Drop the Pen! What Every Writer Should Know About Real Police Work: Six Terms Writers Tend to Get Wrong About Police Work

By D.L. Williams

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There are terms in films and novels that are used interchangeably, despite the fact they actually refer to different things. For example, in Stephen King’s novel, “The Green Mile,” death row inmates occasionally refer to The Cold Mountain Penitentiary as “jail,” and in the Sylvester Stallone film, “First Blood,” the tiny local lockup in the fictional town of Hope, Washington is referred to as a prison. This is not a big deal, especially when it comes to dialogue. Fictional characters flub, either because they don’t know better or, perhaps, because the writer is inserting irony. 

If you want your hardened criminal to refer to his maximum-security prison as “jail,” or you want a naïve person in your story to refer to his two-hour confinement in a local holding cell as “my time in prison” for comedic purposes, I say rock on. However, it is often evident the writer plugged in an incorrect term, not for style or characterization purposes, but purely from a lack of information or research. It’s far better to be a well-informed writer who can tweak dialogue and descriptions artistically than an author who throws out incorrect terms due to not having done their homework. Let’s take a look at the six most common terms I hear or read that are used incorrectly: 

Misdemeanor or Felony

Misdemeanors are lower-level offenses for which a person can only be sentenced to a maximum of one year of confinement. Felonies, on the other hand, are more serious and can carry an incarceration sentence of anywhere from a year to the rest of the convicted person’s life and/or the death penalty. 

Every state has its own definitions of what constitutes a misdemeanor versus a felony. Each state’s statutes clearly differentiate between the two based on the severity of the offense, how many times the person has been convicted of a crime, or the dollar value of a stolen or intentionally damaged piece of property. 

For example, shoplifting is a misdemeanor, but many states also have theft statutes that bump the misdeed up to a felony if the item or items stolen are valued above $1,000. Driving While Intoxicated (DWI) is a misdemeanor unless the driver hurts someone in a crash or if the arrestee has been previously convicted multiple times for DWI. 

There are other significant differences: People arrested on a misdemeanor are often allowed to leave jail after posting bail without first having seen a judge, whereas many states mandate a person arrested for a felony-level offense is seen by a judge who will set the bail amount before release. Convicted felons are not allowed to vote or own a firearm in many states, oftentimes for life, whereas most misdemeanors can be expunged (legally erased) after a period of time.  

Jail or Prison

Jails are holding facilities used to detain people accused of a crime or who have been convicted of a misdemeanor offense and sentenced to less than one year of confinement. Prisons, on the other hand, are only for people who have been convicted of a felony and who have been sentenced to at least one year. 

Things can get tricky here, so tighten your hat strap. People arrested for felonies will be held in jail until they are convicted. Remember (and I don’t say this lightly), people are innocent until proven guilty in a court of law, so what they’re initially arrested for may be quite different than what they’re sentenced for at trial. Thus, potential felons will be held in jail until trial (or until they agree to a plea bargain). Many jails segregate those accused of violent felonies from misdemeanants, but this depends on state statues, local policies, the physical size of the jail, and manpower resources. Thus, someone arrested for stealing a loaf of bread could well be in the same jail cell as someone arrested for murder. 

Probation or Parole

Probation and Parole are terms used to describe the condition of release from confinement following sentencing. They are used so interchangeably that they have become colloquial synonyms. They are different, however. Someone on probation has been convicted of a crime, misdemeanor or felony, but was not sent to prison. They may serve jail time, pay fines, do community service, but they never set foot in a prison for the crime they committed. Parole, on the other hand, is exclusively for convicted felons who have spent some time in prison. 

The difference between probation and parole may be insignificant in a conversation between two characters in your WIP, but it is significant in terms of the conditions of release. People on probation may be court-ordered to do certain things such as keep their probation officer apprised of where they live or work, take an occasional drug test, or do community service in lieu of jail time. 

People on parole, however, are only allowed to leave prison based on good behavior and an agreement to give up certain rights upon release. Most significantly, parolees generally give up their Fourth Amendment protections against government intrusions into their privacy. Thus, a parole officer can search a parolee’s house, demand an immediate drug test, require a detailed list of friends and family members, and insist on being privy to just about every move a person recently released from prison makes. 

