American criminal law allows one kind of defense that has nothing to do with the facts of the case or the sanity of the accused.  This kind of defense focuses instead on the justice process itself – everything from police or prosecutorial misconduct to claims of double jeopardy or selective prosecution. It is called a procedural defense, because it targets flaws, mistakes, or biases in criminal procedure. Maybe a defendant claims the police tainted key forensic evidence (as in the O.J. trial), or that the prosecution withheld exculpatory evidence. The idea here is simple: process is so important for justice that a flawed process breeds an unjust result. Writers can learn important lessons from this.

Prosecutorial misconduct usually translates to withholding exculpatory evidence.  Imagine a prosecutor finds a credible witness that contradicts (or even impeaches) a key eyewitness for the state, and instead of alerting the defense, she sweeps the witness statement transcript under the rug.  If the defense finds out about this secret witness, it can fight to have the conviction overturned on appeal.

Hiding Exculpatory Evidence

Hiding evidence in order to pin certain unattractive qualities on people is not just unethical; it is downright risky. Maybe a memoir or essay can escape complete reversal in a court of law (libel battles aside), but it can never reclaim respect in the court of public opinion.  Even if the characters – again, real people – do not revolt, the public can sense when a writer attempts to wield writing like a gavel, beating a character with the hammer of justice. 

Entrapment

In criminal law, entrapment occurs when police or other officials plant the seed for a criminal act – either by convincing someone to do something he normally would not, or by convincing him that a crime is perfectly legal.  Obviously, writers cannot really “entrap” characters in precisely this way. Instead, they might play with certain details to crank the narrative tension – perhaps recasting an innocent act (or at the very least, an ambiguous one) into a deeply despicable one.  

The truth is, many writers do not even realize they violate procedural ethics (not really law in this context, unless you’re talking about libel).  I have seen it again and again in workshops. The author believes that in order to tell his or her truth, only one side of the story should prevail.  Any ambiguity whatsoever represents a threat to the “truth,” because it opens up the story to multiple interpretations.  And in some cases, writers (and I have certainly experienced this) are simply not ready to see any other perspectives but their own.  They need more time to process the emotional fallout of events. 

This is why I like to leave traces of my process on my writing, as I did in the example from Boy Down, an essay about a former boyfriend named Ashley (to many people, an odd name for a male, but that was his name) who died of a heroin overdose. It keeps me accountable to myself – and to my characters and readers. By laying my process bare, I invite readers to review my case and judge my ethics – and my version of the truth – for themselves.