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dantem42
05-22-2007, 09:03 AM
Hopefully someone can help me on this. In my novel (just sold, so it's time to do serious tweaking), a policewoman enters the garage of a house without a search warrant because of an odd sound she heard coming from the garage (specifically, the sound is not really a moan or sobbing, but like the sound of the cries of humpback whales). There, she discovers several teenage girls held captive by a kidnapper.

I know that it's likely that the warrantless search poisons any physical evidence the police might obtain -- it's doubtful that an "odd sound" would be sufficient to let it be admitted, especially since it is not something obvious like a kid screaming "let me out!!". The question I have is, would the rescued girls be permitted to testify against the kidnapper in court, given that their discovery and rescue was the result of the warrantless search? FYI, the specific milieu is California.

Vanatru
05-22-2007, 03:39 PM
The testimony of the victims is a seperate thing than that of the officer so what they say is valid.

ideagirl
05-22-2007, 06:14 PM
Agreed, the girls' testimony is not going to be excluded on that basis. Only physical evidence (weapons, DNA, crucial documents etc.) gets excluded for that reason.

There are exceptions to excluding evidence from warrantless searches, so I'm wondering, where was the cop when she heard the noise, what was she doing on/near the property, etc.? There must've been other things that raised her suspicion, for her to actually go into a garage just because she heard a strange sound. I'm just trying to get an idea of the context, because there might be an exception that would let even that evidence get in.

talkwrite
05-22-2007, 06:36 PM
The crime and it's relevant charge would be kidnapping and any testimony from the victims speaks to proof that the captivity was against their will. How they were rescued would not be worth the time of the defense attorney to attack.
Sue Grafton's protagonist- a PI, is always "tripping" over crimes in progress like what you are describing. Her novels don't go into trials but the admissibility factors are included at the moment of her discovering a crime.

dantem42
05-23-2007, 06:03 AM
Thanks for the help, everyone.

The policewoman's coming on the property and circling the house is pure coincidence: from the street, she hears a crash from the back yard, and it turns out to be a couple of raccoons knocking over a garbage can. She tries to corner the raccoons to call animal control, and chases them to the garage side of the house, then hears the strange noise through a rotted part of the garage wall.

Okay, looking at it another way: is there anything that could transpire either during the girls' discovery or later that would give a judge cause to rule that the girls would not be allowed to testify against the kidnapper?

rugcat
05-23-2007, 09:35 AM
I'm not a lawyer but I was a cop, and I'm fairly solid on search and seizure. There's no reason in your description that would cause the girls' testimony to be inadmissible. If you're trying to find a reason that the girls can't testify, you're going to have to use something that comes up later, and it's going to be a stretch whatever you do.

Maybe you could make it simple--they won't testify because they're afraid something not related to the kidnapping will come out in court that they don't want known, or maybe they're just afraid. Friends of criminals have been known to intimidate witnesses, sometimes quite successfully.

It's not even a given that evidence found during the rescue would be ruled inadmissible. A smart prosecutor could make a good case for letting it in.

ideagirl
05-23-2007, 10:36 PM
is there anything that could transpire either during the girls' discovery or later that would give a judge cause to rule that the girls would not be allowed to testify against the kidnapper?

I second what Rugcat said. There are very, very few situations in which a witness and/or victim would not be allowed to testify--I'm talking VERY VERY VERY few, none of which apply here--and even when they're not allowed to testify, generally there's just one or a tiny number of things they're not allowed to testify ABOUT; so they can't be asked questions about "X", but they can talk about anything else. A blanket exclusion preventing them from testifying at all would probably never happen, unless maybe their testimony would be useless because they have complete and total amnesia (and oh please don't go there, it's such a deus ex machina and such a cliche).

People who have been adjudicated mentally incompetent--I mean people who are so mentally ill and/or retarded that a judge has ruled that they're not even competent to handle their own everyday life decisions--may still, in some cases, be competent to testify. If the witness were in the grips of a full-blown psychotic breakdown the day they're supposed to testify, maybe their testimony would get postponed until psychiatric medications brought them back to earth... It's THAT hard to get a witness held incompetent to testify.

