1. Ryan Elder
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    Ryan Elder Contributing Member

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    Question about 5th amendment rights, for my story.

    Discussion in 'Research' started by Ryan Elder, Aug 31, 2015.

    I did some legal research but I got mixed opinions on this one. Let's say the police came to respond to a call about a robbery for example. They manage to arrest one of the perps, but the rest get away. Now the perp has the right to remain silent, but does he have the right not to rat out his perps? If they only have him and not the others, could they charge him for obstruction of justice or something like that? Especially if they want the perps bad, because the perps committed other crimes after he was arrested.

    They cannot charge him as an accessory, because he surrendered before the others committed their crimes, therefore he couldn't have been a part of them legally, right?

    But because of that, would he be charged with obstruction for not ratting out his co-conspirators? Some are telling me that the 5th amendment only counts for incriminating yourself directly, others say it counts for keeping quiet about the co-conspirators that got away as well.

    Does anybody know which it is? Thanks for the input :)
     
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  2. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    I... don't know. Sorry. I guess bad on me for replying not knowing. I am replying for a different reason. Being we talked about your story a lot. I know you are working hard and I am not going to fault you for asking stuff like this. It is good to do research. :)


    I just want to say don't worry too much about these details. I don't think anyone is going to say. "NO! THIS LEGAL ASPECT OF THE MOVIE WAS SHOWN DIFFERENTLY THAN REAL LIFE I HATE THIS MOVIE NOW!" Again. I am not faulting you ffor asking or doing research. I just think you get a bit stressed out. So I think it is good to relax some times. Just friendly advice. I hope it helps. :)
     
  3. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    My following response is based solely on tv shows and movies that I've watched. I'm no expert.

    Yes, he has the right to remain silent and the right to not rat out the other perps, but that won't save him from criminal charges. Cops can't force you to speak. If the guy doesn't want to incriminate himself, he'll still get arrested and charged with a crime. If he doesn't rat out his friends, he'll still get arrested and charged with a crime. Pleading the fifth isn't immunity. And from my understanding, it's only really used in court on the stand.

    They could charge him with obstruction, but more than likely, they'd threaten him with a stronger charge if he doesn't cooperate. If he agrees to give the cops information, they may offer him a plea deal with a softer punishment.

    They can still charge him, even though he surrender. He committed a crime. Surrendering doesn't change that. EDIT: In the beginning, you said the cops responded to a robbery and arrested him. But then you said he was arrested before the crime happened? They wouldn't arrest him without probable cause, so make sure you clear that up. But if the guy that was arrested had a hand in the crime, whether he helped plan it or was to be the get away driver, he would still be considered an accessory.

    Pleading the fifth only works for yourself. Not others.
     
    Last edited: Sep 1, 2015
  4. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    I disagree entirely. People will get mad if a legal movie/show/novel doesn't fit with the laws of the real world. In a fantasy, it's one thing. The writer can make up their own rules.

    But if you're writing a crime drama, accuracy is key. You really should buy some law books and do further research from the perspective of professionals.
     
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  5. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    But Law and Order as example. Shows the legal insanity defense like almost every other episode. While in real life such a defense is used like less than 01% of the time and of those times it has 0.001% of success rate(real facts or at least they were real years ago. lol) A lot different than Law and Order that might lead you to believe your odds are more like 50% success rate. No one I know ever goes "how dare you!"

    Your own post before this also said you are basing your post on TV as in for all you know TV was wrong. In either case right or wrong. It didn't bother you.

    Yes if he gets a major fact wrong (Like a convicted murderer getting only probation for murder) than yeah that would annoy people but if the police charge him with obstruction is a fairly minor point. He could just not have the cops verbally say all the charges and avoid the issue entirely but if he said obstruction when it wouldn't be so in real life or the other way around isn't going to ruin the movie being my point. :D
     
  6. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. It seems that people are 50/50 on whether or not it bothers them. Some want a story with a strong theme, where as others are much more about getting the facts right. But this is just from people I have talked to.

    I have asked some law experts though, and a couple of them said that most fictional stories wouldn't work in the real legal world, so the author has no choice but to make things up, if they expect to make it entertaining, so they could not help me therefore, they said.

    It is a crime drama, so I want it to be taken seriously. Basically in my script, the defendant gets off on some technicalities, which I have researched and confirmed are real, but some people tell me, he would still be in trouble for not ratting out his other perps, since his other perps have committed other crimes after the fact, as a result. Even though he gets off for the crime, they are still able to prove that he KNOWS the others, so would he get in trouble for not ratting them out, because even though he got off, he still knows them and is not willing to help the police out, after he is declared innocent?
     
  7. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    I forget who said it but to sum it up.

    "Never let the truth get in the way of a good story" -- some person(A like to anyone on the forum who remembers who said this!)
     
  8. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    But succeeding in an insanity plea vs. interpreting the fifth amendment wrong are two very different things. I understand crime dramas need to have drama, even if it's a little improbable, like the insanity plea. But if legal terms are wrong or misused in a crime drama, like messing up the fifth amendment, it will most definitely bite the writer in the ass.

    "Unlikely" does not mean wrong. But wrong is just wrong. So as long as he has his terms and laws correct, he can be as improbable as he wants, and I don't think people will bat an eye. But if he describes the fifth amendment as the right to bear arms, people will throw the story in the trash.

    Technicalities are a good excuse. Happens often, so no issue there.

    But I honestly can't answer your other question. Part of me thinks, yes, the cops can charge him with obstruction for not giving up their names. Another part of me thinks the cops could simply subpoena him and force him to give up their names. Another part of me thinks they'd just sweat him out, make him think he'll be in a lot of trouble for not helping (even after being declared innocent) until he cracks.

