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mreilly19
01-07-2013, 10:03 PM
Hi folks,

I am writing a mystery where my MC's girlfriend was accused of bank fraud along with two other male co-defendants (they allegedly conspired to steal a million dollars via overseas wire transfer from a university at which they worked).

All three of the defendants are in their early 20's and are out on bail awaiting trial. All three insist they're innocent and the other two were to blame. All three have reasonably clean records and are upper class citizens. My MC has decided to investigate the situation for himself so he can try to find evidence exonerating his girlfriend.

His plan is to impersonate a journalist and try to interview these other two defendants in hopes of somehow coming across some element of information he can use. He knows his chances are small, but has to try, at least.

My question is, how likely is it that someone accused of a crime like bank fraud would be willing (or even able) to talk to the press? The MC knows this may be a long shot, but he intends to try to portray himself as a sympathetic ear; a journalist "who is on the side of people oppressed by the corrupt criminal system" in hopes that these defendants will talk to him to try to tell their side of the story in advance of the trial.

I don't necessarily need the MC to actually pull off his operation and find some "smoking gun" type of clue, but I do need him to sit down and talk with each of these two defendants. Do you think they'd be prohibited by a judge from discussing their case with the press? Do you think they'd insist on having an attorney present if they were willing to talk?

Thanks for any advice. This is one of the last few logical hurdles I have to face before I can finally wrap up my book!

alleycat
01-07-2013, 10:12 PM
If they are out of bail that means they already have a lawyer. Any lawyer would tell them not to talk to the press or anyone else.

To me, your premise would be a little over-the-top. Agatha Christie could get away with something like this 60 years ago, but it's tougher to do these days. You might brainstorm your idea a bit more.

Bloo
01-07-2013, 10:27 PM
I know someone who was accused of something similar and yeah "no comment" was all that was ever told of them to say. That was after 2 weeks spent in county lock-up. What might work is if your MC poses as a journalist to see if they said something to their cellmates. Something that akin to a jailhouse snitch.

One of the problems I'm seeing right off the bat with the premise is that the other 2 would possibly have knowledge that the MC was the defendents boyfriend and who he was (pictures of them together on Facebook, talk about trips together, etc)

Myrealana
01-07-2013, 10:35 PM
It's unlikly a judge would impose any kind of a gag order, but a lawyer darn well would tell their client not to talk to the press.

Of course, if there are three defendents who each insist the other two are guilty that just BEGS for reasonable doubt, unless some concrete evidence is uncovered to point to the real culpret.

JournoWriter
01-07-2013, 11:37 PM
As a former reporter with experience covering many court cases, I can tell you that I have never once spoken with a defendant while charges were pending. Defense attorneys simply put the kibosh on. One of my colleagues did score a prison interview, but it was after conviction when the man was trying to convince the judge to trim the sentence. (It didn't work.)

mreilly19
01-07-2013, 11:53 PM
Thanks, all - I should have clarified that this story is set in 1992, before the dawn of the internet/mobile phones/Google search/social networking/etc. The MC started dating his accused girlfriend after the alleged crime and they live in a separate city from these 2 defendants so there has never been any connection between he and they.

This crime took place at a university which employed the three accused individuals accused. I thought about having the MC pretend to be an official from this university and want the details of the crime (taking over in a new role from someone who left the job and needs to start over gathering information) but somehow I suspect the role of the university at this point would be superseded by the cops and courts and there would be no basis for this school to send someone around asking questions.

I can probably work it so one of the defendants is dumb/flustered/tempted enough to talk to the MC if he thinks he'll benefit by getting his story out. Then have the other one be too smart/suspicious to permit the interview. That may give me the right blend of credibility and plot substance to keep the story moving. I need my MC to think he may have a lead to offer his girlfriend to unravel the case. It doesn't need to be a valid lead for what I have in mind to work.

shadowwalker
01-07-2013, 11:56 PM
Yeah, no way would their attorneys let them talk to the press, not least of all because of their penchant for printing things out of context. Of course, defendants have been known to be stupid and ignore their attorney's advice.

jclarkdawe
01-08-2013, 01:35 AM
Never mind that any defense attorney would have his or her client's balls for lunch for doing something this stupid, it's witness tampering. Another felony and any evidence developed in this fashion would be so tainted that even an out and out confession by one of the other defendants would be laughed at by the defense attorney, never mind the prosecutor.

You're going to have to decide whether you have a really good story that survives not being realistic or come up with something different. As is, it doesn't work and I can't figure out how to fix it for you.

ETA: Oh, yeah, it will also be a violation of his bail conditions, both for witness tampering, and contacting co-defendants.

Best of luck,

Jim Clark-Dawe

Kittens Starburst
01-08-2013, 01:58 AM
Don't know where your story is set, but in my neck of the woods the case would be sub judice. Your character would have been warned not to speak to the press about the case. If the press published anything beyond the mere facts (person accused of blah, trial date set for blah, etc) they could prejudice the trial (ie, prejudice the jurors and public) and even potentially get the case flung out of court.

