In Don't Trust the Defendant — He's a Novelist!, Eugene Volokh details how the prosecutor questioned the defendant on the stand about the novel he was working on. "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?" the prosecutor says.
The defendant attempted to appeal, calling this line of questioning "nothing short of a character assassination".
We lie, but only in ways we know you will not actually believe
As a novelist, I am a bit distressed the idea that just mentioning someone is writing a novel is considered, by both sides, as bringing in something shameful and an indication of a deep character flaw.
Now, it seemed like the defendant, William Dangelo McKinney, had a lot of other evidence against him that he violently assaulted his girlfriend and then stabbed another man to death the next day, when that man came to pick the girlfriend up to take her to work.
There is a lot more to lying than coming up with a consistent narrative. There is a lot about demeanor, an understanding of what other people might or might not know, a sense of how the audience is taking the story, and a kind of low-level persistence that can masquerade as moral certainty. I'm not sure writers tend to have any of those in better supply than anyone else.
And we are certainly able to distinguish fiction from reality. That, in fact, is why we write fiction in the first place.
Should you be fined for being a novelist?
Volokh does not mention another distressing element of what happened to McKinney as a result of his foray into fiction. As the record of the appeal at McKinney v. State says in a footnote:
Although it is not apparent from the quoted portion of the record, McKinney asserts in his brief that the book was a "fictional romance novel." (McKinney's brief, p. 18.) The trial court imposed the $50,000 fine on McKinney, in part, "to make sure there's no opportunity for Mr. McKinney to profit" from publishing a novel.
A $50,000 fine for trying to write a novel? Would they similarly try to keep him from profiting from selling gardening services or even a nonfiction book on the history of hair styles? There is no indication that the novel relied for its plot or its proposed marketing on his crime. He had written the book a while before, during a previous stint in prison. It doesn't even indicate that it would take the first $50,000 of royalties, or something like that. It seems that the fine was imposed just for daring to write a book in the first place. And the $50K shows an overoptimistic view of what first published novels typically earn.
I'm not sure this case is the best one on which authors should take a stand, but I certainly it appalling that I could be charged with a crime, and then have an additional penalty imposed because I wrote a novel.
As any writer knows, writing a novel is its own punishment.
Do you think that a jury should take a fiction writer's profession into account while judging truthfulness?
And what other professions should we regard as suspiciously good at managing truth? Lawyers? Politicians? Marketing people? If the latter, I could be in for some kind of double punishment.
