1. Ryan Elder
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    Ryan Elder Contributing Member

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    Does anyone know about this evidence law and how it works?

    Discussion in 'Research' started by Ryan Elder, Mar 13, 2016.

    I tried asking some cops and lawyers about this law, for researching my story, but they are in disagreement over it.

    Basically in my story, the main character, a cop wants to use evidence against the villains, which is a recording of a conversation. But since the MC did not have a warrant to get the recording, it is normally not admissible in court.

    So I thought that the MC could plant the recording at a crime scene, where it will be found by other officers. I was told by a couple of cops that it can be used if it's found at a crime scene, cause at a crime scene any evidence found can be used in court.

    But others told me that this is not true, and in order to use a recording, the source of the recording has to be known, or it cannot be admitted.

    Does anyone know the truth on this when it comes to U.S. law?
     
  2. BayView
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    BayView Contributing Member Contributor

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    Dude, if you're getting conflicting advice from cops and lawyers, why would you trust the opinions of a bunch of non-legal clowns on the internet?
     
  3. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    Agreed. If you want to be legally accurate, you need to stop asking us. We aren't cops or lawyers. We won't know the law any better than they will.
     
  4. Ryan Elder
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    Ryan Elder Contributing Member

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    That's true, I just keep getting conflicting results, and not sure what to pick.
     
  5. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    Use the majority vote. If you ask 10 people and 6 of them say it's okay, then it's okay. If 6 says it's not okay, it's not okay. If it's split half and half, go with what you want. As long as you aren't going completely against the law and your idea is believable, then don't worry about it too much. If you keep overthinking every scene, law, and detail, you're never going to finish this screenplay.
     
  6. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. So far it is half and half. When it comes to presenting the case to the court though, what kind of evidence would the jury most court most likely decide on as to who is guilty... If for example, the physical evidence at the crime scene such as DNA, prints, and a murder weapon, point to suspect A as the culrpit, but an audio recording between two people says that it was the person the recording, suspect B, who would the court most likely believe to be guilty? A voice recorded confession saying I am guilty from an unknown source, or the physical evidence that is already there, implicating someone else? If they heard that the voice recording was of someone else incriminating himself in the murder, would they assume that the prints, dna, and murder weapon, that can all be linked to someone else, were most likely planted by the suspect in the recording then, since he admits he's guilty?
     
  7. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    First, no prosecutor would take both cases to court simultaneously. It's case suicide to present two different people as the culprit for the same crime. So they'd have to figure out which person actually committed the crime BEFORE they go to court.

    Second, if the voice recording is all they have against Suspect B, that won't be enough to take to court. They need to find Suspect B and either get him to confess in person or find evidence linking him to the crime. If the recording is all they have and can't find any more evidence after investigating, the case against Suspect B would likely be dropped and Suspect A would be indicted.
     
  8. Ryan Elder
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    Ryan Elder Contributing Member

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    Oh yes, I didn't mean they would take both to court at the same time, I meant which suspect would they pick?

    How is the voice recording not enough though? I am use to a recording being enough in other pieces of fiction. Like the TV show 24 for example uses recordings a lot and that is enough to end the show on, assuming that the person will be tried based on that.

    But if it's not enough then I will need more to indict Suspect B, which is what I want. The problem is, is I cannot think of any evidence, that can be used against suspect B. He's not stupid to keep any evidence, and would get rid of it all naturally, so I cannot think of a reason to get him. Other characters in the story such as suspect A, can trick the villain into incriminating himself on tape or on video, in order to set a trap, and then have that evidence be found, but there is no logical reason as to why suspect B, would keep evidence and not get rid of it.

    How should I write it then, in order to bring suspect B down, if tricking him into incriminating himself is not enough? What other types of evidence would be needed?
     
  9. GingerCoffee
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    GingerCoffee Web Surfer Girl Contributor

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    Recorded conversations with permission of both parties should be admissible in court. Laws about making recordings with only one party's knowledge differ by state. Recording two people without either's knowledge would depend on state law and on the location with a public location being interpreted as having no expectation of privacy.

    Then you'd need the person who made the recording to testify as to its validity.

    Think about all the phone videos that are admitted in courtrooms all the time. They sometimes include sound. And there are video cameras all over the place where they are used in courts of law. They don't often have sound but I can't imagine there is one law for audio recording and one for video.

    It usually comes down to whether someone's privacy was violated not necessarily the recording per se. And someone has to testify and have knowledge of who a voice recording is of.
     
    Last edited: Mar 13, 2016
  10. doggiedude
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    If I was the defendants lawyer (I'm not even my dog's lawyer) I would be arguing up and down about where such a recording came from. Did the victim record it? Did an outside person record it? Is it even my client on that tape? I doubt that a recording would be enough to convict anyone on it's own.
     
