"Breaking' the Law," column by Private Investigator Meriah Crawford, Web Mystery Magazine, Summer 2005

Breakin’ the Law

In PI novels, the detectives often go around breaking the law as a matter of course, and there are rarely any consequences. Now, I do cheerfully admit the PI field doesn’t always attract the most ethical people, and it’s probably fairly common for investigators to push the envelope, whether through ignorance or simple unconcern with legalities, but there are limits. I’m going to talk about a few areas of law that are especially important for investigators, fictional or otherwise, to be aware of. (Keep in mind that every state is different, and every rule has an exception.)

Impersonating a Police Officer is one of the big ones, and it’s a crime committed with astonishing frequency in fiction. Thing is, it’ll get your license/registration revoked and your butt in jail if you get caught. It’s a crime that the authorities take very seriously. It’s also pretty easy to commit, especially if the PI makes the mistake of introducing herself as a “detective” or “investigator,” without specifying “private.” It’s a good idea to state that up front, and to emphasize it if it looks like the person you’re talking to seems unclear. Please also take a look at my last column, where I write about why PIs should never carry badges.

Tape recording is a common tool used by PIs, though it doesn’t often show up in fiction. I normally record interviews, and I rarely inform the person I’m interviewing. This is legal in Virginia, where I work, but is not legal in some other states. To find out what the law is where you are, check this site. If it is legal where a PI is working, it’s a great tool. It’s got several important functions that go beyond the obvious: it’s a way of protecting yourself from the subject claiming that you made threats or promises, or broke the law in some way; it’s a way to prove that the subject said what you claim they said; it’s a way to keep from having to write notes while you interview someone; and of course it’s a useful form of evidence for court.

One of the reasons it’s useful to avoid make notes is that writing reminds people that their statements are being saved, and that can keep them from talking. However, it’s worth noting that audio equipment is especially finicky. If there’s critical information you’ve learned, you should write it down right away, or immediately upon returning to your car or other discreet location.

A note about digital recorders: They’re becoming much more common now, and Sony and Olympus make some nice little ones with several hours’ capacity. Micro cassette recorders tend to break easily, in my experience, and it can be a hassle to keep tapes on hand and labeled appropriately. An external microphone is a good idea, regardless of the type of recorder. Radio Shack makes a decent one. It’s small and will clip on to a purse or pocket, and picks up sound well.

Breaking and Entering. Most jurisdictions don’t actually call it that, but what it boils down to is whipping out the old lock picks or tricking the landlord into opening the door, and illegally entering an office or home, or maybe a car. I’ve sat in my car more than once, staring at a building, knowing full well that the evidence I needed was in there – and also knowing how easy it is to get caught. And once caught, I would never work in this field again – after I got out of jail. Somehow in fiction, when the PI gets caught, the worst that happens is a stern talking-to. This isn’t how it goes in real life.

Fighting is a staple of PI fiction – for the men, at least. Some of the tougher female PIs, like Sara Paretsky’s V. I. Warshawski, do get into some physical scrapes, but it’s the men who really throw the punches. One of the issues with fighting is that it tends to leave marks, and that can get you arrested. It’s also easier to do serious damage than many people think. How many people have you seen on TV or in movies who were knocked unconscious by a blow to the head? Miraculously, they never have any permanent damage – but try duplicating that at home and you may find yourself with an embarrassing corpse on your hands.

Pretexting is a fancy term for lying. I read an interesting article about California PIs that suggests that it’s illegal for PIs in that state to lie in their work. I sure hope it’s not true, because you can’t really be a PI without lying. Lying itself is generally not illegal, but there are certain uses of it that are. The chief of these are lying to get financial or medical information. Basically: you can’t do it. This is an area taken very seriously right now, so it behooves the PI to use extreme caution here. It’s worth noting that clients will very often ask a PI to do things that are illegal. I’ve been asked by lawyers to get credit reports and check bank accounts for people they were involved in suing. They surely knew this was illegal (I certainly hope so), but were hoping I’d do it anyway. (I didn’t.) The PI has to have the knowledge to protect herself, because no one else will!

Trespassing is a complicated subject, partly because state laws vary so widely. The key thing is that if you gather evidence, photographically or otherwise, while trespassing on property that the subject owns, it’s going to get thrown out in court. One question you’ll need to answer is whether you need permission to go on someone else’s property, like a neighbor’s. In Virginia, I don’t – but I do have to leave if they tell me to. Try this site to find specific information about laws in your area.

Weapons-related crimes are also common in PI fiction. Remember the gun that Jim Rockford kept in a cookie jar? As a convicted felon, he wasn’t legally allowed to have a gun, but his cop friend routinely ignored it. In some states, PIs aren’t allowed to carry guns at all. In Virginia, I need to have both a Concealed Handgun Permit and a firearms endorsement as part of my PI registration. With eligibility requirements, fingerprints, fees, and annual re-qualification, it gets mighty complicated. Add to that the fact that handguns aren’t allowed at all in restaurants where they serve alcohol, and there are lots of opportunities for law breaking. Check this site for general gun laws in your state, and this site to find out what the laws are for PIs.

There’s a crime called “brandishing” that’s especially worth investigating. Something else to consider is what happens if the PI fires a weapon. I’m required to report even an “accidental discharge” to both the Department of Criminal Justice Services of Virginia and to my insurance company.

There’s much, much more to know, and of course every city, state and country has its own set of laws, some of them radically different. It’s a good idea for a writer to find a lawyer or police officer who will help with some of the details in exchange, say, for a good meal – but remember that not every lawyer or cop will have the specialized knowledge you need. Online forums can be a big help as well. My own preference, fictionally speaking, is to avoid having my PI break the law unless it’s genuinely critical to the story. And if my PI does break the law, she knows she’s doing it and understands the risks, right along with the reader. In fact, it’s a great way to build tension, show the moral and ethical content of the PI's character, and generally add depth to a story.