inappropriate behavior, but what is a crime in the eyes of the law? Are there basic requirements of a criminal act, a laundry list of wrongs? In simple terms, yes.

For a particular behavior to be considered criminal, there are basic conditions that must be met. These factors must all be present and are what the legislatures and courts use to prepare and interpret substantive criminal law. Basically, a crime is an intentional act or omission in violation of a criminal law, committed without defense or justification and sanctioned by the state as a felony or misdemeanor. These are the essential ingredients in every crime:

1.    Legality

2.    Actus reus

3.    Mens rea

4.   Concurrence of actus reus and mens rea

5.   Harm

6.   Causation

10. Punishment

LEGALITY: There is an ancient Latin saying, nullum crimen sine lege, which means, no crime without a law. You may also hear it as nullen crimen, nulla poena, sine lege, or, There is no crime, there is no punishment, without law.

FYI—

This is an interesting concept: There can be no crime unless a law exists that has been violated. Examples of this would be the rather recent laws against carjacking, or offenses that are now being defined as hate crimes.

ACTUS REUS: This term is simply another way of saying guilty act. Bad thoughts alone do not constitute a crime. Just because you may wish someone dead, unless you take action to bring about that result, it may be sad but it’s not a crime. It is important, though, to distinguish thought from speech, because now there are laws that govern that. Also, an agreement to commit a crime is one of the elements required for a criminal conspiracy, which I’ll discuss later.

MENS REA: Mens rea means guilty mind, also referred to as criminal intent. Proving intent is a hurdle all prosecutors train for. It calls for an assessment of the psychology, motives, and intent of the defendant. The concept of mens rea is based on the notion that people have the capacity to control their behavior and can choose between alternative courses of conduct. If a bus driver drives through an intersection without stopping and causes an accident, he will not be charged with a crime if it turns out that his brakes failed and he had done whatever he could to prevent the accident.

CONCURRENCE OF ACTUS REUS AND MENS REA: This phrase means that the act and the mental state, or intent, work together in time for a crime to be committed. For example, the act and mental state are not concurrent if they are separated by a considerable gap in time.

HARM: Only conduct that is in some way harmful can be considered criminal. The essence of the idea of harm is based on due process. For instance, a criminal law is unconstitutional if it can show no relationship to the matter of injury against its citizens. Harm does not have to be physical, though. In cases of libel, perjury, and treason no physical harm is inflicted.

Just recently, legislatures have expanded harm to include hate crimes and criminal discrimination. A hate crime is an act of violence or property damage committed because of the victim’s race, gender, or sexual preference.

CAUSATION: This relates to crime in the same way that a defendant’s conduct produces a given result. Only crimes like perjury, lying under oath, or forgery—signing a false name—are defined so that the crime consists of both the act itself and the intent to cause the harmful result, without regard to whether the result actually occurs. The harm that occurs must be similar enough to the intended result that the defendant can still be held responsible.

In some instances, cause is difficult to assess. For example, if A shoots a bullet into B and he dies, we can see through ballistics evidence and the wound that the action and the intent were the cause of B’s death. On the other hand, if A shoots B and leaves him on the freeway, and B gets hit by C, who doesn’t see him, will A be convicted of B’s murder? Only if it can be determined that A’s conduct was a substantial factor in bringing about B’s death or that what happened was a foreseeable consequence of A’s behavior.

PUNISHMENT: Under the American legal system, citizens must not only be warned about what conduct is forbidden but must also be made aware of the consequences of their actions. For this reason, the law stipulates sanctions for every crime.

Writer’s Tip

Look to history for great story lines. For example, how about a Roman character, a member of counsel, who has to prove the innocence of his lover? Nothing new there? What if the accused were a slave who worked in the court of the Emperor? And what if a potential heir to the throne, a baby, was killed? Now you’ve got the beginnings of a dilemma!

Chapter 2

Crimes Defined

[Epigraph:] Crime, like virtue, has its degrees.

—RACINE , PHÈDRE

Would you believe there is an extensive body of law that permits punishment for an incomplete or failed crime? Yes, the offenses of attempt, solicitation, and conspiracy are all inchoate, or anticipatory, crimes. They include any uncompleted activity where the end result would have been, without fail, a crime. So these crimes are a preparation, if you will. The concept of inchoate offenses was originally created by the courts to give police the power to apprehend dangerous persons who have not yet done the deed, and thereby prevent them from completing their criminal objectives.

Attempt

Of the inchoate crimes, attempt is the most frequent charge. In order for a criminal to be charged with an attempt, certain conditions must be met:

1.  The intent to commit an offense AND

2a.  A substantial step (also called an overt act) OR

2b.  Conduct that would have been a crime

The state penal code usually gets specific in defining the attempt to commit murder, but a typical statute reads like this one from Florida:

Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of an offense, but fails in the perpetration or is intercepted or prevented in execution of the same, commits the offense of criminal attempt.³

Solicitation

Solicitation and attempt are different in that solicitation is complete when the request or inducement to do the act is made. In order words, solicitation is

1. The intent to promote or facilitate a crime, AND

2. The instigator’s act of commanding, urging, or requesting another to engage in specific conduct that would make up an offense or attempt.

The Gardner case⁴ illustrates exactly when the crime of solicitation is performed. Roger Gardner, an alleged contract killer, hired a man named Tim McDonald to kill Alvin Blum for $10,000. Gardner met with McDonald, giving him some expense money, a gun, and ammunition. During their conversation at this meeting, Gardner said he would first kill a man named Hollander, and if that did not create the desired result, then McDonald should go on to kill Blum.

Gardner’s attempt failed when he was arrested and charged with solicitation to murder. It turned out that McDonald worked for police as an informant, and his information led to Gardner’s arrest.

On appeal, Gardner argued that he did not commit the crime of solicitation because he did not actually direct McDonald to proceed with the