  11. Lea`Brooks
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    Which suspect would who pick?

    A recording isn't enough when they have physical evidence against another suspect. They'd likely need proof that the man on the recording planted evidence. Because if they take that to trial, either one, without having solid evidence, the case is going to be dropped. Period. Here are the two scenarios without further investigation and proof:

    1) They take Suspect A (the one with physical evidence against him) to court. Well, since all evidence the police recover is available to both parties, the defense could and likely would present the recording for the jury, thus pinning the crime on someone else.

    2) They take Suspect B (the recording) to court. Again, the defense would have information on the case, so they would know all the evidence points to someone else. They could and likely would present the evidence to the jury, pinning the crime on someone else.

    And since reasonable doubt is so important, neither one of those cases are strong enough to submit a guilty verdict. They need proof that the evidence against Suspect A was planted or that Suspect B was coerced into giving his statement. Without either one of those, the cases will both fail in court.

    Also, as doggiedude said, there would need to be more proof about the recording. If it's audio only, it can be argued the recording is anyone. If it's a video recording, it would have to be perfect quality to suspend all doubt that it could be someone else.
     
  12. Ryan Elder
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    Ryan Elder Contributing Member

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    Couldn't the voices on the recording match the voices of suspects though? Could they not do a voice match with today's technology?

    Like for example, if someone's DNA is found at a crime scene, and you have probable cause to believe it was someone particular, you can get a warrant to get a sample of that person's DNA, or so I was told by a lawyer.

    But if there is probable cause to suspect someone, can you get a warrant to get a VOICE sample, the same way?

    Well one of the reasons why I keep failing to end my story, is I cannot bring about a strong enough case against the villain. What should a writer do in that case? The villain was smart enough to get away with his crimes for the first two acts, so now the police need to find something in the third act. Something that can be found quick enough, without the third act becoming three more acts on it's own.

    The villain does not have a reason to leave anything behind motive wise, so what can I do, when I am stuck at coming up with a strong enough case against the villain?
     
  13. GingerCoffee
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    When you introduce evidence in a trial someone has to introduce it. There would need to be testimony as to where the recording came from, when, and the context.

    So I'm unclear why you'd have none of this?

    DNA and similar evidence from crime scenes is collected, sealed and the tech who collected it has to testify this is my seal, I collected this evidence et cetera.

    As a nurse I've drawn blood from suspected drunk drivers the police brought in to the ED. I had to follow a specific procedure, for example not use an alcohol swab to clean the blood draw site. While I never had to go to court to testify, (drunk drivers plea bargain a lot) I always got stuck with the blood draw because my coworkers didn't want to have to go to court to testify how the blood was drawn if it ended up in court.

    So the person who collected the DNA would also testify.

    Again, why do you not have the person who recorded the audio? You still have to establish the recording is indeed evidence. As for identifying the person by voice print, I suspect this may not be settled science like a fingerprint. You'll have to look up some case law probably.

    No one can answer that for you. Maybe people have some suggestions. Read other books in that genre, get an idea that clicks for you. There are a million ways criminals screw up, even very clever ones.
     
  14. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. The suspect B character recorded the audio. I originally wrote it so that he brings into court. But I was told that this is unrealistic, cause a person cannot bring a conversation into court, that he was not a part of. It is inadmissible to record a conversation that is spoken between two other parties that the recorder is not a part of. So since it is indamissible, suspect B has to think of another way to get it to court.

    I was told by someone that suspect B should just leave it at a crime scene for the police to find. That way, he doesn't have to bring it in, and it is found upon discovery and it legally be used therefore. But I got conflicting opinions on this, cause some say that evidence of a recording can be used if it is discovered at a crime scene, where as others said it cannot be without knowing the source.

    Either way, since suspect B recorded a conversation he was not a part of, it is inadmissible to use, if he brings it in himself, so how can he get any type of evidence, that would be legally admissible, since he cannot get warrants?
     
  15. GingerCoffee
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    GingerCoffee Web Surfer Girl Contributor

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    Not sure what you are going by here.

    Was the recording made in a public place or was it in a private place?

    What state (or country) is this in?
     
  16. Ryan Elder
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    Ryan Elder Contributing Member

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    I am setting it in the U.S. or Canada but haven't decided which one yet. But I read that the law is the same for both countries in most cases, that you cannot record a conversation that you are not a part of, and expected to be admitted as evidence. It would be in a private place, cause the villains are not going to talk about a murder they committed in public.
     
  17. GingerCoffee
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    Your problem is solved then, if you have them talk about it in public, such as in a restaurant where they don't think anyone is listening but the courts determine it to be a public place with no expectation of privacy. Have the guy making the recording be at the next table over with a sensitive microphone.
     
