1. SilverWolf0101
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    SilverWolf0101 Active Member

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    Technical Law Question

    Discussion in 'General Writing' started by SilverWolf0101, Jan 11, 2013.

    First, I apologize if this is in the wrong place, please move it if it is.

    Okay, so as the title says I have a bit of a law question for a short story/writing skit I'm working on. I've tried to power through it thinking I could address the problem afterwards, but~ I happened to realize that doesn't work out so well when progressing on with the story is affected by this knowledge. Now, I've watched a ton of law shows, both true crime and Hollywood flare, and I've seen this happen a few times, but I'm not sure of how possible this actually is.
    My question?
    In this short story, a young woman of 23 is attacked by two guys who had every intention of robbing her. Of course the attempt was foiled by a concerned resident who heard the noise and intervened. The cops are then called and the young lady is taken to the hospital for treatment. The lead detective on the case, named Lance, has a feeling that something else is going on besides a simple failed mugging considering the girl is badly beaten and avoids answering any questions. The investigation sort of moves on to where the two men are convicted, but the officer still isn't convinced that it's over. So he decides to check into her past.
    My question is, how much information can he pull up?
    When I first wrote the scene out (he's reflecting the information) I pretty much spilled her guts on a legal basis. Basically, if there's a file on her through the courts, system, hospital records, and child services, he pulled it up. I've seen it done on the more fictional law shows, but I don't know if that's actually possible. So I'm wondering, how much information can he get about this girl by doing a search on her? Can he basically get all the information I presented? Or is there some boundaries in the system of law that I'm not aware of?

    Any help is much appreciated.
     
  2. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I think your bigger issue would be practical and logistical, rather than legal. Most juvenile court proceedings and child protective service-related matters would be sealed, although it might be possible to get a court order to open them. Anything dealing with health or mental health would definitely be off-limits (via HIPAA, at the Federal level, so that would not vary by state.)

    Although he couldn't get direct records from, for example, doctors or hospitals, he could get information from other people who knew her, who were not health care providers -- friends or other family members who knew what was happening, or had some sort of other involvement.
     
  3. Drusy
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    Drusy Senior Member

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    Actually, HIPAA has provisions that would allow medical and psychological records to become available as well.


    [5) Public Interest and Benefit Activities. The Privacy Rule permits use and disclosure of protected health information, without an individual’s authorization or permission, for 12 national priority purposes.28 These disclosures are permitted, although not required, by the Rule in recognition of the important uses made of health information outside of the health care context. Specific conditions or limitations apply to each public interest purpose, striking the balance between the individual privacy interest and the public interest need for this information.

    Required by Law. Covered entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulation, or court orders).29

    Public Health Activities. Covered entities may disclose protected health information to: (1) public health authorities authorized by law to collect or receive such information for preventing or controlling disease, injury, or disability and to public health or other government authorities authorized to receive reports of child abuse and neglect; (2) entities subject to FDA regulation regarding FDA regulated products or activities for purposes such as adverse event reporting, tracking of products, product recalls, and post-marketing surveillance; (3) individuals who may have contracted or been exposed to a communicable disease when notification is authorized by law; and (4) employers, regarding employees, when requested by employers, for information concerning a work-related illness or injury or workplace related medical surveillance, because such information is needed by the employer to comply with the Occupational Safety and Health Administration (OHSA), the Mine Safety and Health Administration (MHSA), or similar state law.30 See additional guidance on Public Health Activities and CDC's web pages on Public Health and HIPAA Guidance.

    Victims of Abuse, Neglect or Domestic Violence. In certain circumstances, covered entities may disclose protected health information to appropriate government authorities regarding victims of abuse, neglect, or domestic violence.31

    Health Oversight Activities. Covered entities may disclose protected health information to health oversight agencies (as defined in the Rule) for purposes of legally authorized health oversight activities, such as audits and investigations necessary for oversight of the health care system and government benefit programs.32

    Judicial and Administrative Proceedings. Covered entities may disclose protected health information in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided.33

    Law Enforcement Purposes. Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes under the following six circumstances, and subject to specified conditions: (1) as required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests; (2) to identify or locate a suspect, fugitive, material witness, or missing person; (3) in response to a law enforcement official’s request for information about a victim or suspected victim of a crime; (4) to alert law enforcement of a person’s death, if the covered entity suspects that criminal activity caused the death; (5) when a covered entity believes that protected health information is evidence of a crime that occurred on its premises; and (6) by a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of the crime or crime victims, and the perpetrator of the crime.
     
