# Legal Technicality - UK



## JGParis (Aug 11, 2011)

Morning all,

I am approximately 2000 words into my first novel, which opens with a stabbing/killing.

My plan is to follow the story onto the court case where the killer receives a 'get out of jail free card' due to a technicality.  The killer is caught by DNA evidence from under the nails from the fight (unless I can find anything less cliche).

CCTV will place the killer in the area at the time, but this can be rebutted by a fake alibi.  There appears to have been no motive as there is no connection between the killer and victim.

Can anyone assist me? 

Regards


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## Bloggsworth (Aug 11, 2011)

It falls at the first hurdle. A false alibi is a lie, not a technicality, and if uttered in court, is perjury .

The chances of there being 2 identical DNAs makes buying a lottery ticket look like a dead cert. Given his DNA under the victim's fingernails proves the the alibi is false unless, of course, your suspect is a time traveller. A technicality is when the police obtain the suspects DNA illegally; for instance when in his house without a search warrant, and without the suspect being warned, they steal his toothbrush in order to obtain his DNA without consent. You need to read a copy of PACE to see what is, and what is not, permissable in the gathering of evidence in England (Scottish/Welsh/Northern Irish law may well be different in subtle ways).

Oh - And on a point of pedantry, it is _owing to_, not _due to_...


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## C.M. Aaron (Aug 11, 2011)

JG, your legal technicality theory can work. You need a reason for the DNA evidence to be thrown out before trial. For this, the police must violate the suspect's civil rights in the manner in which they collect the DNA. Every few years there is a new scare about child abduction. There are kits that parents can get where they collect their childrens fingerprints and provide a DNA sample. Then if the child is ever abducted, the parents can give the kit to the police so the police can use the information to find the kid. What if the police got the suspect's DNA from his mother from such a kit? The defense could argue that the DNA had been taken from the suspect without a warrant and without his consent (he was only a kid when the DNA sample had been taken). Your suspect would have to be young enough that he was still a child in the mid-1990s when DNA first came along. Good luck, C.M.


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## Bloggsworth (Aug 11, 2011)

C.M. Aaron said:


> JG, your legal technicality theory can work. You need a reason for the DNA evidence to be thrown out before trial. For this, the police must violate the suspect's civil rights in the manner in which they collect the DNA. Every few years there is a new scare about child abduction. There are kits that parents can get where they collect their childrens fingerprints and provide a DNA sample. Then if the child is ever abducted, the parents can give the kit to the police so the police can use the information to find the kid. What if the police got the suspect's DNA from his mother from such a kit? The defense could argue that the DNA had been taken from the suspect without a warrant and without his consent (he was only a kid when the DNA sample had been taken). Your suspect would have to be young enough that he was still a child in the mid-1990s when DNA first came along. Good luck, C.M.



If the parent, being the legal guardian, took the sample from the child, then it's not a problem, it was legally obtained. The situation should not be so contrived that it is transparent to the reader that it was a mechanical fix to get round a problem with the plot.


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## Raging_Hopeful (Aug 11, 2011)

This is why I don't write murder mysteries ^.^ The complexities and dualities of the legal arena have always astounded me. Thus I am impressed when I read trial stories that are done artfully. That being said, I don't think this is an area you could really fluff around with if you don't have a well sealed plot. I have read some bad ones and they are always obvious and disappointing. I would really flesh out the mechanics, deceits, and fine details before setting out to write it out. Just my thoughts.

Cheers,
Lindsay


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## C.M. Aaron (Aug 11, 2011)

The rules of evidence vary from country to country and from jurisdiction to jurisdiction. A decision to exclude evidence is very often subjective, and it's often impossible to predict how a judge will decide. More often, it comes down to how persuasively the lawyers argue and what mood the judge is in that day. Proper procedure is for the police to show probable cause to a judge and get a warrant for the suspect's DNA. A clever defense attorney could convince a liberal judge that the police went to the mother for the DNA to circumvent probable cause. If successful, the judge could retaliate by excluding the DNA evidence.  I wouldn't be too afraid of judicial decisions sounding bizarre. They frequently are in real life.

  But if you don't like my first idea, try another: the military takes DNA samples of all members so they can identify that person's body should they be killed in action. The US military regulations governing that program prohibit the use of that DNA for any other purpose such as a paternity test or in a criminal investigation. If the police used a military DNA sample, a judge could rule that they violated the suspect's medical privacy. In other words, the state broke its own rules and should be held accountable. I know you are in the UK, but it would not surprise me if the British  military has a similar DNA program. I do not know how strong medical  privacy policies are there. Something like this could be an appellate issue where a lower court rules that the military DNA can be used and a higher court later overrules the lower court. This might get a conviction thrown out and the killer set free. Or you can have the DNA evidence thrown out before the initial trial. You're the writer. It's your story.   C.M.


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