1. Ryan Elder
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    Ryan Elder Contributing Member

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    Question about how the law works for my story.

    Discussion in 'Plot Development' started by Ryan Elder, Jul 10, 2015.

    In my script, there is a complicated scenario, where I would need an opinion from people who are more familiar with the law then I am. Here goes:

    So in my script a cop wants revenge on the villain because the villain got away with his crimes, and damaged the cop. Pretty standard.

    The cop does not know who the villain is, though, and it's a mystery killer. He knows someone who could know who he is, but they are not in contact anymore, and there is no evidence that he can find to link them. Since he is not allowed to go into that person's personal information, the cop blackmails a parolee, who was good at computer hacking in his past crime life. He forces the parolee to hack into the man's information, which the cops did have probable cause for a warrant to get into it of course.

    From here, the cop discovers who the villain could very well be. He then starts tailing the villain on his own time. The villain finds out that he has been hacked and someone is onto him.

    He has reason to believe that it's someone else though, and he goes and murders that man instead. The cop who was following the villain while this happens, fails to stop the murder in time, but witnesses it while following him.

    Now I want the villain to be able to get away with it again and for the hero to get into trouble. I was wondering if it count's as 'fruit of the poisonous tree' as the saying goes?

    Basically the hero is a witness to the murder, but it was his illegal extortion and computer hacking felonies, that got him to that point. So because of that, would it then count as fruit of the poisonous tree, and his testimony would be thrown out?

    Or does that not apply in this scenario?

    Thanks for advice :)
     
  2. BayView
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    BayView Contributing Member Contributor

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    Is your story set in the US?
     
  3. Ryan Elder
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    Ryan Elder Contributing Member

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    Sorry. I am not sure where to set it. I guess any city, U.S.A., cause I am not sure right now, but we will say the U.S. for now.
     
  4. SwampDog
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    SwampDog Contributing Member

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    I can't comment on the US, but as far as the UK goes, murder is murder, wherever it is committed in the world.

    Your 'fruit of the poisonous tree' (by that name) is peculiar to the US, and denies the admissibility of evidence obtained under certain circumstances (and in the UK e.g. as agent provocateur). From what you're saying, if your hero witnessed a murder - a chain of cause and effect instigated by him - that shouldn't bar any direct testimony he may have. The cop's problem is all the associated offences he's committed. The villain will have no excuse whatever for his crimes.
     
  5. BayView
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    BayView Contributing Member Contributor

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    I'm almost wondering about entrapment - the guy committed the murder because of the actions of a law enforcement officer - but I don't know US law well enough to have a good opinion on that.

    And, sorry, OP, I don't know US law well enough to know about the fruit of the poisoned tree, either. I know there are circumstances when an off-duty cop is deemed to not be an agent of law enforcement, meaning the doctrine doesn't apply, but I'm not sure how this determination is made.
     
  6. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I asked one person who says they are an expert and says that the doctrine still applies when off duty cause they are still a representative of the law. So it may not work for my story if that's the case.
     
  7. BayView
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    BayView Contributing Member Contributor

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    An expert, like, someone practicing criminal law in the US? Okay, trust him or her. But it's just an internet expert, you may want to research yourself.

    I found: Even an off-duty police officer "may" not be acting as a law enforcement officer in conducting a search, when he acts in his capacity as a private citizen, and through mere curiosity. (People v. Wachter (1976) 58 Cal.App.3rd 311, 920-923; see also People v. Peterson (1972) 23 Cal.App.3rd 883, 893; off-duty police trainee acting out of concern for his own safety.) http://www.legalupdateonline.com/4th/290

    I don't think either of those exceptions meet your scenario, but possibly you could have your cop take a leave of absence or find some other workaround? I don't think it's an absolute no-go just because he's a cop.

    ETA: See also http://www.policemag.com/channel/patrol/articles/2013/03/unlawful-reaction-to-unlawful-action.aspx which has examples of times when the poisonous fruit doctrine was applied to the original crime but not to subsequent crimes committed by the accused. So your guy couldn't use anything he found as evidence of the villain's original crimes, but the doctrine doesn't seem to apply to the subsequent crimes.

