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Don't Trust the Defendant -- He's a Novelist!

An odd line of prosecutorial argument.

From McKinney v. State (Ala. Ct. Crim. App.), released last month but just mentioned in the Westlaw Bulletin; McKinney was convicted of murder, and there seemed to be a good deal of real evidence against him, but here's one exchange with the prosecutor to which he objected:

Q [prosecutor]. Okay. Now, what I was getting to a few minutes ago about these bags—now, you had another bag, too, didn't you?
A [McKinney]. Yes, sir.
Q. That's the one that had your books in it?
A. Yes.
Q. Now, when you say 'books,' are you talking about books that you read that somebody else wrote?
A. I mean, I'm not exactly sure what you mean.
Q. Well, didn't you have a book or maybe more than one book that you were trying to write, yourself?
A. Inside that book bag, I'm pretty sure my book was in it maybe.
Q. Okay. Now, so you were writing your own book, right?
A. Well, I had written a book, yes....
Q. And it was a work of fiction, I assume?
A. Yes, sir.
"Q. So you at least considered yourself a writer?
[McKinney's counsel]: Judge, objection. What's the relevance of this?
THE COURT: Overruled.
Q. Did you consider yourself a writer? Writer of fiction? ...
A. I wouldn't call myself a writer, no, sir....
Q. But this book of yours is a work of fiction. But everything you're testifying here—now, you're telling us the truth today, aren't you?
A. Yes, sir.
Q. You know you're under oath and you're looking at these folks and you're going to tell them what happened that day, right?
A. Yes, sir.

Yes, the prosecution's theory—which the court seemed to endorse as at least plausible—was that, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction." Really? Doesn't sound to me like a sensible inference. To be sure, it's perfectly plausible that McKinney was lying, just as it's plausible that anyone else is lying; but I don't think that would-be novelists are any more likely to lie on the stand than anyone else, or even any better at lying (unless perhaps they are novelists of proven and substantial gifts).

Now I'm skeptical that the question was particularly likely to prejudice the jury; McKinney's appellate brief labels this "nothing short of a character assassination," but I don't think a prosecutor can assassinate anyone's characters with this wet noodle of an argument. (Note that there was no evidence of what kind of book McKinney was writing, though the brief says it was a romance novel.) The evidence was irrelevant, I think, and shouldn't have been admitted, but I think the error was harmless, and thus not a basis for a reversal. Still, the appellate court's analysis strikes me as mistaken.

Here is the entirety of the court's analysis on this point:

McKinney is not entitled to relief on this issue. As the State notes, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction .... Whether McKinney was telling the truth was very relevant and a proper subject for cross-examination." See generally Wiggins v. State (Ala. Crim. App. 2014) ("'Counsel is given wide latitude and has the right and duty to cross-examine vigorously a defendant who takes the stand in his own defense. "A [prosecutor] may ask a defendant ... questions tending to discredit [his] testimony, no matter how disparaging the question may be."'").

UPDATE: I revised the post slightly to add the "or even any better at lying" clause in the first paragraph following the long block quote.

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  • ReaderY||

    In State v. Jean 311 S.E. 2nd (1983), the Supreme Court of North Carolina held that a person who watched pornographic movies was likely to commit sexual assault, and hence his viewing behavior was directly probative of his guilt.

    This is the same Lesly Jean whose case is now better-known for completely different reasons. It was discovered later that the victim's original report described a completely different person, the police officers who investigated his case hypnotized the victim into changing her description to someone resembling Lesly Jean, convinced her it was Jean, and had the gumption to tape their hypnosis sessions. But it so happens that he had been watching a pornographic movie when arrested, the prosecution had used this fact in their case-in-chief, this had been the main basis of the appeal in the North Carolina Supreme Court, and that court, over a sharp dissent, upheld it as directly probative evidence.

  • Lee Moore||

    "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction .........I don't think that would-be novelists are any more likely to lie on the stand than anyone else.

    Not the inference I would have drawn. Whether would-be novelists are more likely to lie on the stand isn't the point. The point is that if they do choose to tell an extended lie on the stand they're likely to be a bit better at it, and to produce a lie that hangs together better, than the average electrician. Whereas when it comes to electrocuting their cheatin' spouse, electricians are likely to be better at it than novelists.

    See Dial M for Murder for a variation on this theme.

  • Eddy||

    So...how good was his novel? That sounds like the relevant question.

  • Eddy||

    I mean, I can see a great novelist like Thomas Wolfe or Stephen King trying to invent the perfect alibi...but with some other novelists, the alibi would have unexplained loose ends, unlikely coincidences...and vampires, lots of vampires.

  • perlchpr||

    "Look, officer, I'm telling you, the man was beautiful. And in the sunlight, he sparkled."