    But I can't think of any reason why they'd just leave him alone. He's an important witness that could help catch criminals. So.. I dunno. :meh:
     
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  9. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Well the villain is the type who is intimidated to the cops attempting to sweat it out of him. The police are only allowed to hold him for 24 hours without charge, so they would have to charge him with something in 24 hours. But could they if he didn't talk?
     
  10. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    If he describes crimes that he committed with other people, then he is essentially confessing to crimes--self-incriminatino. Even though he got off on the specific crime that he was prosecuted for, I doubt that he is now immune from prosecution for EVERY crime that he ever committed.
     
  11. Lea`Brooks
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    Lea`Brooks Contributing Member Contributor

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    They could absolutely charge with him obstruction of justice. If he still didn't talk, they could subpoena him to testify in court and give the names.
     
  12. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Is their anyway I can make it so for my plot, so the police cannot do anything? Like maybe his lawyer could argue that he does not have to give their names because it would count as self incrimination because if they are arrested, the information they give will lead back to him, so it's still self incrimination?

    One person I asked said that obstruction of justice requires an act to be charged with. Just because you will not talk, is not the same, and you have to commit an act. Is that true? It's just everyone I ask has something different to say, so I am really not sure how to write it.
     
  13. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    OK, I'm going to object the way I often object: This arrest and trial and acquittal thing is turning out to be extremely complicated and difficult. Do you really need it? Why do you need it? If I could boss you around I would suggest that you (1) specify the high-level plot goals that the trial and acquittal serve and (2) figure out five other ways that you could achieve the same high-level plot goals. As far as I can tell, the high-level goals are to make your MC feel helpless in his effort to have revenge, so that he goes out on his own to get revenge. I think that there are other ways to get to the same emotional place.
     
  14. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Well in order for that revenge to take place, I feel that the villain has to get away with it so to speak. Getting off in court is a way to loose hope. Plus if the villain is not arrested at all, the MC will not know who to go after, since the villain would have gotten away with it completely, and no one will know who did it.

    As far as the villain talking about knowing the others, he doesn't do that. All the cops know is that he knows them and that after he was arrested, they went out to commit other crimes afterwards. So he is not a part of those crimes since he was in custody at the time. He is not incriminating himself for those crimes, all they know is that he knows them.

    I am also trying to come up with a plot to carry the script to feature length besides the revenge only. The revenge in itself is not enough for a whole feature length story. I want more plot happening than just that one element, otherwise it will just be repetitive because all you are seeing is a revenge plan that is too drawn out I feel.
     
  15. Lea`Brooks
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    How do they know he knows them?
     
  16. Ryan Elder
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    Ryan Elder Contributing Member

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    The two arresting officers say they saw him with the others, and there would be other physical evidence at the crime. For example they used getaway cars, so their would be tiretracks, for one thing. Then later the car are destroyed to avoid being found for investigation. So the cops are going to know he knew them since after he was arrested, his friends got away in cars after and destroyed them later.
     
    Last edited: Sep 1, 2015
  17. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Why? The villain isn't going to be arrested if there isn't enough evidence. But your MC can still know it's him, in some way. You don't need the whole elaborate enough-evidence-to-go-to-trial-but-not-enough-to-convict complexity.

    And I thought you wanted a small, cheap cast. A long elaborate prosecution and trial sequence sounds like a lot of actors.
     
  18. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Destroyed entire cars?! Isn't a destroyed car (what did they do, blow it up?) going to be a lot more obvious to investigators than just one of thousands of cars parked in a city? Have they never heard of just changing license plates?
     
  19. Ryan Elder
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    Ryan Elder Contributing Member

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    It doesn't necessarily have to go to trial. I thought maybe the defendant could just get off in the deposition or something. But I think we are clouding the issue here. I need to figure out what the law exactly is, before I decide on what changes need to be made, and so far I am getting different opinions on what constitutes the right to remain silent.

    The reason why I wrote it so that they destroy the cars, is because after the cop arrests the one guy, and the others get away, he calls for back up, and the police set up a perimeter. The other crooks know that their two cars will be looked for as they cannot get out of the perimeter, and the cops will be looking for cars that fit the description given by the arresting officer, who is the MC.

    So they hide the cars out of site and torch them in order to then escape the perimeter on foot.
     
  20. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Depending on the facts, he could still be subject to charges under conspiracy, in which case his Fifth Amendment rights protect him from incriminating himself. If there is no conspiracy or the prosecutor gives him immunity he's got a problem. If the prosecutor is more interested in the others, then she may well grant immunity to your villain.
     
  21. ChickenFreak
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    What are they accomplishing by torching the cars?
     
  22. Ryan Elder
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    Ryan Elder Contributing Member

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    QUOTE="ChickenFreak, post: 1371102, member: 16328"]What are they accomplishing by torching the cars?[/QUOTE]

    Getting rid of possible DNA evidence, kind of like how the villain torch their cars in movies like The Town or Point Break. But I confess I am influenced by other movies sometimes.

    Okay thanks. Would subpoena him to testify against the others, if the others haven't been charged yet though? Do subpoena's work if it's just for a deposition and no trial is set, because I read that in a deposition, the witness is free not to answer any questions they do not want to, until the trial. Is that true?
     
  23. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    In the depositions I've been involved in the deponent has to answer, even after objections, unless it is a matter of privilege.
     
  24. Ryan Elder
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    Okay thanks, this helps. Are their any circumstances, in which case a deponent is not legally required to give up people he knows, just because they committed crimes afterwards?
     
  25. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If they know he knows, I think he'd have a problem unless he has a Fifth Amendment defense. I guess if he's married to one of them that might protect him :)
     

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