# Would this evidence be admissible in court in this case?



## ironpony (Oct 5, 2016)

I have a number of ways to build to an ending for my story, and kind of like this one but wanted to know if it would be legally plausible.

Basically, it's a thriller, and the MC wants to nail the villains and resorts to desperate and unorthodox methods to do so.  I was thinking that he he could kidnap the members of the gang, perhaps along with an ally who is helping him, and they could hold the gang members hostage, knowing that the gang leader cares about his members.  Or they could even kidnap the leader's loved ones maybe.

They could tell the leader that he has to go to the police with evidence of his crimes, or his friends will be killed.  The evidence he turns over, has to be good enough to get indicted on the spot pretty much and not waste any time... and the charges have to be to what the kidnappers agree, so the evidence must support those chargers specifically.

The leader villain then is forced to get the evidence, at gunpoint by the MC , while his ally watches the hostages.  The villain is then for forced to walk into the police station with the evidence and give it up.  The villain decides to tell the police that his friends are being held hostage, and that it's a kidnapping, hoping that the police can help, cause he does not want his friends to die.

However, under this plan would the police be allowed to use the evidence he brought in against, him, since it was brought in by force?  The MC kidnapper is a cop, so it would be fruit of the poisonous tree, technically, but if the MC wore a mask and gloves, and got rid of all the physical evidence, and the villain was not able to prove it was the MC, or that he recognized him, could the MC's plan work?

Evidence that is obtained illegally has worked in real cases, such as someone breaking into a house, finding the evidence, and then turning it in, as long as that person could not be proved to be a cop.  But, in this case, it's a kidnapping, by an anonymous kidnapper, forcing the man to turn over evidence. And if he is indicted, from the evidence, the kidnap victims will be released by the MC.  But they as well could go to the police and say they were kidnapped by two masked men.  But would the police still be able to use the evidence against them?


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## Olly Buckle (Oct 6, 2016)

I guess it depends on the area of jurisdiction whether they method of obtaining evidence affects its admissability if it is reliable, in most jurisdictions your hero would be guilty of a number of very serious crimes. It is hard to imagine any serious police officer tolerating kidnap and threats to murder , let alone committing  them. This is a fantasy situation they would be hunted down, using modern forensics it wouldn't be too hard in the real world. This being the case I can not see why you should be concerned about the legal niceties; you are writing a detective fantasy, go ahead and fantasise. With the freedom that would give you you could introduce all sorts of things from time travel to the supernatural and create something entertaining.


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## ironpony (Oct 6, 2016)

Okay thanks.  But the police would not know it was a cop who was the kidnapper, or would not have proof, if the cop manages to wear a mask and get rid of all the evidence maybe?


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## Bloggsworth (Oct 6, 2016)

Evidence given under duress is not admissible, so the defendent's lawyer/attorney just has to ask the question.


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## ironpony (Oct 6, 2016)

What question is that?


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## Bishop (Oct 6, 2016)

ironpony said:


> What question is that?



I assume he means for the attorney to make a motion to dismiss the evidence. Which the judge would. Pointing a gun at someone and forcing them to confess is not considered a confession, same goes with evidence.


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## TheWonderingNovice (Oct 6, 2016)

Also your MC has also commited a crime. Cop or not he will be tried as well.

The evidence that the criminal turndd in is also inadmissible because obtained illegally.


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## ironpony (Oct 6, 2016)

Yep but since the MC would be wearing a mask and gloves and would clean up the kidnapping scene, no evidence would point him directly.

I thought that the evidence would count as long as the evidence was accurate enough to nail the suspect to past crimes in specifics, such as evidence only the real perpetrator would have.


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## Sam (Oct 6, 2016)

Evidence given under duress is never admissible, no matter what it reveals. 

If someone points a gun at your head, you'll say anything they want you to say.


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## ironpony (Oct 6, 2016)

That's true, but you are talking about confessions.  Basically in my story, the villain would be forced to reveal evidence, that is so accurate, that he couldn't conjure it up out of his own head, out of desperation.  It's true that if you point a gun at someone's head, they will say anything they want me to say.  But what if you pointed a gun at someone's head and said something like "where is the dead body of so and so, with your DNA all over it?  Only the real killer would know where the body is with his DNA on it, so wouldn't that hold up more, compared to just saying what the gunman wants you to say?

Okay let's say the villain goes to the police and says "Help my family is being held hostage.  They want me to deliver a dead body as evidence that I committed murder, or they will be killed".  If the cops ask him if he has the dead body and he says yes, and shows them where he buried it, in order to satisfy the kidnapper.  Is the villain really not going to get in any trouble at all since he was forced to give up the dead body, even if his DNA or blood is on it?