  • Angammus||

    "The point is that if they do choose to tell an extended lie on the stand they're likely to be a bit better at it, and to produce a lie that hangs together better, than the average electrician."

    Likely? Really?

    There's no basis for that judgment even with respect to published novelists (publication isn't a meritocracy, for one) and certainly none for a "would-be novelist."

  • Lee Moore||

    You spotted "likely" but seem to have missed "a bit."

    Someone who has spent many hours of labor concocting a fictional account of something is more likely to be able to generate a fictitious account of something else, than someone who is a rookie at story telling. Whether they have been published or not. Which does not mean that all would-be novelists will be better story tellers than all electricians - hence "likely to be a bit better at it."

    Few people actually get worse at things they spend a long time doing. Moving on....

    publication isn't a meritocracy

    But actuallly it is, within the limits of the real world. Published novels are, on average, better than unpublished ones, for almost any value of "better." Certainly, some people get their books published because of connections or the political need to pay off politicians, but as a rule novelists succeed because people like reading their stories.

    No doubt it may be trying if you cannot get your excellent story published while Stephen King bags a quarter of all book sales, but that doesn't mean that getting published is other than meritocratic. There's a reason why success breeds more success, in publishing as in anything else.

  • Angammus||

    "Someone who has spent many hours of labor concocting a fictional account of something is more likely to be able to generate a fictitious account of something else, than someone who is a rookie at story telling."

    Why would you think that? Just on general principle? Because I see no reason to believe it. You seem to be assuming that everyone starts at some basic level of storytelling ability.

    You are assuming that someone who spends hours working on writing a story is doing the same thing as someone who tells a story out loud. That is wrong.

    ". . . as a rule novelists succeed because people like reading their stories."

    Which doesn't make them good stories. Pick up any cheap romance novel. There are a million plot holes, weak characterization, unrealistic dialogue, and so on. Danielle Steele is a tremendously successful writer. She's not a good one.

  • Lee Moore||

    Why would you think that? Just on general principle? Because I see no reason to believe it.

    Yes, on general principle. What fields of purposeful human endeavour have you come across in which more experience tends to correlate with lower competence, and less experience with higher competence ?

    You seem to be assuming that everyone starts at some basic level of storytelling ability.

    I don't really understand what you're getting at here. Pretty much everyone will have some level of story telling ability, just as pretty much everyone has some level of running ability. Mutes and the legless aside. But story telling ability and running ability will vary in the population. The causes of diffent levels of running ability may include biology (good strong legs and lungs) and environment (eg lots of physical training, lack of childhood leg accidents) Why would we expect story telling to be dfferent ? Not only "the more you practice the better you get" but also "the more you enjoy it, the more you'll practice.)

    Seriously, what is it about story telling that makes you expect that people who like doing it and spend lots of time doing it, are going to be worse than average at it ? Do you expect this of drawing, or music, or math, or law, or plumbing ?

  • Lee Moore||

    You are assuming that someone who spends hours working on writing a story is doing the same thing as someone who tells a story out loud. That is wrong.

    Sure. But it's also right depending on the grain of the resolution. A tennis player is not doing the same thing as a squash player. But it's similar.

    I agree, telling a story out loud off the top of your head with no preparation is very different from spending long hours composing a novel on paper. (Though not so different as repairing overhead cables.) But we're not talking about impromptu storytelling are we ? We're talking about a prepared story told orally.

    If I needed someone to tell a good false story in court on my behalf, without knowing anything about my champion liar than his profession, I'd pick a politician (obviously) or a lawyer, or a journalist, or a writer of fiction, or a salesman ahead of an airline pilot, a boxer, a manicurist or a drill sergeant. Because practice and natural inclination. Of course I could be unlucky. No doubt some manicurists are brilliant liars and some lawyers useless ones. But you have to play the odds.

  • EscherEnigma||

    By this metric, other people we should slander as dishonest in the witness stand are D&D players ("I tell you, the orc is this big!"), fishermen ("I tell you, it was this big!"), politicians ("I tell you, my crowd was this big!"), journalists ("I tell you, the crowd was this big!"), lawyers (I can't think of a quick "this big" joke, but I felt obligated to include the parenthetical anyway) and all men ("I tell you, it's this big!")

    I'm not sure it's a terribly good metric.

  • arch1||

    Assessment of witness credibility depends on a number of factors - demeanor, consistency of story (with itself and other known facts and common sense), possible motivation to lie, etc.

    What seems appropriate with (even aspiring) novelists, journalists, and perhaps especially lawyers is to place somewhat less weight on consistency-of-story as indicating honesty. The reasons for this have been presented by other commenters.

    "slander as dishonest" is a pretty gross mischaracterization of this (rather obvious) observation.

