1. Ryan Elder
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    Ryan Elder Contributing Member

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    Question for lawyers on if this case would go to trial or not?

    Discussion in 'Research' started by Ryan Elder, May 17, 2016.

    I was told by a lawyer for my story, that the case would go to trial, when it doesn't and it does not come off as believable.

    In my story what happens is, one night a cop on patrol, gets a glimpse of some suspicious activity, he decides to watch, such as two guys search another guy for weapons or a wire, or doing that type of search. The cop decides to follow them very discretely in his unmarked car, not to far, to a secluded location near by. He cannot identify faces from his distance, but he sees they meet up with more men wearing masks and gloves.

    It's a 'blood in', which is a term for when a gang gets a new member they are recruiting to spill the blood of another person in order to see if that person can be relied upon to be a fellow member. In this case the new member has to assault the new kidnap victim.

    As the cop observes, he sees that an innocent kidnapped hostage is about to be likely harmed, so he intervenes, saves the kidnap victim, and manages to arrest one of the suspects, while the others get away in the process.

    Unbeknownst to the investigators though, the hostage, was actually a fellow gang member posing a hostage, as part of the blood in. The member posing as a hostage, agreed to part of a staged assault, where she wouldn't really take much damage, since it was just a test to see if he could do it.

    The reason the gang did this, was in case the new recruit may not have been an undercover cop or something, they did not want to be caught with a real kidnapped hostage, and can create deniability of a crime, should the blood in be a set up.

    So when the cop, arrests one of them, and saves the hostage, the hostage then makes up the story, that she and the arrested suspect are actually friends, and they were playing a role playing.

    They say that they went out drinking the night before, met the others, and then brought them back to her property for a role playing fantasy game. The police ask her who the other's are and why they ran, and she says that since she met them and brought them back after a night of drinking, she didn't get their names, and just brought them back to play. Why they ran, she doesn't know and assumes they must be wanted for something else, she says. She of course does not want to name the others.

    She also reports a complaint towards the cop who rescued her, saying that he threatened her into testifying against her arrested friend, or he will make things bad for her in the future. Even though it's her word against the cops, she still wanted to complain anyway, just to save face to help her look innocent. The prosecutor, thinking that these two suspects could be part of the same gang, still tries to take it to a judge to see if there is anything more they can do, but a judge dismisses it on lack of evidence of a crime actually happening, aside from maybe mischief charges.

    So there is not enough evidence to charge her or the other suspect, with any crimes, since it was just role playing, on her property, and there is no crime, and no victim of a crime. After the other gang members get away and escape, they gas down the car with the phony plate and burn it. The building that the cop also spotted the fake 'blood in' in, was also owned by the woman, so it doesn't lead to any other suspects, other than her and the one guy.

    Now I was told by a lawyer that this case would not be dismissed at a deposition, and it would go to trial, because a jury would not believe the woman. The jury would just think that she is a kidnap victim who is denying everything on the stand, and that it's also suspicious how the defendant never opens his mouth, even to the police beforehand to corroborate her story. He said that the jury would convict the defendant of kidnapping and assault charges, cause they wouldn't believe he is innocent if he did not corroborate her story.

    However, even though she is lying, she aims to get the defendant off, since she is working with him. Now if the defendant were to tell the same lie as her, that would mean that is attorney is advising him to lie, to the police and to the court, if it goes to trial.

    Would a defense attorney tell his client to tell the same lie as the witness who is exonerating him, just so he can appear more innocent to the court, and to a jury later on?

    Would this case go to trial or no? Or am I wrong and a jury would convict on this evidence and maybe I am missing the little things? The lawyer told me that the defendant looks suspicious for not corroborating and that if the cop says he saw a kidnapping, the judge is going to believe him over the alleged victim, cause the cop's word would have the most weight in this case.

    What do you think?
     
    Last edited: May 17, 2016
  2. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    The lawyer can't instruct the defendant to lie. If the lawyer knows the defendant is going to lie he can't even question him on the stand and elicit the lie from him.
     
  3. Ryan Elder
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    Ryan Elder Contributing Member

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    Well that's what I thought. But I was told that the case would go to trial if the defendant chooses to remain silent, cause it would make him look suspicious. But would it? Would the cop's word that he saw a kidnapping, where as the alleged victim said that she is not a victim and no kidnapping happened, have more weight than her word?
     
  4. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    My understanding of the standard for a motion to dismiss in a criminal case is that the judge isn't going to grant it here. They're hard to get if the prosecution wants to move forward.
     
  5. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Why is the judge not going to grant it? I thought that if a judge thought that there wasn't enough evidence, he can override the prosecutor and on that basis.
     