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## Jay Greenstein (Oct 6, 2016)

> Evidence that is obtained illegally has worked in real cases, such as  someone breaking into a house, finding the evidence, and then turning it  in, as long as that person could not be proved to be a cop.


Nonsense. Evidence obtained illegally is, and has been inadmissible in criminal cases since 1914, for obvious reasons. And the exceptions  added over the years are not remotely close to what you say you want to use. You can have learned that by doing the most basic of research, like Googling, "is evidence obtained illegally admissible?" and, "when is illegally obtained evidence admissible," 

Given that the definitive answer would be yours in seconds, you cannot be asking this question for any other purpose than to get people to respond to your posts.

You've been doing this, supposedly gathering information for your story, for well over a year, here and on many other writers boards—_yet you seem to know no more about how the story will go than on the day of your first post._  In that time You've posted not a word of your work here or anywhere else. Yet you talk about the reactions of "readers" who are never identified.

You either have the worst case of analysis paralysis I've ever encountered, or you're not actually writing, only looking to make people dance.

So as a point of interest, given that you've been "working" on the same novel for so long, how many words do you have written? And when will we see a sample?


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## ironpony (Oct 7, 2016)

Oh okay.  I was told by a cop in my research that evidence obtained under blackmail, by a private person can be admissible, just so long as the court doesn't know it was a cop.  If the court doesn't know that, than it is technically admissible, he said, cause under the limitations of the exclusionary rule, a private citizen can obtain evidence through blackmail, he said.

Here are the limitations of the exclusionary rule according to wikipedia:



> Limitations on the exclusionary rule have included the following:
> 
> Evidence unlawfully obtained from the defendant by a private person is admissible. The exclusionary rule is designed to protect privacy rights, with the Fourth Amendment applying specifically to government officials.[SUP][22][/SUP]
> Evidence can only be suppressed if the illegal search violated the person's own (the person making the court motion) constitutional rights. The exclusionary rule does not apply to privacy rights of a third party.[SUP][23][/SUP] However, there is a narrow exception to this standing requirement, the _jus tertii_ standing exception.[SUP][24][/SUP]
> ...



Wouldn't the first one count as admissible since the court doesn't know it was a cop?  It's okay if it doesn't, I just don't see the distinction since it clearly says that a private citizen can commit a crime in obtaining evidence, and the evidence will still be admissible.  And since the court doesn't know it was a cop, wouldn't the same principle apply?


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## Olly Buckle (Oct 7, 2016)

s the evidence purely, or mainly , in the form of hearsay verbal or written evidence or does it include physical evidence? I don't  know about American courts but I can imagine a British court taking a very poor view of the former whilst accepting the latter.


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## ironpony (Oct 7, 2016)

Well what if the unknown kidnapper extorted the villain into producing a murdered body for the police with the villain's DNA on it?  Would that be enough physical evidence, or would that not be admissible as well, since the villain was forced to produce it, under duress?


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## Bishop (Oct 7, 2016)

ironpony said:


> Basically in my story, the villain would be forced to reveal evidence, that is so accurate, that he couldn't conjure it up out of his own head, out of desperation.



This is in violation of the 5th amendment, particularly the part on self incrimination. Being forced to incriminate yourself under duress, whether confession, evidence, or testimony, is a violation of rights.


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## Olly Buckle (Oct 7, 2016)

What if the police were directed where to find a body? They discover the evidence of the body, and from that extract evidence linking it to the killer. Like I say I am not American, but it seems to me that the main thrust of the 5th is to protect individuals when they have already been arrested from being forced to make statements. If they freely make a statement before they are read their rights that can be used. The killer might say he was forced to reveal something to the previously unsuspecting police force, in the absence of any evidence to that effect might the court choose to believe he was 'forced by his concience'.

I still think that you are making life hard for yourself, ironpony. Why bother looking for legal niceties which give you a way around things when your hero is basically acting as a vigilante and violating all the basic principles of the rule of law? It is a story, why not go the 'Die hard' route where nobody gives a damn about legality? It gives you the possibilty of great lines like 'You feeling lucky, punk?' rather than dry courtroom stuff, and nobody really cares if it is a good story.

Still think you should bring in a supernatural element


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## ironpony (Oct 7, 2016)

I could have it go Die Hard, but I am writing this story with a sequel in mind, which means if the hero were to kill the villains, I need a legal basis for him to get away with it.  Like for example, he could kill the villains and make it look like self defense as an option.  But he would still need a legal reason for being where the villains were all meeting up at the time.