  4. Drusy
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    Drusy Senior Member

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    That being said, he wouldn't be able to just pull those records up on a computer. There would be some sort of request process.

    And just in case you need more info ... here is the link to the HIPPA site.

    http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html
     
  5. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    the problem i see is that he has no probable cause to be digging into her life, as she was a victim, not a perp... she could sue him and all involved with his search, including the PD, for invasion of privacy and anything else her lawyer can throw at them...
     
  6. Drusy
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    Drusy Senior Member

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    She could sue them but I doubt that it would go very far.

    Probable Cause for the purpose of conducting an investigation is considered as present when ...

    "2 : justification for an administrative search based on a showing that it is to be conducted in accordance with standardized nonarbitrary regulatory procedures designed to further public interest in regulatory enforcement that outweighs the intrusiveness of the search."

    So basically, as long as the investigator can assert that the search itself is necessary and justify it in accordance with securing public interest (i.e. stopping crime) then I think her basis for a suit would be dismissed. If she refuses to talk about what happened, it is very reasonable that she might threaten to sue - but, likely, it wouldn't amount to anything. Also, her motivations for a suit, in my veiw, would be dependent on why she doesn't want the information found. Is she embarrassed about something in her past? Or is she afraid of the men who hurt her? Either way, entering into a legal battle seems counter-productive.
     
  7. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I don't think this general investigation would have enough urgency and enough specific evidence to get a judge to make an exception to HIPAA. It's a pretty high standard.

    At the other end, there is no need for 'probable cause' to investigate. Probable cause is a legal term to gain to get around a Constitutional right against unlawful search and seizure. Just investigating someone in general, when there is any reason to believe a crime may have been committed isn't enough to file a lawsuit. It would have to rise to the level of unwarranted harassment that was infringing on the person's life. There's a whole lot you can find out just from public records and people willing to talk. The bigger issue here again, would be one of practicality. Would the police officer have the time to spend on this investigation? Would the police chief okay the utilization of department time and resources on this investigation if there isn't real cause to believe that a crime occurred? She might -- but it depends on the setting and circumstances -- i.e. how big is this PD? How big is the city? How many other cases do the police need to be working on? Why would this case get priority? You could probably come up with a justification, but you need to realize that the other issues would need to be overcome.

    EDIT: Just to clarify. Anyone could *file* a lawsuit. Crazy people file baseless lawsuits all the time. In this scenario, a lawsuit against the police to stop investigating would go nowhere.
     
  8. Drusy
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    Drusy Senior Member

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    I totally agree. What's possible isn't always practical. But it is still possible. I guess it would depend on the rest of the story.
     
  9. SilverWolf0101
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    SilverWolf0101 Active Member

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    So just reading the responses practicallity may be my main issue as you said.
    And right now the only real reason he's digging around for info is because his police instincts tell him that there's something else to be addressed here, but he can't figure it out. In the first initial contact with the girl, directly after the mugging attack, she would freak out and try attacking anyone who touched her, which he couldn't understand why she would do such a thing over a mugging. Once he's in the hospital though and gets the doctor's report about her condition, he can tell that something definitely isn't right. According to the statements he's collected, the two guys that attacked the girl wouldn't have enough time to do the amount of damage that the doctor reported. When he tries questioning her she refuses to talk about the night and closes him out. When her mother shows up he tries asking her mother for information but the older women acts dodgy and gets defensive easily over simple everyday questions.
    Basically his instincts as a police officer is telling him there's more then what's being said and he wants to get to the bottom of it. Which is why he went digging for information.

    With that being said, could he get a court order to get the information he needs with the evidence he has? Or does he need some solid proof beside a doctor's report that further investigation is needed?
     
  10. Scarfe
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    Scarfe Member

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    It is this simple, you cannot slander or defame someone. If my character were to say 'I like watching Beckham play football' that is fine. If they were to say 'Johnny Beckham screwed his dog' that is unacceptable. (I practice law before the comeback, it really is that simple).
     
  11. chicagoliz
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    chicagoliz Contributing Member Contributor

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    No. And he wouldn't get a doctor's report in the first place. That is exactly the type of patient confidentiality that HIPAA protects. The only way he could get one would be if the girl gave it to him or signed a release or a request to the hospital to give the report to the police, which given your scenario, doesn't seem likely.