  18. Ryan Elder
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    But I don't think they would talk about such a thing like a murder in a public place.

    I was also told that the law stupilates that no recording of a conversation one is not a part of can be used at all. Even if it's a public place, I still read it was illegal, cause the people who are having the conversation, are having it in private, so it still counts as private, even if it's a public place, or so I was told.
     
    Last edited: Mar 14, 2016
  19. Shbooblie
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    Just my two pence and feel free to ignore it if it's no help, but one of my lecturers said that in the USA any evidence obtained illegally is inadmissible in court, he jokingly said it was because of the things police officers might do to catch people if 'anything goes'. (I'm in the UK so not entirely sure of US law, I only know that over here we can admit evidence of this kind - at least according to my lecturer). Over here I guess a recording of an unknown person may be admitted under a hearsay exception but it depends on the other circumstances.
     
  20. Samurai Jack
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    United States federal law:

    1. The recording device must have been capable of taking the conversation offered in evidence.
    2. The operator of the device must be competent to operate the device.
    3. The recording must be authentic and correct.
    4. Changes, additions, or deletions have not been made in the recording.
    5. The recording must have been preserved in a manner that is shown to the court.
    6. The speakers must be identified.
    7. The conversation elicited was made voluntarily and in good faith without any kind of inducement.

    I imagine a judge would be lenient on 1 and 2. You have no problems with 3, 4, or 6. You are out of luck with 5 and 7.
     
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  21. Samurai Jack
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    That is wrong. As a rule. any conversation had in public must be made with the assumption you are, or can be, recorded. And any recording you can make in public without trespassing or harassment can be done without consent of the people you are recording, even as far as recording someone on their own property if you can see them from a public place.

    With any rule there are many exceptions, but that's a perfectly acceptable place to start.
     
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  22. Ryan Elder
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    Oh okay, when I researched it, the cops or lawyers did not say anything about it being acceptable as long as it was in a public place. As for 5 and 7, I find the law to be kind of vague in their explanations.

    When you say the recording must have been preserved in a manner shown to the court, what does preserved in a manner shown to the court mean exactly? what type or preservation are they talking about?

    As for 7 what would count as an inducement? I find the explanations to be kind of vague.

    In my story though, the recording still has to be found in plain view of a crime scene for the MC to avoid lying though, as to how he got it. He can bring the recording himself and lie as to how he got it, but then any lie he says can be used against him.

    So wouldn't it just be better for him to plant the recording in plain view of the crime scene and the source is unknown? I was told by a cop that it might be admissible in court, if the cops had probable cause to believe that their was something on it, to link it as incriminating evidence to the suspect.

    Like for example, if the recording was a CD that has a label on that said "Masterson's murder confession", then maybe the police can use it, and link the voice on it to Masterson, because now they have probable cause, cause his name is actually on it?

    I am still waiting for the cop I asked to confirm that one, and I will try asking some more people.
     
    Last edited: Mar 14, 2016
  23. doggiedude
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    I would think that any police officer willing to plant evidence in order to get it admitted in court would also just be willing to lie about where it came from.
     
  24. Ryan Elder
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    But even if the cop did lie about where it came from, it would still be hearsay, cause if said he got it from say, one of the dead suspects before who gave it to him before he was killed, they court would not be able to confirm it with any of the dead characters from before, because they are dead.

    So even if the cop lied successfully, wouldn't it still be hearsay, and therefore be no good?

    But the villains do have incriminating videos in their computer as well. In my story, the villains are kidnappers and they use the internet to email ransom videos to the family of the loved one that is kidnapped. Kind of like in the move Ransom (1996), where the kidnappers would send videos to the parents, showing the kidnapped victim as proof, when making their demands. And course like in that movie, the videos are made to untraceable.

    Now let's say later the cops are looking for the kidnappers, have a suspect, and want to esearch his computer. Let's say they don't have a warrant to search the computer but they set up a sting operation to catch the kidnapper suspect. The sting involves the kidnapper using his computer. The police monitor him and sees that he has files on his computer of the kidnapped victim.

    So they arrest him and have a look at the files on his computer which are videos of the kidnap victim.

    The crooks are also not on the videos since the goal is to just show the victim for ransom demand purposes.

    But can this be used as evidence, or do the kidnap videos have to be authenticated by the source who made them, like an audio recording?

    Obviously the kidnappers are not going to authenticate their own video of a kidnap victim, so would being in possession of the videos displaying a kidnapped victim being held hostage, hold up in court, or do the videos need authentication from a source as well, even if the police are specifically looking for the videos on the computer?
     
    Last edited: Mar 15, 2016

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