I thought that being forced to admit evidence into court, only counts as violating the 5th amendment if the court forces a suspect to do it.  I read that if person who is not proven to be a cop or state agent, forces the person, then it can be used.  When you say go all Die Hard on the villains, do you mean kill them?  I guess I feel it it such a cliche to have the hero off the villain, and I wanted the vigilante hero, to manipulate the system, using the systems own loopholes against itself, in getting the villain, and I thought it would be a lot more interesting, compared to just killing them, if that's what you mean.


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## Olly Buckle (Oct 7, 2016)

Die hard has sequels, that guy dies so many times  Nobody ever mentions legalconsequences, that is one way round them


> I thought it would be a lot more interesting, compared to just killing them,


More interesting to whom? Interesting to write maybe, but the general public loves the Charles Bronsons and James Bonds of this world, they like stuff happening, so no, not 'just' killing them, but killing them with panache and style. I have not seen your actualwork, but it feels like it might all be a bit logical, ordered, and boring and be improved for letting yourself go a  bit. This is fiction you are writing, your readers are willing to suspend their disbelief and be carried away for a bit.

Okay, the Bronsons and Bonds may be going to the extremes, I am inclined to exaggerate a little at times, but letting yourself go can work.l


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## ironpony (Oct 8, 2016)

I guess the difference is that in Die Hard and Death Wish, the villains are a threat at the end, like they are trying to get away with a dangerous crime that the hero has to stop.  Where as in mine the villain has already gotten away with the crime long before, and is laying low, and is not a threat at the current time, and just minding his own business, which makes it tougher to get away with.


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## Ptolemy (Oct 9, 2016)

ironpony said:


> That's true, but you are talking about confessions.  Basically in my story, the villain would be forced to reveal evidence, that is so accurate, that he couldn't conjure it up out of his own head, out of desperation.  It's true that if you point a gun at someone's head, they will say anything they want me to say.  But what if you pointed a gun at someone's head and said something like "where is the dead body of so and so, with your DNA all over it?  Only the real killer would know where the body is with his DNA on it, so wouldn't that hold up more, compared to just saying what the gunman wants you to say?
> 
> Okay let's say the villain goes to the police and says "Help my family is being held hostage.  They want me to deliver a dead body as evidence that I committed murder, or they will be killed".  If the cops ask him if he has the dead body and he says yes, and shows them where he buried it, in order to satisfy the kidnapper.  Is the villain really not going to get in any trouble at all since he was forced to give up the dead body, even if his DNA or blood is on it?



Well, does the villain know that the Kidnapper is the cop? I think under a court of law that it could get thrown out, don't quote me but that would be a forced confession with evidence (which in my knowledge is illegal), which if the villain has a decent lawyer could see that he was forced to give up and call it for it to be thrown out even if he did commit the crime and their was evidence.

(Note: Also him giving up the evidence, the body, basically is a confession to the murder. Their is nothing around that he is confessing to it by giving up the body.

It's honestly a very odd legal predicament.

Also why hasn't he pitched the body into a river or ditch?


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## ironpony (Oct 10, 2016)

The villain will naturally suspect the kidnapper is the same cop who has been pursuing him much more harder than the rest of the department, probably.  But he cannot say for sure, since the cop would be wearing a mask and disguising his voice, logically.

He buried the body and the MC is making him give it where it would be buried.  If you throw the body into a river or ditch, it will be found, where it can be investigated, but burial, means that no one may ever find it in the villain's remaining life time, which is why he buries it.

Perhaps I could not have this be the climax to the story though. The idea of evidence being tainted as a result of a kidnapping is an interesting idea. What if I moved this idea to earlier in the story.

What if the villain did not want the police to find a dead body and use it as evidence against him for murder.  So the villain arranges a fake kidnapping, where he will go to the police and tell them that someone kidnapped his friends for ransom... and that the ransom demand is that he turn over a dead body, or his friends will be killed.  He then leads the police to the dead body, hoping the kidnappers will release his friends, after he complies with their demand.

But it's not a real kidnapping.  The villains friends will then go to the police and say that their kidnappers released them, after the villain followed through on the kidnappers demands.  It's a all fake kidnapping, ransom, and release afterwards, all to make the police believe the villain gave up the body, out of coercion, thereby making the body inadmissible as evidence.  So the villains gets away with murder based on tainting the body legally, that way.  Do you think that would be a better legal scenario, and it would realistically work better, if I moved to earlier in the story, and it's all a ruse by the villain to taint the evidence?


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