    Again, I'm far from an expert on US law, but this makes it seem like you'd be okay with your scenario. Disregard my points if your other 'expert' is actually an expert.
     
  8. BrianIff
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    BrianIff I'm so piano, a bad punctuator. Contributor

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    Fast forward to 34:30, watch for 3 min. for best poisonous fruit tree quote. Good movie, too.

     
  9. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I already saw fracture :). Well for my story perhaps I should take a different approach. Mainly the MC wants revenge on the villains. I want the cops to go after him because they find out that he is intending to kill the gang of crooks, so they want to stop him. However, I cannot find a way for it to make sense. Cause the cops will not go after someone who has not committed a crime yet, and they would have to wait in a realistic world. I tried to think of ways he could get into trouble for something before hand, but none of that is doing much good, since he hasn't really done much of anything yet.

    Is their a way I can get the police after him beforehand, since they have nothing to charge him with, or something I could apply?
     
  10. Ryan Elder
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    Ryan Elder Contributing Member

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    Well I asked two real cops to help me with it as well, and they say that the fruit of the poisonous tree law does count if a murder happens a few days later, based on if the cop said something to the villain which got him to commit that murder. I am not really confused and do not know if it applies or not.
     
  11. Tesoro
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    Tesoro Contributing Member Contributor

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    Just a reflection I've made, after seeing all your similar questions regarding this ms lately:
    it looks a little like you've started in the wrong end here, by constructing a plot which forces the mc character to act in a way that would not be very likely. Like, what if you start with the character instead, give him a goal and a motive and let him act in a way that comes natural to him, instead of trying to squeeze him into some kind of cookie cutter?
     
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  12. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Hi Ryan,

    I want to make sure my assumptions are correct:

    1. MC (cop) want's revenge against an unknown villain,
    2. MC has suspicion of a perp, so he blackmails a parolee to hack the 'acquaintance' of the suspected villain,
    3. That hack proves useful, so the MC is begins tailing the villain,
    4. Meanwhile, the villain finds out that 'someone' has been snooping, but isn't 100% sure who,
    5. Villain, mistakenly, targets and kills who he thinks is digging into his acquaintances/background,
    6. MC (cop) witnesses this killing...

    This is where I got a bit lost ---

    Did the cop arrest the villain after witnessing the murder? Meaning, did the cop call it in and watch from a distance while enjoying the downfall of his suspected villain (which is what I would do), or did he run up, say, "I saw the whole thing, and you're going down you SOB!"

    Moving forward: I have to assume that somehow the MC (cop) is implicated to have known about (even helped bring about) the mistaken murder during trial or something. Like, the villain claims: "If not for the cop's snooping, I would not have killed this man." Or, "Cop can't bare witness because he has dirty hands, therefore all evidence is inadmissible."

    If that's the setup, then 'fruit of the poisonous tree' does not apply to evidence in the trial (especially if the cop called it in and watched from a distance). Even if the cop made the arrest, collected the evidence, conferred with the District Attorney, and is on the witness stand, the evidence would still stand.

    My reasoning: Working backward -- A) Witnessing a murder isn't a crime. B) Tailing someone isn't necessarily a crime. C) Hacking is criminal, but how would the villain/defense know this? Even if they do, even if they turned the parolee, the evidence collected isn't 'fruit' of said hacking. Now, this isn't to say that the MC (cop) isn't in trouble -- he has a wealth of crap coming his way, most worrisome is a civil suit from the family of the man 'mistakenly' killed (especially if the cop had opportunity to stop it and that's public knowledge), but the villain would still be tried with all the evidence at hand.

    'Fruit of the poisonous tree' is more like this. Cop busts into neighbor's home without a warrant (let's say the homeowner backed into the cop's car). While the cop is in the home he sees a ton of green, he arrests the neighbor, books him and takes the case to the DA -- the neighbor will not (or at least should not) have charges issued because the arrest was unconstitutional and any evidence therefore is 'Fruit of the poisonous tree'.