  • Lee Moore||

    Danielle Steele is a tremendously successful writer. She's not a good one.

    For your chosen value of "good", no doubt. But she's waaaay better than thousands of other composers of cookie cutter romance novels who aren't getting published. Who in turn are waaaay better than millions of others who aren't even bothering to write at all.

  • Eddy||

    Not all novel-readers insist on the sort of plausibility which they may insist on as jurors hearing a case.

    Some readers find certain storytelling shortcuts appealing and buy lots of novels with plots they wouldn't believe if the plots were put across as real.

    So if a novelist wishes to commit some kind of crime, (s)he had better have specialized in realistic depictions of reality, rather than the more fanciful stuff that also sells.

  • Eddy||

    (I mean if a novelist wants to concoct a plausible alibi)

  • Lee Moore||

    Not all novel-readers insist on the sort of plausibility which they may insist on as jurors hearing a case.

    You ever sat on a jury ?

  • Eddy||

    "Not all etc...may insist etc..."

    Yeah, I think I covered my bases there.

  • Lee Moore||

    Sure. But if three out of twelve jurors can be infuenced in your favor by an untrue story of only moderate quality, then you're ahead.

    Let us not forget that it is vehemently alleged that a very poor quality liar now occupies the White House primarily because roughly 60 million Americans were too stupid to spot the lies.
    Some of these Americans will sit on juries from time to time.

  • Eddy||

    60 million Americans chose one liar over another. Many thought it was a lesser evil.

    The constitution (despite judicial misconstruction) requires 12 jurors to make sure there's enough jurors to figure out what's going on.

  • Lee Moore||

    12 jurors to make sure there's enough jurors to figure out what's going on

    Juries don't work on the basis that if one juror is smart enough to spot that you're lying, you're toast. It's the other way round. If you can spin a yarn good enough to fool the three or four dumbest jurors, then you've got yourself a mistrial at worst.

  • Eddy||

    Better than the prosecution spinning a yarn to put you in prison or worse.

    After all, the prosecution has to prove your yarn false, while it bears the burden of establishing its own yarns.

  • Lee Moore||

    I'm not sure we're discussing whether juries are a good thing.

    At least what I'm discussing is whether the prosecution has an interest in painting the defendant as a liar, and whether alluding to his experence in composing fiction might help sway a juror or two.

  • Eddy||

    I don't know. I certainly hope not.

  • Eddy||

    Unless of course it's like Basic Instinct where the suspect wrote a book about the murder before the murder took place...but that wouldn't be about showing the defendant to be a liar, it would be about showing that the defendant was telling the truth about his/her criminal plans, under the guise of fiction.

    Or perhaps the defendant wrote a book about a killer who got away with the crime by making up a clever story.

    In those situations it may be relevant enough for the jury to look at.

    But just because the defendant writes novels, or tries to...the prejudical outweighs the probative, in these cases, if you ask me.

  • KenveeB||

    But just because the defendant writes novels, or tries to...the prejudical outweighs the probative, in these cases, if you ask me.

    I agree it's pretty minimally probative, but what's the prejudice? Is there some latent mistrust of novelists that I'm not aware of? It's not like it was evidence of some crime or lie, just that he writes novels. If there's a prejudice to it because the jury might believe he's a liar because he's a novelist...well, wasn't that the prosecution's point? I just don't see any prejudice to this one.

  • TheAmazingEmu||

    That's a better argument. I think, for this argument to work, he has to be a good writer, though. Obviously, a bad writer isn't any more convincing in his lies.

    Still, this whole thing feels like the aliens from Galaxy Quest that can't tell the difference between fiction and a lie.

  • Eddy||

    Avert your eyes if he uncrosses his legs during the police interview.

  • Naaman Brown||

    I believe a novelist who writes fiction would know the difference between fact and fiction.

    I would be more likely to suspect that one of those creative nonfiction authors would be creative with the facts.

  • Longtobefree||

    At least he is/was a novelist, and not a political pundit.

  • Eddy||

    If a pundit has an alibi about what the polls say he'll do in the future, don't trust him.

  • bc15||

    "I don't think a prosecutor can assassinate anyone's characters with this wet noodle of an argument....The evidence was irrelevant, I think, and shouldn't have been admitted, but I think the error was harmless, and thus not a basis for a reversal."

    Can't we infer that the prosecution thinks the argument is effective else it wouldn't have used it? So, the defense thinks that the evidence was irrelevant and harmful. The prosecution *agrees* that the evidence was harmful, but also relevant. Since neither party thinks the error was harmless, shouldn't the only factor for reversal be whether the evidence was irrelevant?

