How do you write a murder trial from the accused's point of view?

| by Walt Kessler | Ask Novlr, Writing


Not an odd ask, though I'll admit it took me a minute to think of a novel that actually does this well. The one I kept coming back to was Scott Turow's Presumed Innocent, narrated by a man on trial for murdering his mistress, and I think the reason it's stuck with me is precisely because it's such an unusual angle. Almost everything else in the genre, courtroom dramas especially, is told from the lawyer's side of the table, which makes sense, since the lawyer is the one doing something. Your accused isn't doing much of anything. He's sitting there while it happens to him. But there can be value in writing the mundane experience of court from that perspective, especially with the accused's interiority playing a part.

I sat through a few murder trials as a student, and the thing that struck me every time, watching the defendant from across the room, was how little there was for him to actually do. He wasn't allowed to speak. He wasn't allowed to react, not really, not without his own attorney leaning over to tell him to sit still. He was, for hours at a stretch, furniture with a pulse.

By the time your character is sitting at the defense table (or in the dock if you're setting this in England or Wales) a fair amount has already happened to him. He's been arrested, charged, and arraigned, which just means a judge read the charge aloud and took his plea. If he's pleading not guilty to murder, don't expect bail, or not much of it. Judges don't gamble on a homicide defendant. Then comes the long, undramatic stretch, months of it, sometimes over a year, where both sides trade evidence back and forth (discovery here, disclosure there, same idea) and argue in front of a judge, with no jury and usually no audience, over what a trial jury will and won't be allowed to hear.

Once the trial itself opens, jury selection comes first: American voir dire lets both sides question and reject jurors, sometimes for days, while the English system swears in a panel with barely any vetting at all, which I confess still strikes me as faintly reckless, though the system seems to survive it. Then opening statements, then the prosecution's case, witnesses and evidence and expert testimony, cross-examined by the defense, and only once the prosecution rests does the defense get its turn. Your character sits through the entire first half listening to people describe him as a killer, unable to answer a word of it, which is the emotional center.

Somewhere in the defense's case comes the one real decision he gets to make, whether to testify, and I don't think there's a sharper hinge in the whole trial. In the US, the Fifth Amendment means he can't be forced onto the stand, and the jury's told outright not to hold his silence against him, a protection that plenty of defense lawyers lean on hard, since a bad cross-examination can undo months of careful work in an afternoon. O.J. Simpson never testified at his own criminal trial, which the whole country watched happen in real time, and whatever you think of that outcome, it's a useful reminder that under US law, silence can be a strategic option, not a tell of guilt. England and Wales are less forgiving on this point. Since the Criminal Justice and Public Order Act of 1994, a jury there can be invited to draw an adverse inference from silence, particularly if the defendant later leans on some fact at trial he never mentioned under police questioning. A minor legal distinction, maybe, but it changes what your character's lawyer will actually tell him to do.

After closing arguments and the judge's instructions (summing up, in the UK, which I've always liked as a phrase, it's more honest about what's happening), the jury goes off alone to deliberate, and your character waits somewhere he can't control, for hours or days, with nothing to do but wait. The verdict gets read aloud in open court and he just stands there and hears it, the same as everyone else in the room. If it's guilty, sentencing often comes later, sometimes weeks later. American sentencing for murder varies enormously by state and by degree, anywhere from a fixed term to life to, in a shrinking number of states, worse. England and Wales keep it simpler : murder carries a mandatory life sentence, full stop, and the only real question left for the judge is the minimum term before parole is a possibility. American defendants usually get to make a personal statement before sentencing, allocution, their one chance to speak plainly to the court in their own words. In England and Wales, that job mostly falls to the defense lawyer, arguing mitigation on the client's behalf.

In a story about a trial from the accused's point of view, the character work is going to do the heavy lifting. You'll need to understand their internal world, and really get into their head and their voice. And research is your friend here. Go find real trials, transcripts especially, which exist in the public record for exactly this reason, and notice how much of the language is flat and procedural compared to how it gets dramatized, and how little agency the person on trial actually has in the room. Sit in a public gallery yourself if you get the chance, since courtrooms are open to anyone, and there's no substitute for watching a real one from the seats.

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