    The only way your police officer would get this sort of info is if someone, like a friend came to him with his or her suspicions and described her injuries as he perceives them.
     
  12. Scarfe
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    Scarfe Member

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    Oh, did I miss the point? Court order only both in US and UK.
     
  13. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I think so, because there wasn't a question about defamation.

    I don't know the answer in the UK. I only know about US law. Since the OP's name square indicates he's in New York State, I'm assuming his story takes place in the US and would therefore deal with US law. Someone else would have to answer the question with respect to other countries. And of course, in an alternative universe, anything is possible.
     
  14. Scarfe
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    There is always the possibility he has a mate on the 'inside'... who would be willing to see 20 years plus? when I say 20 years plus remember this is among people he sent down, so death.
     
  15. SilverWolf0101
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    SilverWolf0101 Active Member

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    Sorry for the confusion, but yes, I was asking about US laws because that's where I live and I'm not familiar with anything oversees, other than what I watch/read.
     
  16. Scarfe
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    US law largely derives from British law, I think what I said stands.
     
  17. SilverWolf0101
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    SilverWolf0101 Active Member

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    So I think I found a solution to my problem, but I'm still worried it might trespass on the law so I wanted to check before I went back and did the editing.
    In the reworkings, I have it so that the police officer goes to the girl's house to inform her of the ruling concerning the mugging, his reason for doing this is because it is on the way home from work, and he believes it will bring the girl a sense of ease. While he is there talking to the girl, her house is suddenly the subject of a drive-by shooting. The police officer finds that having two crimes so closely related to each other and involving the same girl is too strange to be coincidental (sp?), he decides to further the investigation and try and get the truth out of the girl once and for all.
    Will this approach work? Especially if, driven by fear, the girl starts to admit some of the things she was reluctant to reveal to the police before?
    I realize that I still have to address the issues of the officer focusing on this one case, and possibly making it more practical, but I'm hoping rewriting the piece from this approach will start me on the road to making this a better work overall.
     
  18. Drusy
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    Drusy Senior Member

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    This is just me ... but I like the re-work you came up with. Makes more sense for me as to why he is pursuing it.
     
  19. Selbbin
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    Selbbin I hate you Contributor

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    Huh?
     
  20. chicagoliz
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    chicagoliz Contributing Member Contributor

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    That does seem more workable, and I don't see why there would be any problem with his investigating now, since he'd be investigating the shooting, too. My only question is what do you mean by the 'ruling concerning the mugging?' If it's some sort of legal ruling, she might have been there, or someone in the DA's office might have informed her, but I guess it's possible a police officer might want to tell her in person if he was especially concerned about the case and her, etc.
     
  21. Drusy
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    Drusy Senior Member

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    I agree. It's a little unorthodox but if she was afraid to face the muggers, she might not have gone. I would expect though that her attorney might have phoned before the cop could make his visit so he might stop by to just check up on her. Or to ask if she'd heard yet.
     
  22. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    if she's only the victim, why would she have an attorney involved?
     
  23. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I had this thought as well. But it doesn't really matter. It's *possible* she could have an attorney. Or someone from the D.A.'s office might call her.

    There are many scenarios that might occur -- and again, there are differences between what is most likely or practicable and what is theoretically possible.

    I've learned over the years that just because something makes no sense doesn't mean it didn't happen. Although I think we want to avoid this in our writing, there are lots of ways that things could be explained.
     
  24. Drusy
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    Drusy Senior Member

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    I'm sorry, I wasn't very concise... by "her attorney" I only meant by whomever is representing her in court. DA is sufficient.
     
  25. SilverWolf0101
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    SilverWolf0101 Active Member

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    @Chicagoliz I've often seen in tv shows, and read in some books, where the officer would go to the victims house to inform them of how the case turned out. I thought that I could use the same approach with this case to try and work around the initial issue of why he needs a reason to further the investigation. I hadn't exactly thought of the presence of the DA, as I don't often hear much about smaller crimes using legal presence.
    @mammamaia I've never heard of the smaller cases using a lawyer so I didn't use one.
    @Drusy You're kind of touching base on her main problem, and reason for not wanting to deal with the legal authorities. I don't want to give my work completely away if I can help it, but fear is the most powerful tool here, and it's determining her actions.
     

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