  6. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    In theory. Here are two quotes I found from articles after searching Google:

    Motion to Dismiss
    The American criminal justice system generally does not favor pre-trial motions to dismiss based on lack of evidence. If probable cause to believe a defendant committed a crime exists, the trial is the mechanism through which the process will determine if the evidence is sufficient for conviction. However, certain Constitutional issues can give rise to motions to dismiss.

    And:

    The criminal rules permit a defendant to move to dismiss an indictment for “failure to state an offense,” but as I’ll explain shortly, the courts have gutted this rule and district courts deny these motions as a matter of course. Nor does the criminal law contain any
    mechanism akin to summary judgment. A defendant thus cannot
    meaningfully challenge the government’s legal theory until the close of the government’s case at trial – when the defendant can move to
    dismiss the charges for insufficient evidence by arguing that the gov-
    ernment has proven conduct which is not actually criminal.
     
  7. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Note: I don't practice Criminal Law, so this is just based on my reading of how easy it is to get a dismissal pre-trial if the prosecution wants to move forward.
     
  8. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. So the defense attorney cannot move to dismiss the charges at a deposition, even if there is no victim who will say that she is an actual victim of the charges? Would the judge still go to trial without a confirmed victim of the crime to testify though?

    At the deposition, even if the defense attorney is not allowed to move to dismiss, the alleged victim is still going to be called to the stand and she will say that no kidnapping happened it was all role play.

    Will the judge still think that a jury will see her as a victim still even though she is not saying it all, and will still go to to trial?
     
  9. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    A burning car is far, far more obvious to the police than a simple parked car. And it takes far, far longer to set fire to a car than to park it and walk away from it. I realize that this isn't your actual question in this thread, but this does not make sense.
     
  10. Shadowfax
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    Shadowfax Contributing Member Contributor

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    This all seems to be based on a policeman's belief that a crime was committed, based on him seeing activity of which he is suspicious. None of which is corroborated by the alleged victim, who will only testify that NO crime was committed.

    I can't see that this would be taken to trial on this much evidence (the cop's allegation that a crime was committed, versus the silence of the defendant PLUS the evidence of the alleged victim that she was NOT a victim) and, if it did, I don't see how a jury could convict.

    Incidentally, why would the gang use a gang member as the victim of a blood in? If the new member is any good, they might end up with an existing gang member getting hurt - or the new recruit getting hurt or killed because the existing member defended himself too diligently.
     
  11. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks for the advice.

    They reason why their burn their car is because when the cop sees the car getting away, as he detains the one suspect, he puts out an APB on the car, after calling for more back up, and the villains realize that an APB is likely put out. If they park the car, the police will find it while looking for the description of the car, and the phone plate, wouldn't they?

    Yeah that's what I thought, the lawyer who told me it was unrealistic in not going to trial, maybe just had a lot of confidence that it still would.

    The reason why the gang uses one of their own members, is that when it comes to blood ins, they want to make sure that the new recruit is not an undercover cop, which is the point of blood ins, or so I read. So the gang uses one of their own, cause if the guy is an undercover cop, they don't want to get busted at all, and charged with kidnapping a real victim for a blood in.

    By using a fake victim, who is one of the posing as one, she can lie and get out of their being any crime, should the new recruit turn out to be an undercover cop. It's a risk but the other gang members are careful to see that she doesn't get hurt as it's just a test to see if the new recruit is willing to do it.
     
  12. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I think you may be confusing two separate parts of the process. The prosecutor or her boss (AG, for example) determines whether to file charges. If there is no evidence, and no cooperative witnesses, my question would be whether the prosecution would decide to file charges in the case. Probably not. Once they decide to file, apparently a motion to dismiss is hard to get (though not impossible). Prosecutors generally consider their win/loss record important. Seems to me they're not likely to file charges in a case they know they can't possibly win.
     
  13. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    • They might find it. If the car is set on fire, they're guaranteed to find it.

      A car doesn't burn to ashes and blow away in the wind.

      Why is setting the car on fire, thus absolutely guaranteeing that the police will find it, better? What makes a burned car better than an intact car? Why is guaranteed police detection better than possible police detection?

      Do they WANT the police to find it? Is there some reason why a big dramatic event like a burning car, an event that will sharpen locals' memories and make them more likely to remember when that car was parked there, who got out of it, what they looked like, etc., a good thing?
     
  14. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks, for the advice Steerpike.

    As for the car, if the cop would put out on the radio for the other cops to look for it, wouldn't they be looking and likely find it, even if it was parked, once they set up a perimeter and blocks to stop the car from getting away. Wouldn't they likely find it, and possibly find DNA of the suspects inside?