  • David Nieporent||

    Can't we infer that the prosecution thinks the argument is effective else it wouldn't have used it? So, the defense thinks that the evidence was irrelevant and harmful. The prosecution *agrees* that the evidence was harmful, but also relevant. Since neither party thinks the error was harmless, shouldn't the only factor for reversal be whether the evidence was irrelevant?

    That argument proves too much; it would by definition apply to all objected-to evidence. But of course that's not what harmless means in the phrase "harmless error"; it doesn't refer to the direction of the effect, but the magnitude of it.

  • loveconstitution1789||

    This fits right into the common state tactic that everyone is a liar (except the police) and everyone has committed a crime.

  • JonFrum||

    I certainly wouldn't grant the guy a new trial over this. But I would sanction the prosecutor. All if fair in love and war - public trials are another matter. This country is crawling with unethical prosecutors because they keep getting away with their shenanigans.

    I'm reminded of Johnny Corcoran during the OJ trial. At one point, he said to a witness (paraphrasing) "So, there was a sock on the floor?" Witness: "Errr, yeah." JC: "You admit, in fact, that there was a sock on the floor?" Witness: "Ermmm..... yeah." JC: "Fine, fine, you admit that there was a sock on that floor. No further questions, Your Honor." The sock on the floor had nothing to do with previous questioning, and wasn't referred to again. At least Johnny's only responsibility was to his client. Prosectors presumably has a responsibility to the truth.

  • DjDiverDan||

    The Defendant's lawyer should have followed this us by telling the jury, "Don't trust the Prosecutor, he's a LAWYER! Lawyer's lie for a living!"

  • Eddy||

    Oh, dear, no, lawyers can't lie. They can spin the facts, keep the client's confidences, narrow the issues to exclude certain unfortunate facts, etc., etc., but not lie. That's out of bounds.

  • DjDiverDan||

    I guess you missed the post about the lawyer's demand letter to the newspaper based on an order to expunge an arrest.

  • Eddy||

    He just left out the part about how the newspaper's "legal obligations" were just a clever theory of the lawyer's, not backed by statutory language or court decision.

  • Joe_JP||

    "You are a novelist?"

    "Yes."

    "So, basically you are a fabulist?"

    "Well, that's one way of saying it."

    "You heard him. It said he is a fabulist, a liar. Can't trust him."

  • Eddy||

    "And I understand that you are also a thespian, an extrovert, and that you practice nepotism with your sister?"

  • Smooth Like a Rhapsody||

    And as a young man you were caught matriculating at a local college.

  • ||

    Given how many people are actively hostile to reading anything for any reason, I could see a question about whether someone writes books causing certain jurors to distrust that person.

  • Eddy||

    "And what good is a book, thought Alice, without pictures or illustrations?"

    Or explosions?

  • Careless||

    OT: Fangraphs ran an article by, apparently, a lawyer, who claimed that a baseball announcer saying of a baseball player "If he's 19, he certainly has his man-growth," Simpson said. "He is big and strong." was defamatory to the point where the player could successfully sue him

  • Eddy||

    What would the retraction look like?

  • ||

    It must be a pretty dystopian country where to be called a fiction writer amounts to character assassination. But then, more recently, references to "1984" have been a plenty in the times of the great white chief Raging Bull.

  • ||

    "So you write novels?"

    "Yes Mr. prosecutor, have you ever made a joke?"

  • Longtobefree||

    Don't trust the sheriff or the prosecutor; they swear in court all the time.

  • Jim Logajan||

    Always trust an engineer - they can't help themselves but speak the truth when questioned (pretty sure there is a Dilbert cartoon that illustrates that meme.)

    Come to think of it, how much truth is there to the claim that lawyers (or maybe just prosecutors?) try to remove anyone with formal technical training from sitting on a jury? If there is any substance to it then I would not be surprised that they operate on a lot of other specious broad character assumptions.

  • EscherEnigma||

    From some casual web-searches, I can find lots of self-professed lawyers say that "engineer" alone isn't enough to bounce, but there was definitely a strand of them saying they would bounce an engineer if they thought the technical details didn't support their case.

    That said, while I was a college student (so engineer in training) I once served on jury duty. That said, it was a college town, where about a sixth of the population either worked or studied on campus, so bouncing engineers-in-training probably wasn't viable.

  • Smooth Like a Rhapsody||

    Thinking back, how many famous novelists do you think would make good liars? Darn few, would be my guess.

  • Eddy||

    In the case of Agatha Christie, it's still not clear if she was lying.

    If she was, she kept her story short and sweet - "I had amnesia, I don't remember anything" - rather than concocting an elaborate plotline.

  • Eddy||

    Mark Twain talked about lying as an art, but didn't seem to value his own abilities that highly.

  • Eddy||

    ...unless he was lying about his abilities, of course.

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