Of course, that's not to say you can't find a way to plausibly have your characters talk, if you can do it well. Maybe your MC could simply pose as a sympathetic stranger rather than a journalist, and get to your characters at exactly the right moment.

ETA, actually, journalists being journalists will try to dig. But it will be off the record, unless they want a whole lot of trouble. As for your accused talking, just get them drunk or rattled or something. ;)

mreilly19
01-08-2013, 05:42 AM
I appreciate the assistance - based upon the above replies I've decided my best bet is to scrap the "faux journalist digging for clues" scene. I need to get my MC to the point where he considers attempting it, but I am going for realism more than anything else in this novel. Realistic love story, realistic shootouts, realistic considerations of right vs. wrong, etc. I want everything that happens to be something that could and would happen in this world.

Part of the issue has been I have needed to have this scene delayed to a later part of the book as necessary for my plot (the MC has been hiding vital info from his girlfriend in order to pursue this scheme of seeking clues from these other defendants). Given the fact he's pulled off a string of successful plans perhaps having him realize "Shit, this just isn't going to work" will also add some power to the story.

The fact that my MC is doing this to help his girlfriend, and he is smart enough to surely realize this could backfire on her drastically brings me to the point of realizing it has to be ruled out. It is more important to me to have this concept as a vehicle to show the MC's good intentions than the fact he actually uncovers something.

Thanks again to all, I wouldn't have gotten anywhere in this novel if not for this forum!

cornflake
01-08-2013, 03:18 PM
Thanks, all - I should have clarified that this story is set in 1992, before the dawn of the internet/mobile phones/Google search/social networking/etc. The MC started dating his accused girlfriend after the alleged crime and they live in a separate city from these 2 defendants so there has never been any connection between he and they.

This crime took place at a university which employed the three accused individuals accused. I thought about having the MC pretend to be an official from this university and want the details of the crime (taking over in a new role from someone who left the job and needs to start over gathering information) but somehow I suspect the role of the university at this point would be superseded by the cops and courts and there would be no basis for this school to send someone around asking questions.

I can probably work it so one of the defendants is dumb/flustered/tempted enough to talk to the MC if he thinks he'll benefit by getting his story out. Then have the other one be too smart/suspicious to permit the interview. That may give me the right blend of credibility and plot substance to keep the story moving. I need my MC to think he may have a lead to offer his girlfriend to unravel the case. It doesn't need to be a valid lead for what I have in mind to work.

I think you need to do some research.

shaldna
01-08-2013, 04:18 PM
Never mind that any defense attorney would have his or her client's balls for lunch for doing something this stupid, it's witness tampering. Another felony and any evidence developed in this fashion would be so tainted that even an out and out confession by one of the other defendants would be laughed at by the defense attorney, never mind the prosecutor.

You're going to have to decide whether you have a really good story that survives not being realistic or come up with something different. As is, it doesn't work and I can't figure out how to fix it for you.

ETA: Oh, yeah, it will also be a violation of his bail conditions, both for witness tampering, and contacting co-defendants.

Best of luck,

Jim Clark-Dawe

This was my first thought too, although until Jim said it, I wasn't sure I was right.

I gues there's a reason you don't see interviews etc in papers from folks on bail.

mirandashell
01-08-2013, 04:26 PM
I was wondering about it too. I was fairly sure you must have sub judice in America.

jclarkdawe
01-08-2013, 08:25 PM
I was wondering about it too. I was fairly sure you must have sub judice in America.

Nope. Not a bit. The press can speculate about a case all they want. Take a look at the present case in Ohio where two juveniles raped a girl. Look at all the publicity.

And people on bail do give interviews in the US. For some defendants, it can be a good approach for defending a case. And prosecutors do the same thing. But there is a big difference between a client giving an interview with their attorney present and approving and controlling the interview, and a defendant on their own going out and trusting the press to get things right.

Best of luck,

Jim Clark-Dawe

mirandashell
01-08-2013, 08:50 PM
You don't have sub judice? Wow. Any particular reason for that?

It seems odd to me that the legal system would allow media speculation considering how much that can influence a jury.

Hang on... I've confused myself.

What's this?


Never mind that any defense attorney would have his or her client's balls for lunch for doing something this stupid, it's witness tampering. Another felony and any evidence developed in this fashion would be so tainted that even an out and out confession by one of the other defendants would be laughed at by the defense attorney, never mind the prosecutor.

At what point does a journo interviewing become witness tampering? How is that measured?

jclarkdawe
01-08-2013, 10:27 PM
You don't have sub judice? Wow. Any particular reason for that? Freedom of the press trumps criminal justice.

It seems odd to me that the legal system would allow media speculation considering how much that can influence a jury. You might want to look at the case of Sam Sheppard (http://en.wikipedia.org/wiki/Sam_Sheppard). So nice and juicy a trial it led to the TV show and movie THE FUGITIVE.

Hang on... I've confused myself.

What's this?