The street lingo for someone on parole is that they are “on paper.” Your fictional detective will want to know if a parolee she’s interrogating is on paper, and she may want to get access to that person’s “chronos,” the written reports filed by prison and parole officials documenting how that person behaves, if they were often in trouble or were a model prisoner while incarcerated, if they’re going to their court-mandated therapy sessions, or if they’re making progress with drug rehab, etc. 

Police officers do not have the authority to intrude into a parolee’s private spaces (home, car, bodies, etc.). A common scenario when a cop is investigating a person on parole is for the detective to contact the parole officer and detail why their parolee is a suspect in the latest crime. The cop can’t order or even ask the parole officer to perform a search, but the parole officer can offer of his own accord. Generally, the parole officer will then invite the detective to come along and help out on the search. This is an end run on the Fourth Amendment. This is, by definition, a warrantless search, and, in my opinion, should only be used as a last resort and only if the crime being investigated is especially egregious. 

Bail or Bond

Bail and bond are probably the most confused terms I see in prose and in screenplays. Bail is the amount of money set by the court as a condition of release prior to trial. No one wants to sit in jail for weeks or months awaiting a court date, and the Eighth Amendment requires that the bail amount not be excessive. People who complain that judges are “soft” for allowing an accused person to pay bail and leave jail before their court date simply haven’t read or don’t understand this section of the Constitution. 

People who do pay the bail amount will get a refund when they show up for trial, but they forfeit the money if they “Fail to Appear” (often referred to as FTA), at which point the judge will issue a warrant for their arrest. 

Bail bonds, on the other hand, are posted by a bonding company or an attorney. It’s like a loan, only with heavy interest. Most bail bond companies don’t actually have to pay the court anything unless their client doesn’t show up for court. If that happens, bail bond companies will go looking for the person who burned them, and they’ll set a bounty hunter on the accused person’s trail. 

All of these terms are interchangeable in most people’s minds, which means you have wiggle room when it comes to how your fictional characters use them. Write your dialogue based on what you imagine your good guys and bad guys would know and say, but always do so from a position of insider knowledge.

Drop the Pen! What Every Writer Should Know About Real Police Work: You Have the Right to Learn About the Miranda Warning

By DL Williams

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“You have the right to remain silent. Anything you say can be used against you in a court of law…or in a good tabloid story.” Leslie Nielsen in the 1988 police comedy, The Naked Gun.

Once upon a time there was a fellow by the name of Ernesto Miranda who did not play well with others. He spent the bulk of his life in jails and prison, and that revolving cell door pattern would continue for the rest of his life until he died from stab wounds incurred during a 1976 bar fight. His life was one of rage and pain and waste. 

But he changed criminal investigations forever. 

In 1963 Miranda kidnapped and sexually assaulted an eighteen-year-old woman in Phoenix, Arizona. The woman Miranda attacked was able to provide a solid description, as well as the make, model, color, and partial license plate of his pickup. Phoenix P.D. officers picked him up, whereupon detectives put him in a lineup and interrogated him until he confessed. Miranda was found guilty at trial, which is when the story takes a turn. 

The case was appealed all the way to the Supreme Court, where the conviction was thrown out stemming from the fact the detectives had not adequately ensured Mr. Miranda understood his Fifth Amendment right to be silent while being questioned as a criminal suspect, as well as his Sixth Amendment right to have an attorney present during interrogation by the police. 

To be clear, the Phoenix officers did some solid police work, but the times, they were a-changin’, and so was legal precedent. Few police professionals had thought about reminding suspects they had constitutional rights, and the very idea of giving people accused of violent crimes such a reminder would have been about as popular as a cop walking into a squad room wearing a duty belt under a tutu.

The Miranda vs. Arizona ruling changed everything when it came to police interrogations. Nowadays, as I’m sure you’ve surmised from police procedurals in films and novels, officers dutifully issue the warning at the point of arrest as a matter of routine and departmental policy. 

I wonder how many times we’ve heard fictional cops recite the Miranda warning on television. I bet you could list the whole thing from memory the next time you make a citizen’s arrest.  I should point out a couple of things before we continue: 

1. It’s best to not have your cop character recite Miranda from memory. I’ll tell you why in a minute.

2. Most of the time, it’s best to avoid making a citizen’s arrest in real life. It’s dangerous, it can get you sued, and you’ll end up on someone’s social media feed looking like a big old citizens’-arrest-making doofus. 