    -----------------------

    Okay, so you want this as your twist: "Now I want the villain to be able to get away with it again and for the hero to get into trouble..." For this to work, you'll need to obscure the evidence in the murder case while marginalizing the MC (cop) -- essentially, you have to have evidence near zero so that it's the cop's word against the villains word -- then, have the cop discredited right before or during the case.

    To meet the above, you could try something like this scenario:

    Villain mistakenly murders wrong man. Cop see's murder, but doesn't make arrest. He wait's for villain to clear the area, plants some evidence, then calls it in. Evidence planted is a gun or something (depends on what the cop came across during those initial days of tailing). Evidence works, arrest warrant issued for villain, but [wait] what is this: someone heard the shot? -- Some nosey kid with a camera phone and he records the cop planting the evidence... Holy crap, the villain goes free and the cop is in deep shit.
     
    Last edited: Jul 24, 2015
  13. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Something like that. However, I need a reason for the cop to let the villain go. I asked a cop and he said that if a cop stalks someone by blackmailing a computer hacking expert, and then follows that person around based on the hacker's information, then you cannot arrest him for the future murder, cause the evidence as to how the cop arrived there is tainted. Could that be a reason for the cop to let the villain go, or is that not logical enough and he would still make an arrest after seeing the murder happen?
     
  14. AspiringNovelist
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    AspiringNovelist Contributing Member

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    The MC (cop) wants the villain to go down right (your initial statement of revenge)? If that's the case, then why would the cop let the villain go when he has him dead-to-rites? Unless I'm misunderstanding your initial premise...
     
  15. Ryan Elder
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    Ryan Elder Contributing Member

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    Well that's just it, I need a reason to let him go though so the story can continue.
     
  16. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Yes, I see that as your desired twist. Your requirements are 1) That the killer get away and 2) that the MC (cop) get's in trouble. My scenario is the only thing I can think of that fulfils those requirements while maintaining a connection between the killer and cop.

    "Villain mistakenly murders wrong man. Cop see's murder, but doesn't make arrest. He wait's for villain to clear the area, plants some evidence, then calls it in. Evidence planted is a gun or something (depends on what the cop came across during those initial days of tailing). Evidence works, arrest warrant issued for villain, but [wait] what is this: someone heard the shot? -- Some nosey kid with a camera phone and he records the cop planting the evidence... Holy crap, the villain goes free and the cop is in deep shit."
     
  17. Ryan Elder
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    Ryan Elder Contributing Member

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    Something like that could work. The thing that doesn't work for me necessarily though, is how would the cop think to have evidence to plant beforehand? It's not like he is going to think to himself "I better get evidence I can plant just in case the villain commits murder and I fail to stop it". What if after the villain kills the wrong man, he just gets the drop on the villain at gunpoint and forces him to plant his own DNA and fingerprints on the body?

    Then he is about to arrest the villain but something happens and the villain is able to get away? Does that work better or more logically?

    Or I could write it so that the villain just gets away, and the MC does not plant anything, but still gets in trouble cause he inadvertently caused an innocent person to die? Is that better, or is he more assured to get into trouble by being caught framing the villain?
     
  18. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Actually, my internal thought is: While the MC (cop) was trailing this guy (let's say for a week) -- the cop has revenge on his mind -- so, he enters the guy's house when he's out. Finds the gun (or any item that has direct ties to the villain), but let's say he finds a gun. MC (cop) takes gun -- maybe to, at some point in the future, kill the villain with his own gun. But as luck would have it, the villain puts himself in a situation that the cop can take advantage of.