Never mind that any defense attorney would have his or her client's balls for lunch for doing something this stupid, it's witness tampering. Another felony and any evidence developed in this fashion would be so tainted that even an out and out confession by one of the other defendants would be laughed at by the defense attorney, never mind the prosecutor. At what point does a journo interviewing become witness tampering? How is that measured? You're forgetting part of the fact scenario here. The defendant in the trial is going out, pretending to be a reporter, to interview another defendant in the trial. Being interviewed for a criminal defendant without advice of counsel is just stupid. But in this case, a criminal defendant is contacting another defendant in the case to change that defendant's story.

What do you think the prosecutor is going to believe occurred to cause one of the defendant's to change his story? It's not going to be that the other defendant had a change of heart. It's because the defendant that goes out to contact the other defendant threatened (or did) to cause various alterations to that defendant using some object to assist in those changes. Like a lead pipe. To be honest, if a client had come to me, saying he'd talked to his co-defendant and the co-defendant had changed his story so that it was clear my client was innocent, I don't care how many Bibles he's standing on, I'm going to start wondering what threats occurred.

This is one of the reasons a standard bail condition is no contact between defendants. Criminal defendants are not nice people and are known to use threats to avoid jail. The courts and the police would prefer to limit that tendency as much as possible.

Talking to the press by a defendant is not illegal, just stupid. Talking to any potential witness, with an intention to get that witness to change their story, is witness tampering and very illegal.

Best of luck,

Jim Clark-Dawe

Kittens Starburst
01-09-2013, 12:41 AM
Nope. Not a bit. The press can speculate about a case all they want.

:eek: That's very, very scary. Wouldn't be so bad if newspapers could be trusted to put justice above sales. They certainly couldn't in Britain ... or probably anywhere else.

Under Scots Law, media speculation could get a case thrown out, even if the person appears to be dead guilty, if it's deemed impossible for the accused to get a fair trial. Where does defamation fit into all this if a defendant turns out to be innocent in America after being judged guilty by the media?

mirandashell
01-09-2013, 12:50 AM
Talking to the press by a defendant is not illegal, just stupid. Talking to any potential witness, with an intention to get that witness to change their story, is witness tampering and very illegal.

Best of luck,

Jim Clark-Dawe


Thanks Jim, but as more interested in the effect of media interference. I just find it really odd that it's allowed. Surely it causes miscarriages of justice? I shall have a look at your link.

Edit: so one defendant talking to another defendant is a felony? Well that's common sense. And I think we have the same thing here. But the lack of sub judice just seems ....odd.

jclarkdawe
01-09-2013, 06:01 AM
The First Amendment guarantees freedom of the press. This is one of their freedoms, for both good and bad.


:eek: That's very, very scary. Wouldn't be so bad if newspapers could be trusted to put justice above sales. They certainly couldn't in Britain ... or probably anywhere else. If a reporter told me the sun rose in the east this morning, I'd go and double check. Take a look at the Sam Shepherd link. It's scary. But it is what it is.

Under Scots Law, media speculation could get a case thrown out, even if the person appears to be dead guilty, if it's deemed impossible for the accused to get a fair trial. Where does defamation fit into all this if a defendant turns out to be innocent in America after being judged guilty by the media? As long as the press is publishing official statements, then the press is fine. I don't know the complete scope, as this isn't an area of law I'm terribly interested in.


Thanks Jim, but as more interested in the effect of media interference. I just find it really odd that it's allowed. Surely it causes miscarriages of justice? I shall have a look at your link. There's been a lot of cases where pre-trial publicity has resulted in mistakes.

Edit: so one defendant talking to another defendant is a felony? Well that's common sense. And I think we have the same thing here. I was just having a conversation this morning about how some professions try to say exactly what they mean.

One criminal defendant talking to a co-defendant in the same case is not a crime, although it may be a violation of bail conditions.

Any individual, including criminal defendants, who talks with a potential witness for the purpose of getting that witness to change his or her testimony is guilty of witness tampering or attempted witness tampering.

But the lack of sub judice just seems ....odd. It's probably the biggest difference between English and US criminal law.

Best of luck,

Jim Clark-Dawe

JournoWriter
01-10-2013, 03:00 PM
Under Scots Law, media speculation could get a case thrown out, even if the person appears to be dead guilty, if it's deemed impossible for the accused to get a fair trial. Where does defamation fit into all this if a defendant turns out to be innocent in America after being judged guilty by the media?

In the U.S., you're pretty much protected if you stick to official sources - police statements and reports, court records and statements made in court. Media "speculation" - by responsible outlets, I should say - is largely based on that. There's reluctance in a good many cases to use unnamed non-official sources - neighbors and family members and the like - absent a very compelling reason. But media practices vary widely - I've seen many UK news reports without a single named source.

In a defamation case here, the person bringing the suit must prove that the person who communicated the defamatory statement knew or should have known it was false. (Truth is an absolute defense.) If I'm a reporter who writes a piece based on information from the police in January, and new information clearing the defendant emerges in February, you can't go back and successfully sue me. At the time I wrote the article, I believed the information to be truthful.

Pre-trial publicity is a fairly difficult thing here, in my experience. I covered one trial where the defense had commissioned a poll finding that (IIRC) around 90 percent of the potential jury pool believed their client was guilty - an extremely high-profile case - and the judge declined to move it to another county, saying that biased jurors could simply be weeded out during the selection process.