What Happens In a Criminal Case

A fellow writer asked me for an overview of what happens during a criminal prosecution. Those questions pop up from time to time, so I thought I'd include the overview here. I won't be taking follow-up questions due to my own time constraints, but this might be enough for you to come across sounding knowledgeable in your own writing. As always, this is not legal advice. You get legal advice by hiring and paying a lawyer. This is simply informational and is meant only as an overview of what generally happens in American criminal courts. So here we go:


Criminal Procedure

Two classes of crimes based on severity: felony and misdemeanor. A felony is any crime punishable by incarceration for over a year. Served in state prison. Misdemeanors are any crime punishable by up to one year in jail, usually local county jail.

How prosecution begins
Prosecution of a citizen begins with either a criminal complaint being filed, usually signed by a police officer; or with an indictment issued by a grand jury. If by complaint, then a preliminary hearing must be held in order for the judge to determine whether there’s probable cause to hold the defendant for trial or not. If by indictment, no need for preliminary hearing as probable cause is already established by the issuance of the indictment by the grand jury. Grand jury proceedings are secret and no defense lawyer is allowed inside. 

Pre-trial court appearances
After indictment or criminal complaint the defendant is arrested and brought before the judge in what’s called the initial appearance. At this time the judge does or doesn’t set bail. In most states bail is always allowed except where the defendant is a danger to others and “the proof is evident and the presumption (of guilt) is great.” If defendant can’t pay bail, he goes to jail. If he can pay bail he’s released but usually can’t leave the state. Following initial appearance there’s next an arraignment, in which the defendant attends and is apprised by the court of the charges against him and a plea is taken guilty/or not guilty. A defendant has a constitutional right to have a lawyer present during the IA and the Arraignment. If he can’t afford one, the public defender is appointed.

Trial is set. The right to a speedy trial is also guaranteed by the constitution. 

Trial beginsJury selection happens. Each side is given what are called peremptory challenges, usually around six each. These allow me to kick you off the jury for any reason. There are also unlimited challenges for cause. "Cause" means a potential juror is biased and should be excused. Cause can also be physical frailties (hearing deficits, kids at home etc).

Next, opening statements are made, the state going first and the defense going second. Opening statements are limited in scope to what each party expects the evidence to prove. Argument is not allowed at this time.

    Introduction of Evidence:
The state goes first. The state has the burden of proving the charges in the complaint or indictment beyond a reasonable doubt. Then the defense puts on its case. The defendant is not required to testify because he has a Fifth Amendment right to remain silent. This is usually the case; the defendant does not testify. The jury takes notes. The jury is the decider of the facts, e.g., was the light green or red? Who's telling the truth and who's lying. Guilty or not guilty? (There is no such finding of "innocent." Only not guilty). 

At the close of all the evidence, closing arguments are made. Now is the time for argument. The state goes first. 

Then the court reads instructions on the law to the jury. The jury then takes the instructions and exhibits into the jury room to deliberate. Guilt must be unanimous. 

If found guilty, the defendant has a constitutional right to appeal. 

Additional insights 

In criminal law there are two kinds of law. Procedural law and substantive law. Procedural law is such things as rules of evidence and rules of procedure. Substantive law is the law that spells out the elements of a crime. When a lawyer objects in court to testimony, the objection is based on rules of evidence and is procedural, but it may cover areas of the law that are substantive, e.g., where the prosecution is offering proof of something that isn’t one of the elements of the crime charged the defendant would object based on relevance and/or materiality.

Writing, Feelings, and Vision

Women interpreted the world through feelings. The men interpreted the world with logic. I learned how to discuss my feeling state, my feelings. I learned how to say, when thus and so happens I feel this or that. Now my fictional characters do that. If you want to capture readers and have them seeking more of your work, give your characters full inner lives. This doesn’t mean omniscient viewpoint. It means reflecting a feeling or emotional reaction to an event. Not a logical reaction, not the thoughts, but the feelings. Two totally different things.

Do’s and don’t's

avoid cognitive dissonance

do full inner life, provide full cognitive consonance

Important for new writers:

1. remember that vision and voice are the same thing, and that one is how you see the world and one is how you express what you see — but in way they’re the same thing because in both cases it’s the brain interpreting your reality as seen through your filter. Biocentrists claim that vision creates reality. Some quantum physicists say the same thing. As humans we’re nosy about our neighbors: when I see red and you see red are we seeing the same thing? When I witness the accident on 24th street and you witness the same thing, did we see the same thing? Read an accident report for the answer to this. Two people located in the exact same position will give the police officer two totally different stories and yet both will be adamant that he or she is right. Amazing. So this is vision. Voice is how I tell you about the accident. Not what I tell you—what I tell you is vision. Voice is how I tell you. 
2. For that first year, ignore profit and seek out eyes

How to sell books

If I were starting today I would publish my first book and advertise in order to get reviews so I could aim for a Bookbub. At the same time I would be writing my second book. I wouldn’t let my first book drop off the 90 day cliff before I had my second book out. For a beginning writer I would also use preorders because a preorder can get me on the hot new releases list in my genre if I’m moving the book with my FB ads. Then I get the full benefit of HNR prepublication followed by thirty days on HNR after publication. In other words, I want my name out there.

In my first 18 months BB featured me 12 times. I always opted for the freebie feature and avoided the paid features because I wanted eyes, not a few bucks. 

Advertising: ignore ROI. Expect to lose dollars on advertising at first, but always remember you’re after exposure for your books. And as your backlist grows you will be selling those books based on the advertising cost of the first book alone.

Which brings me to the most important thing a new writer —or an old writer—can do: Write books that people want to read.