    So the outline is:

    1. MC (cop) want's revenge against an unknown villain,
    2. MC has suspicion of a perp, so he blackmails a parolee to hack the 'acquaintance' of the suspected villain,
    3. That hack proves useful, so the MC is begins tailing the villain,
    4. MC tails villain for a week, at some point MC enters villain's home and steals his weapon,
    5. Meanwhile, the villain finds out that 'someone' has been snooping, but isn't 100% sure who,
    6. Villain, mistakenly, targets and kills who he thinks is digging into his acquaintances/background,
    7. MC (cop) witnesses this killing...But doesn't make arrest,
    8. MC (cop) instead, waits for villain to clear crime scene and plant's the stolen weapon,
    9. MC (cop) calls in the murder,
    10. Detectives quickly tie villain to murder scene, arrest warrant issued,
    11. Detectives go to District Attorney with evidence, charges filed, case date is set,
    12. Meanwhile, detectives gathering additional witness statements run into a young boy, he has video of the MC (cop) planting the weapon,
    13. Case against villain is immediately withdrawn,
    14. MC (cop) is in some serious trouble with Internal Affairs....

    If you don't write it -- I will. :) Just kidding.
     
  19. Ryan Elder
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    Ryan Elder Contributing Member

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    lol at the last part. Thanks. However, I was told that this was a plot hole, and that the MC would not let the villain go. The MC would capture the villain, and then plant the evidence, and then bring the villain in, saying he saw it. But for my story to work, I kind of want the villain to get away, because I do not want the cops to be able to see who it is, just be forced to take the MC's word, in which case they don't believe him. But if they see who it is, then they will believe him, if that makes sense. So I was still told it was a plot hole by some readers. However, since he found the villain by hacking, the arrest will not stick because it is fruit of the poisonous tree, I was told by a cop. So if that's true, then it would probably make sense for him not to say he was there at all?

    Also I want to have it so the cops gets into enough trouble to want to go on the run, and even shoot at other cops to prevent his arrest. Not wanting to kill the other cops, but willing to risk firing shots as cover fire for his escape. In order for the MC to be in this much trouble to go that far, is planting evidence enough, and being partially responsible for the innocent person's death enough, or will I have to go further?
     
  20. AspiringNovelist
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    AspiringNovelist Contributing Member

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    I'm not a lawyer, but I did stay at a Holiday Inn Express once. For 'Fruit of the poisonous tree' to apply, the preceding action that resulted in the supposed 'guilty' evidence has to be unconstitutional as in the example I gave.

    "I kind of want the villain to get away, because I do not want the cops to be able to see who it is, just be forced to take the MC's word, in which case they don't believe him." -- that's a tough one. You need a "reason" for the cop to do this that doesn't swing contrary to every Law and Order episode I've seen. 'Fruit of the poisonous tree' will never work with these constraints because it's a legal term, and legal settings require a plaintiff and defendant -- both of whom will be seen and known by everyone.

    But just out of curiosity -- I sense a conflict in that you 1) don't want the villain known, but 2) want the cops to take the MC's word for it. The MC would undoubtedly state who he thinks the villain is right?

    Or maybe you're saying that you just want the MC as the only witness and that his statement about the killer is so outlandish that his fellow men in uniform don't believe him?

    I'll go with that last one, I think that's what you're getting at and maybe you don't want to spill-the-beans (hell, at this point I'm convinced you're the killer :) )

    So the scenario is this:

    Jamestown, located on the city's downtown waterfront, was once a low-rent, semi-industrial district. It sits northwest of downtown Hampton and in recent decades the neighborhood has been revitalized and transformed into a district of night spots, small specialty shops, swank restaurants, and residential towers, as well as old warehouses, some converted, most not. However some towns never outlive their reputation and Jamestown has a reputation for having more than its share of crime: burglary, theft, beat-downs, and murders. Many murders were drive-bys that didn’t seem to target anyone in particular and the police linked most of the crime in the area to gang activity.

    For our villain, Jamestown was the perfect place to add to the city's murder rate. Crime was escalating in the area and the police chief and mayor had publicly announced plans for an anti-crime program. The public announcement afforded the villain an opportunity many citizens just didn’t consider. They never thought of the downside of such a program. All they heard was the positive ring of anti-crime, but many criminals, especially our villain, knew the other side of it.

    Our villain knew that once a public statement was made by the politically connected mayor, it had to be supported by results. Big, bold, newsworthy, positive results, and as such crimes were dealt with quickly and usually by overworked detectives, some willing to hastily link victims to circumstance to clear the dockets. Our villain could kill (the mistaken man), and in a day or two it would be linked to drugs and forgotten. Followed by an apt quote in the newspaper that another crime has been solved.

