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From: keithk@guvax.acc.georgetown.edu
Newsgroups: alt.folklore.urban
Subject: Legal Loopholes Examples (long)
Date: 13 Feb 94 15:26:30 -0500

In article <14.19259.842.0NAC57A8@select.infi.net>, ed.hackett@select.infi.net (Ed Hackett) writes:
 [...]
> The po-lice had arrested a serial murderer. Caught him red handed so to speak.
> He was released by a commielib, bleeding heart judge on a "technicality," seems
> his "rights" were violated during the arrest.
> 
> It occurred to me that this kind of thing has become an UL. Everyone's heard of
> cases like this one.
> 
> Is there any basis in fact for these UL's?

The "technicality" in question usually turns out to be some really 
obscure point of law like the Fifth Amendment.  Some of those 
commie-symp judges expect a red-blooded patriotic street cop, risking 
their life everyday to keep scum off the streets so decent folk can 
sit at home and read their Bibles in peace not to mention the low 
pay and the abuse they have to take from long-hairs and draft dodgers 
some of those punks look like they haven't bathed in weeks you can't 
tell the boys from the girls they all take drugs and do other things I 
can't even mention call it "Free Love" my god love used to be a 
beautiful thing between a man and a woman and god and their minister 
and their country club now they're even talkin' 'bout stuff like from 
Sodom and Gomorrah makes me sick what are we coming to, to remember 
things like the Constitution.

Cases do get thrown out on procedural matters, but not as a kind of 
reward for "violation of your rights".  Improperly obtained 
confessions, evidence seized in violation of that pesky old Amendment 
against unlawful searches and seizures, unjustified arrests, etc (etc, 
etc! ...) can result in the evidence in question being thrown out, 
which makes it harder to get a conviction or may result in charges 
being withdrawn.  A case may get thrown out entirely if the only 
judtification for the charges themselves was illegaly acquired.  But 
just demonstrating that a violation occurred is not a "Get Out of 
Jail" card.  Many examples exist; I give a few below to illustrate 
where these so-called "technicalities" come from.  *Note that this 
discussion turns entirely on US law; I include it in the presumption 
that our non-US friends are eternally fascinated with us and our legal 
system.*  The most famous rulings are from cases overturned on appeal,
which have set precedents establishing proper procedure.  

_Miranda v. Arizona_, 1966 (I will not give full legal citations - 
those with the expertise will know how to look them up)  involved a 
man identified by the victim of a violent crime, who was interrogated, 
reportedly without coercion and also without information as to his 
Constitutional rights (the defendant had relatively little 
education); he gave a detailed confession and was almost undoubtedly 
guilty, and was convicted.  The Supreme Court ruled that the 
conviction was improper because it rested on a confession obtained 
from a suspect who could not exercise his Constitutional privilege 
against self-incrimination, because he did not know about it.  Police 
now must "read [the suspect] their rights" - "You have the right to 
remain silent ... anything you say will be repeated on television by 
Jack Webb ..." - the famous "Miranda warning".  Today, any confession 
from a suspect who had not been "Mirandized" (yeah - they use that 
word) will be disallowed in court unless it was either an "excited 
utterance" or a "deathbed confession".  This does not mean that the 
trial cannot proceed, but it means that the court presumes a defendant 
(even a well-educated one who has seen Dragnet) who has not been 
informed of their rights will have been unfairly taken advantage of.

_Brewer v. Williams_, 1976, involved a man who kidnapped and killed a 
child.  He contacted lawyer and was advised not to talk to the police 
without the lawyer present; he also stated that he would not talk 
until he had seen his lawyer.  His lawyer told police that the 
defendant would not talk until he had conferred with his new lawyer in 
the town to which he was being taken for trial; the lawyer was refused 
permission to ride along with the defendant during the trip.  On the 
ride over, one of the police officers gave the defendant "the Christian 
burial speech", saying the child's family was very sad that the child's
body had not been recovered and how nice it would be if someone would
tell them where to find it so they could give it a Christian burial.
The deeply religious defendant took leave of his senses and told them 
where the body was, sealing his own fate in the process.  The Supreme 
Court held that the discussion in the car amounted to manipulation, in 
that the police knew that the defendant was religious and also had a 
history of psychiatric illness, and they deliberately worked on him 
when they had him isolated between his lawyer in the first city and 
the lawyer waiting for him in the second.  His being deprived of 
advice at that time put him at a disadvantage, and the interrogation 
was a violation of his right not to incriminate himself.  The point 
here is that he did not *waive* his right not to talk - talking by 
itself is not evidence that he had made a considered decision to give 
up his right; if he had said "I've thought about it and decided I 
don't need a lawyer and now want to talk to you without one ..." it 
would have been OK, but in the absence of a positive decision to waive 
the rights to counsel or to silence, unadvised confessions are assumed 
to be made in ignorance or under manipulation.

