# Are there any lawyers or legal experts that can help with this law in my plot?



## ironpony (Aug 1, 2016)

My story is a thriller, set in modern day America, and in it, the leader of a gang, recruits members by giving them blood ins. A blood in, is a term for when a new recruit has to spill the blood of another person to join the gang.

The leader of the gang video recorded all of the blood ins over the years, in order to have insurance on his members in case any of them turn on him. He arranged for the recordings on any of them to go to the police should that happen, and he cannot find where the member is, if so.

I wrote it so that in the ending, the police discover all the blood in videos and use that as evidence to prosecute each member. But I was told by a couple of readers that this is a plot hole, because the police are not allowed to use videos of murders as evidence, because technically the videos can be 'hearsay', since there is no way to prove that the victims in the videos are the actual victims, and they could have been actors in make up and the whole video could have been forged. Therefore it's hearsay and would be admissible as evidence.

However, the villain doesn't any logical reasons to keep any other evidence of his gang's crimes around. But if the blood in videos would not be admissible, he doesn't have a reason to have videos as leverage now either.

So I was wondering, if videotaping the blood ins, would count as hearsay in court, what else could the villain do to use as leverage on his members, that could be legally used against them, should they betray him?


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## Ultraroel (Aug 3, 2016)

I find the idea of a legal way of dealing with gang members a bit weird in general..
If he is a gang leader and they deal with violence etc.. why not just resort to violence instead of allowing them a chance to betray him for a lower sentence in jail..?


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## ironpony (Aug 4, 2016)

Well it's too keep them at bay.  They can resort to violence but what happens if they cannot find the gang member, or if the gang member turns them in already?  Basically the blood in videos are used as a last resort, if it's too late, and trying to use violence, has failed.  Does that make sense?


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## aj47 (Aug 4, 2016)

If you're looking for a lawyer to help with your research, you might try a local find-an-attorney Web site.  Usually the first hour is free.


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## riverdog (Aug 4, 2016)

A video tape is not hearsay.  See Fed Rules of Evidence Sec 801. Hearsay is a statement. 

Such as...

"I heard her say your momma was fat."

"objection, your honor. Hearsay and no exceptions apply."

"Sustained."




Sent from my iPad using Tapatalk


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## Bloggsworth (Aug 4, 2016)

If videotapes are not evidence, then a lot of people should be released immediately. CCTV is used in a lot of prosecutions so why not video tapes if the person who did the filming admits that he made the films.


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## riverdog (Aug 5, 2016)

https://www.law.cornell.edu/rules/fre


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## alanmt (Aug 5, 2016)

Riverdog is right. A video recording is not hearsay.


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## aj47 (Aug 6, 2016)

alanmt said:


> Riverdog is right. A video recording is not hearsay.



Unless it's destroyed and people are talking about what it contained.


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## riverdog (Aug 7, 2016)

astroannie said:


> Unless it's destroyed and people are talking about what it contained.



Correct.  Then its statement.  Not a video.   A video tape is never hearsay.  You may have issues authenticating it, but for a fiction story, seriously, who gives a shit? 

If your have more questions about evidence, PM me.


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## ironpony (Aug 13, 2016)

Okay thanks.  I was told by a lawyer that in my story, the video is delivered to the cops by an anonymous person, and the person calls in anonymously, giving instructions as to who is on the video and what happened.  It's hearsay, cause the cops would be quoting an anonymous person's instructions as to who is on the video, and therefore, the video cannot be used cause the source is anonymous, and her instructions as to what the video is, would be hearsay.

So if the instructions to who is on the video is brought about by hearsay, then the whole video itself becomes part of the hearsay, I was told by the lawyer.


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## Sleepwriter (Aug 14, 2016)

It's a video, and as long as the people in it are recognizable than there is no need to explain who is in it.  Now if they are wearing masks or their faces are not clear then the video is useless.


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## ironpony (Aug 14, 2016)

Okay thanks.  But even though the faces in the video are recognizable, the police do not know who they are.  It will still have to be explained as to who they are and what they are doing, no?


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## Sleepwriter (Aug 14, 2016)

Forgive me if I'm wrong, but I thought the main video was for a corrupt cop who joined the gang.  I think the cops would know him. also if it is a gang, some or most of the members are probably in the system, so they would be known as well.


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## ironpony (Aug 14, 2016)

Yes the cops find the video with the corrupt cop in, but I wanted them to find the videos of the other members before.  I don't want the other members to be in the system though, because earlier in the story, the gang of crooks commits a series of kidnappings and murders, and are not caught.

If they leave any DNA on the victims, then their DNA will be in the system, if they have a record.  This would cause them to be caught a lot sooner.  Since I want them to get away with it, I don't think I can have them be in the system already, and have the story work, if I don't want any trace of their DNA left at any murder scenes, if it is to be on file, can I?


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## Sleepwriter (Aug 15, 2016)

It's your story, you can have the cops work as fast or as slow as you like.


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## Spring Wind (Aug 15, 2016)

Your post reminds me of Leon Uris' book QB VII. That book was a legal drama that, while the 'technical' part of the story was somewhat flawed, the real story was the actual process of the British Courts.