    If they burn the car, yes it's more noticeable, but the DNA can be burned with it and is gone then.
     
  15. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    1) There's no assurance that the DNA would be destroyed. It's not as if the burned car is a furnace.
    2) This is barely-a-crime or not-a-crime, right? I doubt that they'd do DNA tests. DNA tests are expensive and take a long time, and if they don't have a suspect, there's no one to match the DNA against.
    3) On the other hand, burning a car is a crime. So to cover up barely-a-crime or not-a-crime, they commit a crime.
    4) Also, as I said, a burning car is likely to make the memory of that car and anyone associated with it nice and fresh, so the people who got out of it are more likely to be caught by the police.

    Conclusion: Burning the car would be a mistake.
     
  16. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks, for the input. I won't have them burn the car then, thanks. I thought they would still collect the DNA though. Maybe not test it, but collect. So if the villains were to commit future crimes, that are much worse, there DNA could not be on file, more likely than if the car were burnt. In the movies Point Break (1991) and The Town (2010) the burning of the car seemed to do a good when it came to frying DNA since the cops never said they were able to get some later. But if I don't burn the car, would the crooks have to worry about their DNA now being on file, and having a test down, in the future possibly, when it comes to building a case on their future crimes?
     
  17. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    But this is still a non-crime. I suspect that police resources are pretty stretched, and are unlikely to have the spare capacity to even find this car, much less go through it as if it's the scene of a murder, just because that car might have been involved in a prank.

    An analogy: Let's assume that an expert burglar CAN open any door he wants, and CAN quietly search any house he wants. Would you then assume that that burglar HAS searched every home in a city of millions of people?

    The existence of a capability doesn't mean the existence of an infinite supply of that capability.
     
  18. Ryan Elder
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    Ryan Elder Contributing Member

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    Oh yes, I know but the suspects have committed other felonies in the past, and they are still worried that the DNA may be matched to other felonies, or future ones later on, if collected.

    But if the police will not bother to test it, then I guess burning the car is not work it. I thought that maybe resisting arrest would give the police a reason to test it, if they found the car. Thanks for the insight.
     
  19. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    If they have their DNA from past crimes, they have their DNA--DNA from un-captured criminals. If they arrest them, they have their DNA. If they get their DNA from future crimes, they will have their DNA. Why does having their DNA from this car matter? The criminals are not with the car. So getting DNA from the car would be another sample of DNA from un-captured criminals.

    I can't see how that would hurt the criminals, certainly not enough to raise a big "LOOK LOOK SOMETHING SERIOUS HAPPENED LET'S INVESTIGATE MORE DEEPLY" flag for the police, when they want the police to instead shrug and say, "Oh, it was just a prank."

    If the criminals are that afraid of having their DNA collected, they'd have to go on a burning spree, burning down every taxicab, restaurant, hotel room, bathroom, and shop that they enter.
     
  20. Ryan Elder
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    Ryan Elder Contributing Member

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    But an APB is put out on the car, and the car is now thought of to be driven by kidnappers who escaped their own kidnapping of a hostage. If the car is suspected to be driven by kidnappers doesn't that give the police a reason to take the DNA, since an APB was put out on the car, when a kidnapping was in progress, and the car said to belong to the suspects who resisted arrested and fled?
     
  21. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    What good will the DNA do the police, and what harm will it do the criminals? You still haven't explained that.

    Also, the police now know that the kidnapping was a prank. Why would they spend their precious budget sending DNA from a prank to be tested?
     
  22. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Anyway--it's clear that you really, really want the burned-out car, whether it makes sense or not. So do it. Maybe these criminals are unbalanced and set fire to every car they ever sit in. Maybe they're serial arsonists. Maybe that's how the police track them.
     
  23. Ryan Elder
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    Ryan Elder Contributing Member

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    Well the gang is suspected of other felonies, so wouldn't the police want to try to match the DNA with the DNA collected from other felonies, to see if they have a match? If they do, then they can charge the one gang member who was caught, with conspiracy, and attempt to get him to a cut a deal and give up the others possibly.

    This is why I thought they would burn the car.
     
  24. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    I'm giving up. You want to have them burn the car. You will do it whether it makes sense or not. Do it.
     
  25. Ryan Elder
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    Ryan Elder Contributing Member

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    They don't have to burn the car, I just don't see how they can leave their DNA inside, when the one of them who didn't escape with them, could be charged with conspiracy, and the DNA can be used to support the case, if it's matched to the past crime scenes.
     
    Last edited: May 19, 2016

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