So, I second what Rugcat said. If you want one or more of them not to testify, give a reason why they would decide not to (such as threats, or fear that something would be disclosed that they want to keep secret)... but remember that that isn't going to stop the case; the prosecution would still use everything it's got (physical evidence, such as defendant's DNA found on victim's thigh during hospital exam...) to find SOME way of putting the perp in jail.

MarkEsq
05-23-2007, 10:49 PM
Okay, looking at it another way: is there anything that could transpire either during the girls' discovery or later that would give a judge cause to rule that the girls would not be allowed to testify against the kidnapper?

Good answers so far. You could also have an interesting (to me, anyway) legal confrontation if you can portray your victim as somehow suffering from PTSD or another variant of mental difficulty arising from the kidnap. To wit, (wily defense counsel begins):

"Your Honor, the Victim is not competent to testify because she is extremely traumatized and mentally unstable as a result. Moreover, having been treated by the Sate's psychiatrists her suggestable state of mind renders her testimony untrustworthy and therefore inadmissible."
"But Your Honor, the Defendant cannot legitimately argue that because of his own actions, here the kidnap and abuse, the Victim is not too traumatized to testify against him. That effectively encourages criminals like him to destroy incriminating evidence, even if that evidence is a young person's sanity."
"But that puts the cart before the horse, Your Honor. My client is presumed innocent and therefore the prosecution, and this Court, may not claim 'spoliation' because as of right now my client is entitled to the assumption that he did not, in fact, kidnap and traumatize this young lady."
So on and so forth.

Jamesaritchie
05-23-2007, 11:28 PM
And you don't need a warrant if you have probably cause. Suspicious noises frequently are considered probably cause. It's up to the judge, but there's nothing this policewoman does that will automatically exclude any evidence.

ideagirl
05-24-2007, 02:44 AM
You could also have an interesting (to me, anyway) legal confrontation if you can portray your victim as somehow suffering from PTSD or another variant of mental difficulty arising from the kidnap. To wit...

Hmm... I guess that's theoretically possible, but it's highly unlikely. A witness is presumed competent to testify; the burden of proving she isn't competent falls on the challenger, here the defense, and it's very hard to prove her incompetent to testify. To prove she's not competent, they would have to get the judge to order her to undergo psychiatric testing, and/or they would have to access her medical (psychiatric) records. Either of those efforts would be highly invasive; medical examinations and medical records have quite significant privacy protections, and I think in most states psychiatric records get even higher protections than regular medical records. I don't see how one party could get access to the records of anyone on the other side, or force them into an evaluation, unless the other side has already "opened the door" on the issue (e.g. in a civil case, if someone claims they were psychologically traumatized by XYZ incident and are suing to get money damages, by claiming they were traumatized they've "opened the door" to courtroom evaluation of their psychiatric state, so their psych records can come into evidence). Here, no such door has been opened.

My guess is that if the slimy defense attorney tried such a gambit, the judge would just say something to the effect of "She's going to testify. You'll be able to cross-examine her, and you can put your own witness on to contradict her. The credibility of her testimony is a matter for the jury to decide. If she gets on the stand and it's obvious there's a major problem with her testimony, you can move to strike it. " Even if the woman does have PTSD, that doesn't mean she can't accurately recall enough information for her testimony to be useful at trial.

Tsu Dho Nimh
05-24-2007, 07:25 AM
"reasonable cause" is enough, if you think lives are in danger ... and wierd noises, stench or smoke coming from a garage is usually reasonable.

dantem42
05-24-2007, 09:01 AM
Thanks one and all for all the detailed comments. I will wrestle with this some more. I did talk with a homicide detective and he told me that probably physical evidence would be disallowed under just about any condition as mentioned here -- otherwise cops can always claim they heard a "suspicious noise" at every turn. Unless it's pretty clearly identified as the sound of a victim suffering (and maybe best heard by more than one observer), it could be just about anything. The fact that someone is, say, moving boxes around in his garage does not allow cops to enter on the claim of a "suspicious noise."