    Our MC (COP) snubbed the Lucky Strike under his shoe as he watched the villain dip into an alleyway near an abandoned warehouse. He had been trailing him for days like a bloodhound with a hard on for bad guys. "What the hell is a priest doing in this part of town?" The MC (cop) thought. "This fuck has some serious unresolved issues."

    As our MC (COP) crosses the street and looks up, to his left -- he spots a city camera on a pole. "Damn!"

    Suddenly, the alleyway is full of escaping screams. Our MC (COP) un-holsters his weapon and eases toward the screams. A man rushes from the dark alleyway into the street lights, his throat nearly severed to his spine on one side. "Help me!" He screams as he rushes toward our MC (COP). "Help!" The unknown man falls into the MC (COP) wraps his dying arms around him and they both fall to the ground.

    "Pull it out!" The man screams. "Pull it out."

    Without thinking, our MC(COP) grabs the knife lodged in the mans throat and tosses it to the sidewalk. He applies pressure on the wound while saying over and over, "you're going to be okay."

    Just then, the villain (priest), exits the alleyway and calmly walks away.

    Thirty minutes later the questions came at our MC (COP) like a machine gun. "Why were you here again?" The detective asked our MC (COP).

    "I was in the neighborhood."

    "Know anyone in this neighborhood?"

    "No."

    "Then why were you here?"

    "I don't know."

    "And you say a priest did this?"

    "Yes." Our MC (COP) thought about giving up the name, but he couldn't. "How in the hell would I know the priest's name if I hadn't been following him? Who am I, Ms. Cleo?"

    "You don't believe a thing I say, do you John?" Our MC (COP) asks.

    "Have to admit. It's a bit out there. Whose blood is that on you?"

    "The victims."

    "Why were you here again?"


    The above is a rough draft to set the scene. But to be clear, none of this would allow you to use: 'Fruit of the poisonous tree'. In order to use that, you must be in a legal setting, which may come later in your story. Also, you can fill a lot of plot holes with 'reasoning' and 'reaction' -- that's fiction. The above would never happen, but as you read it, you're like -- Okay, I'll go with it.

    So, the above setting allows your killer to get away AND puts your MC (cop) on the spot. All he can say is who (or more pointedly what) killed the man -- the priest. Our MC (cop) can't divulge more that that. He has to hope his fellow men in blue will take his word -- at this point - "It ain't looking to good..."
     
    Last edited: Jul 25, 2015
  21. J Faceless
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    J Faceless Active Member

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    Fruit of the poisonous tree is for evidence not witness testimony. I've seen a few cop shows do a similar situation where a cop sees something then gets a warrant to search the premise for evidence, but there is nothing there and no evidence that a murder took place making it look clean because the murderer cleaned the scene. But that has been done, a lot in tv.
     
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  22. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Correct, it's about the chain of collection of evidence, right? In order for evidence to be used again a perp, the collection has to be constitutional as in my example:

    'Fruit of the poisonous tree' is more like this. Cop busts into neighbor's home without a warrant (let's say the homeowner backed into the cop's car). While the cop is in the home he sees a ton of green, he arrests the neighbor, books him and takes the case to the DA -- the neighbor will not (or at least should not) have charges issued because the arrest was unconstitutional and any evidence therefore is 'Fruit of the poisonous tree'.
     
  23. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. But I was told by a cop that this counts a fruit of the poisonous three, because the MC committed blackmail and illegal computer hacking to find out who the villain is, then he makes a blackmailing phone call to the villain. This gets the villain in a certain place and time to kill the innocent person. The cop told me that if the MC said he saw this person kill someone, the prosecutor will ask the MC how he came to be following the suspect he says is the killer.