However, a very similar case(_Rhode Island v Innis_) was upheld.  Here 
police officers expressed concern over the possibility that a gun used 
in a murder would be found by a child who might hurt themselves; the 
defendant overheard and told them where to find the gun, after being 
Mirandized three times before the conversation and once afterwards.  
The Court held that this was not an "interrogation" and hence did not 
violate the right to have counsel present; it is apparent that if the 
Justices thought that the conversation was in fact an interrogation 
they would have ruled differently.  The difference between _Brewer_ 
and _Innis_ seems to be that in the former the speech was directed 

	
at* the defendant and included a barely-disguised plea for him to 


confess, while in the latter it seemed to be just a genuine 
conversation not directed at the defendant.

_Katz v United States_, 1967, overturned earlier rulings that 
wiretapping was not an illegal search and seizure.  The case here 
concerned a defendant suspected of using a pay phone to facilitate 
illegal business (either drugs or gambling, I forget which).  The 
police wiretapped the public phone in question and listened in to the 
conversations of everyone who used it, then taped ones by the 
defendant.  The Supreme Court held that there is a "reasonable 
expectation of privacy" in certain public places, and thus 
intrusion into these places violates the protection against unlawful 
searches.  The case established two things: that wiretapping is a 
"search" under the meaning of the Constitution, and that tapping 
public phones is just as questionable as tapping private ones.  
(Previous rulings held that telephone conversations were not part of 
one's house or property and thus were not protected by the 
Constitution.)  In current cases, wiretappings must be undertaken only 
on a warrant signed by a judge - a "search warrant" just like any 
other.

_North v [somebody]_ - Oliver North's conviction for misleading 
Congress and obstructing justice was overturned on the grounds that 
the prosecutors were aided in their search for evidence by testimony 
under oath from North himself during his appearance before 
Congressional investigating committees.  The spineless committees 
agreed to "privilege" North's testimony, which meant that it could not 
be used against him in court; his lawyers then argued that the 
evidence that was used against him had been contaminated by evidence 
from his testimony.  This illustrates an unusual evidentiary exclusion 
which seems (to my untutored eye) to have arisen recently.  Now that 
we have investigating committees of various kinds, and the innovation 
of "privileged testimony", we have that many more opportunities to let 
people off the hook for what they have not only confessed under duress 
but *testified to under oath with their own lawyers present*.

All the above cases are landmarks which resulted in overturned 
convictions and the establishment of new procedural protections.  What 
they have also done, of course, is get a lot of other people off since 
the respective cases, on the grounds that the procedures established 
in these precedents had been violated.  Again, violation is not 
automatic acquittal, but it may serve to get some evidence thrown out 
or to lead an appellate judge to agree that the conviction was grossly 
unfair (which gets the defendant off because they cannot be re-tried 
under the double jeopardy provision).  The legal doctrine which 
prevails here is "fruit of the poison tree" - a quaint lawyerly saying 
which means that anything obtained from a tainted source is also 
tainted and must be avoided.  This has led to the "exclusionary rule", 
an informal rule that any evidence which was obtained in violation of 
the Constitution or even local police procedural rules (sometimes) 
must be kept out of the trial.  The various complaints you hear about 
criminals being released on "technicalities" are usually 
manifestations of the exclusionary rule, but as you can see that rule 
results from a general principle of law which makes a certain amount 
of sense in its own right, and from various cases which have hinged on 
fundamental Constitutional principles.  (Occasionally, someone does 
get off on a true technicality, like the spelling of a name on the 
docket or the date of filing of charges, but these are just rare 
screwups.)

[Most above cases from _Readings in the Philosophy of Law_, Arthur and 
Shaw, Prentice-Hall, 1984]

ObTrueLegalRarity: A jury voted for "Guilty" but the foreperson signed 
the ballot on the "Not Guilty" line.  Defendant acquitted!

Kevin "abuse, maybe, but incrimination, never - thank god for the 5th 
Amendment" T. Keith