Let's look at your imagined story line: The police want to use the videos. The defense wants them excluded. There's a lot of material there for expansion .... how did the videos come to light, the exact relevance of the videos to the story, the courtroom haggling over them. The simple existence of the videos - even if excluded- would surely influence thinking within the prosecutors' office, and give the defense pause.

As for the tapes themselves, one can discuss someone's "expectation of privacy," the quality of the tapes, what is NOT shown on the tapes, etc.

I can think of many legal thrillers where the story hinges on some bit of evidence that can't be used ... yet is persuasive enough to motivate one side or the other.


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## ironpony (Aug 15, 2016)

Okay thanks.  Well I found a legal loophole in my research.  If the police follow the villain and watch him bury the tapes underground, and it shows that he had them buried underground, outdoors, then the tapes can be used legally, cause they were not on any private property, and it's more like a finder's keeper's situation for the cops.  So I could write it so that they seem him bury the tapes underground, if that simplifies the plot and improves the story as a result.


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## ironpony (Oct 17, 2016)

*Can hearsay be allowed in court in this case?*

Basically hearsay is not allowed when it comes to prosecuting the defendant.  However, could hearsay be allowed in exonerating the defendant?  Basically in my story, a person has information to get the defendant off of different felony charges.

But the witness is not going to want to come forth, cause if she admits to what really happened, it could damage her reputation.  Even if she doesn't go to court and just give statement, she could still be subpoenaed for cross examination, and it will be public.  So she doesn't want the public to know about what she did or how she knows the defendant.  So if she is only willing to to talk to the prosecutor or the defendant's attorney 'off the record', and give no official recorded statement, can the hearsay be used, for the judge to make a decision to exonerate the defendant?


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## Phil Istine (Oct 17, 2016)

ironpony said:


> Basically hearsay is not allowed when it comes to prosecuting the defendant.  However, could hearsay be allowed in exonerating the defendant?  Basically in my story, a person has information to get the defendant off of different felony charges.
> 
> But the witness is not going to want to come forth, cause if she admits to what really happened, it could damage her reputation.  Even if she doesn't go to court and just give statement, she could still be subpoenaed for cross examination, and it will be public.  So she doesn't want the public to know about what she did or how she knows the defendant.  So if she is only willing to to talk to the prosecutor or the defendant's attorney 'off the record', and give no official recorded statement, can the hearsay be used, for the judge to make a decision to exonerate the defendant?



I don't know, but I would be very surprised if this were allowed because it would deny the prosecution the opportunity to challenge.


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## ironpony (Oct 17, 2016)

Well at the same time, even if the prosecutor could not challenge it, the judge would not want to send a legally innocent man to jail though, right?  Or I could write it so that it's not allowed, and that the witness may be forced to make some sort of recorded statement, but only if that's the case as to how it would work.


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## Ptolemy (Oct 17, 2016)

Back at it again with your crime thriller? 

To my knowledge of criminal court proceedings, hearsay is very rarely if ever allowed in court. The reason is that it had no meaning in court, it's basically a rumor and would never be taken seriously in the court of law. This all depends on the judge though, there have been a few judges who take the hearsay into account but don't put towards evidence because it's simply not evidence in the slightest. 

Also, is this a trial by Jury or just the judge handing down the verdict?


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## ironpony (Oct 18, 2016)

Yep, back at it again.

I know hearsay is not used as convicting evidence, but in this case it's an exoneration, so would it be used to exonerate?  Well basically this is not trial but a preliminary hearing at this point.  The judge as to decide if there is enough to go to trial.  There is technically, accept for the word of a witness, who is not willing to go on the record, and this word compromises all the other evidence though.  Now normally hearsay cannot be trusted but if the police were to come to the prosecutor saying this is what the woman told us off the record, would the hearsay have added weight to it, since it's the police who are reporting it?


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## Sleepwriter (Oct 18, 2016)

I swear you have asked this before.   It's too early for me to go digging.


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## Ptolemy (Oct 18, 2016)

http://www.writingforums.com/thread...lp-with-this-law-in-my-plot?highlight=Hearsay



Sleepwriter said:


> I swear you have asked this before.   It's too early for me to go digging.



Technically he has, took me only 10 seconds, this is the closest thing I could find but it's sort of a different question but it's still about hearsay


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## Sleepwriter (Oct 18, 2016)

Ptolemy said:


> http://www.writingforums.com/thread...lp-with-this-law-in-my-plot?highlight=Hearsay
> 
> 
> 
> Technically he has, took me only 10 seconds, this is the closest thing I could find but it's sort of a different question but it's still about hearsay




Thanks.  Different story, but same question.


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## ironpony (Oct 25, 2016)

Well I keep doing real research and asking lawyers and cops, but they have different things to say, and none of them can seem to agree.  Some say that hearsay is allowed under so and so exceptions, and others say no, they're wrong, and I have no idea what to believe, and cause not even the professionals seem to agree on anything.  If this is the case, should I just make things up, when it in doubt?


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