There are two steps to this

1 Write to market

2 Write compelling stories - you must have in each scene a goal and a move toward that goal. At the end of the scene you will leave a comment indicating whether the goal was reached or leave a comment indicating more problems to come. A good technique is not only to thwart that goal but also increase the problem the MC is facing because he or she tried to succeed.

-Never be afraid to put your MC in more danger or more of a struggle. This conflict is the key to getting readers to turn pages. 

-Every character who we’re going to see a second time in the book must be conflicted, however small. Interest level.

Also, MC must react to conflict with inner life reveals. We need to know his or her inner life or it becomes cardboard. So us what he or she is thinking, feeling, plotting, hoping, fearing—all of it. Except never foretell strategy. Let the reader see MC meet with another character to strategize but never let the reader know what it was they planned. Only that they planned something. Keep leading them along.

How I Sell So Many Books

Let's get real. We're entertainers, we authors. We're part of the entertainment industry. I don't consider myself an artist. I consider myself a standup storyteller who has taken to the page instead of the microphone. It is extremely important that I keep this in mind if I want to sell books.

How does it play out, that I'm an entertainer who wants to sell books/entertainment to you? For one, I need to think of juggling--the constant movement and craft of keeping your eyes on what I'm doing. I do this with plot. Next, I need to engage your eyes in my craft: I do this with characterizations, drawing up real characters that you care about. Whether it's the fourteen year old victim of white slavery or the lawyer or cop who's in something way over their prior experience level, I need to give  you a viewpoint or a playoff character that you want to follow. You must want to know what happens to him or her or my story won't move you.

Next, I must clothe myself in the garb you want someone to wear onstage. I do this by dressing up my descriptions and narrative in language that captures your eye. This is done by giving you the view of the world that through my eye or my character's eye gives a unique view and an enchanting view. Even hard-boiled detectives can enchant with their world view when viewing a decomposing body. ("The twisted smile suggested he actually enjoyed his death. Or maybe it was just muscle contracture brought on by rigor mortis. I couldn't tell, and such is the ambiguity of death without a witness nearby.") (Yes, I just made this up as an example and you may use it in your own story with my blessing, should it fit.)

Finally I, a thriller-writer, need to scare the hell out of you if I want you--and I do--to keep turning pages. So there must be something or someone important to you at risk. This is about craft and it's akin to making you like someone, getting you invested in someone and then setting their bed on fire.

Having done all this, I'm going to entertain you. If I do it well enough you might tell someone else about the experience. Which is how the big sellers get sold.

Word of mouth.

There is no substitute.

Novel Length

Whatever you term the length of my more recents books--whether novel or novella--I am finding more and more that my readers appreciate less description of rooms, countryside, cities, clothing, entrees and drinks, and such standbys that many of us believe(d) we need for verisimilitude or filler or because we were good at details or all three. I've heard it in my thousands of reviews repeatedly that "the story moved along at a fast pace without all the descriptions [that readers typically encounter and skip over.]" I'm thinking that today's reader is greatly accustomed to the quick TV/movie pan of the city/building/interior that just a quick word or two in my writing accomplishes the same thing that twenty years ago might have required a paragraph. The upshot is that my stories are getting shorter and thus "seem" more action-driven without all the other stuff.

It's not uncommon for me to go for several chapters without ever describing what anyone is wearing, eating, drinking etc. My readers just seem to be happier without all that stuff. My work easily shrinks from 80K 70K accordingly. It's a win-win for me and my readers, the way I see it.

And as far as pricing, none of my readers complain about prices (typically 3.99 or 4.99) whether the book is 65K or 80K. It's a non-issue.

Unless a sentence is moving the story forward its utility is always questionable.

Panes of Clarity In Your Writing

Two things: narrative and dialogue. If it's narrative, all my people, including first and third, sound alike. Who cares? It's me telling the story even in the first person. I'm not cool enough to develop a language and style of delivery for a character. Just hints of it. Dropping g's on ing's, that kind of thing, but not even that so much anymore. Message to self: readers read you because they like your vision of the world. Everyone is looking to an appropriate vision of the world for themselves. If they like yours you gonna sell lots and lots of books. If your view is mundane, uninventive, apoetic, they're going to dismiss you as...boring. Writing is boring because it doesn't shock the reader with panes of clarity. Keep them turning pages with panes of clarity, a way of seeing the world that is all yours. FOR ME, that's the entire insight I need.

Dialogue-- I don't overdo differentiation so much. I used to, when I was J.D. Salinger. I used to, when I was Ernest Hemingway. I used to, when I was John Irving. But when I stopped being everyone else and just became myself, I have my little simple speech tricks (e.g., less educated people speak in shorter phrases. It's an observable fact. They don't expand on ideas because they don't talk about ideas. They talk about things and they do it in about 3-4 iambs a phrase. More educated people speak (not narrate, dialogue), as Anni so eloquently put it, through the filter of their personalities, yes, but also through the filters of their formal education. Lawyers sound like lawyers; nurses sound like nurses; librarians sound like librarians, and everyone's world view--as a character, not as the storyteller--better be through the lens the reader expects. Truckers better sound like truckers. Etc. But the main narrative, the storyteller's voice, is a whole other animal. That's where I get to be me. This is the definition of literary fiction: the ability to create characters with worldviews that light up the page. And these will be incredible world views and lenses for seeing that play against the narrator's equally incredible world view and lenses. That's what literary fiction does so well. An entire book is spent on pretense in literary fiction: the story of a burned-out college professor over one crazy weekend where he romances the chancellor of his college, gets her pregnant and at the same time saves a defeated student from annihilation. Michael Chabon's treatment in The Wonder Boys. The key is that when writers write literarily they're not really writing just the story, they're also imparting their world view because others have found/will find it interesting and shocking at times with its clarity. 

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