It's conceivable you’re writing about a police detective or patrol officer who will wind up reading the warning. You have some wiggle room depending on how detailed you want to be with the project, so let’s examine a few ways Miranda can or should be applied so that you can make informed decisions as you delve deeper into your work in progress. 

The Miranda Warning must be read to a criminal suspect if that person is not allowed to leave and the questions to be posed by the police investigators could be used against the suspect at trial. Both elements must be in place for the warning to be required. So, your protagonist might make an arrest but have no plans to ask follow-up questions. In this case, your fictional cop might not give the Miranda Warning at all. 

An example is the arrest of a man for an outstanding warrant for failure to pay child support. The warrant was discovered when a patrol officer pulled him over for speeding through a school zone, and a check of the driver’s license through the National Crime Information Center (NCIC) resulted in a warrant “hit.” The officer in this scenario has no involvement in the child support case, so there is no reason to ask questions about it. Thus, the officer would most likely serve the warrant but not ask the suspect anything about it. 

An investigator may also opt against giving the warning if she wants to ask potentially incriminating questions but has no plans to make an immediate arrest. In this instance, she could ask questions as long as she lets the suspect leave when questioning is done. This is a legally sound strategy, albeit a risky one. Conceivably, the suspect could confess to the beheading of his ex-wife, and the detective would still have to let him go. That’s not to say she couldn’t go get an arrest warrant and pick him up later, but an axe murderer is walking the streets in the meantime. 

I used this technique twice in my career. In one of those instances, I was out on a case and working alone. I suspected a young man of participating in a gang-related shooting the day before. I’d learned from an informant that the man had helped the shooting suspect by picking up the spent bullet casings at the crime scene. He was in hot water for tampering with evidence, but he was also a witness to the actual shooting. I needed him to cooperate, and I had to make some quick decisions to make that happen. 

The young man was stronger and faster than me. Arresting him alone could have gotten someone hurt (probably me, if we’re being honest), and it also would have shut down any chance of getting him to talk to me. Asking him questions about the part he played in the aftermath of the shooting would incriminate him, but I was certain giving him his rights in that moment would have spooked him. Thus, I asked about the shooting and suggested (honestly) that his cooperation could help him if and when he was arrested for the evidence tampering charge. 

Using this tactic requires officers to be fully transparent about their intentions. Suspects can’t read minds, and many believe they are not free to go at any time. It is incumbent upon the officer to make it clear throughout the interview that the person being questioned is not in custody. Thus, an investigating officer would literally say, “Listen, you’re free to go, but I’d appreciate a few minutes of your time.” 

This also means the officer’s body language must match what she said. She can’t stand between the person being questioned and the exit door so there is no confusion about how and where the person can leave. Your fictional detective will likely keep the conversational tone light, and it is always best practice to record the conversation, so judges and juries know she was upfront with her intentions and upheld her commitment. 

I mentioned earlier that it is a good idea for cops to refrain from giving the warning from memory. It looks slick on film, but it can be awkward in real life if you stumble over the wording or leave out one of the required elements entirely. This can happen when adrenaline is up, so every detective I’ve ever known carried a laminated copy of the warning in their badge wallet. 

This can also be a crucial element at trial. A defense attorney might ask the testifying officer if he gave the warning from memory. An inexperienced officer might answer, “I did it from memory,” with a smug look on his face, thinking this is some sort of IQ test he just passed. 

Unfortunately, his day just got a little longer, because the next question out of the attorney’s mouth will be, “Would you please recite that for us now…from memory.” 

I don’t care how tough you are or how comfortable you feel talking in front of a judge, jury, the accused, the lawyers for the accused, and an audience watching the trial. You are going to mess up when called upon to recite under such duress, at which point the attorney will make hay out of the suspicion you didn’t correctly provide the suspect his rights. 

Conversely, if you testify you read the Miranda Warning off a laminated card, the attorney is likely to drop the entire line of questioning. It’s safer and more professional, and it is simply a better way to get the job done. 

I have one more thought on the Miranda Warning. Yes, it can be a bit of a hassle, and it might be the catalyst for the suspect to clam up and ask for a lawyer. It is also true that hardened criminals who have been in and out of prison most of their life know the warning as well as you or I. However, I came to a conclusion some years back that the warning is also a reminder to good police officers that the people we suspect of horrible crimes are still endowed with certain rights. We’re the good guys, and remembering to treat even the worst offenders as suspects instead of as guilty by our own opinions is how we stay right with the law and with the ethics we swore to uphold. Onward!