    If the MC tells the prosecutor that he came to following him by blackmailing and computer hacking, that right there is fruit of the poisonous tree. It cannot be used, and if there is no other physical evidence at the scene, the prosecutor would be forced to drop the case. That is was the cop told me when helping me research it. I just asked him if it does not count for witness testimony and he says that in this case it does because the evidence is within the witness testimony. The MC says that he found out who the suspect is by hacking and it's the hacking that is the evidence, and if the MC is talking about using tainted evidence, then the testimony itself is tainted. That's what the cop told me, is he right?

    "I'll go with that last one, I think that's what you're getting at and maybe you don't want to spill-the-beans (hell, at this point I'm convinced you're the killer :) )"

    And yes I was going for the last one, AspiringNovelist :).
     
    Last edited: Jul 25, 2015
  24. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Well, you're going to have to solidify your MC (cop) because you're kind of all over the place with your constraints:

    1. You want the villain to get away unseen, -- you stated this is important for the tale to move forward,
    2. You want the MC(cop) to know who the villain is, but only because he's been trailing him via some illegal activity,
    3. You want to invoke 'Fruit of the poisonous tree', but the villain is unknown to all except the MC (cop) so there is no legal setting for 'Fruit of the poisonous tree' to even come up,
    4. You want the other cops to take the MC(cops) word for who the villain is,
    5. You want the MC(cop)'s claims to be so 'out-there' that not even his buddies in blue believe him.

    It seems to me that you're in love with the legal concept of 'Fruit of the poisonous tree', yet you won't allow your characters to get into a legal setting where that argument would ever come up. It's not a street term. It's not a cop lingo term, it's a legal argument, that would be argued on behalf of a defendant -- but you don't want a defendant, so that argument would never - ever arise.

    I'm not sure how much more I can help. I've given you 2 scenarios that meet 3 out of the 5, but 5 out of the 5 is impossible because they are in conflict.

    Now, if you're going for some schizophrenic type story where the cop and killer are one-in-the-same, then -- again, 'Fruit of the poisonous tree' will not apply. Reason: 'Fruit of the poisonous tree' only applies with respect to evidence procured for an arrest and prosecution. Its concept is that "ALL" the evidence collected has to be constitutional. It's impossible for someone to arrest themselves, so for 'Fruit of the poisonous tree' to ever come up -- someone else would have to arrest your schizophrenic MC(cop). And that arrest would stand, as the other cop isn't "all caught up" in your schizophrenic MC(cop)'s world.

    Bottom line, if you want to delve into the legal complexities of 'Fruit of the poisonous tree', you have to, absolutely must have a legal setting. That means a defendant that is known to all.
     
    Last edited: Jul 25, 2015
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  25. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I wouldn't say I am in love with fruit of the poisonous tree, it just seems to be the way to go, to get the villain off the hook.

    Sorry I should be more specific. What would happen is, is that the cop would tell the prosecutor who the killer he saw is. The prosecutor would then tell him that he is not going to press any charges, because the judge will just rule it fruit of the poisonous tree. So it doesn't go as far as the killer being charged because of that.

    I won't be all over the place once I figure out what the best option is, then I can be more grounded. I want the villain to be free, and the MC to get in trouble, but big trouble that he would want to escape arrest, in order to get revenge on the villain. Basically I want him to be out for revenge but also as a fugitive, evading the police in the process.

    I see three ways this can happen, but correct me if I am wrong.

    1. The MC sees the suspect kill someone and tries to catch him but he gets away. He then admits to what happened but they cannot do anything about it since the evidence and his word, is tainted.

    2. The MC sees the suspect kill someone, but either fails to catch him or he lets him get away, and he keeps quiet cause he knows that the evidence is all tainted and no charges will be pressed anyway. He keeps quiet hoping that the cops can find other evidence at the crime scene instead.

    3. He decides to capture the villain at gunpoint after failing to stop the murder, and force him to plant his own DNA, prints, etc. He will then either let the villain go or bring him in. If he chooses to bring him in, something must happen for the villain to escape. The MC is later found out that he tried to frame him, and gets in trouble that way. But since the MC already tainted the evidence with his hacking and blackmailing, perhaps, planting DNA is not a necessary plot device.

    Which way of these three, do you think is the best to meet the desired end goal? Or do they all have problems?
     

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