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Old 05-13-2019, 01:10 PM
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"Threshold of probability" necessary for prosecution (self-incrimination vs. hearsay)


Suppose that John Doe one night has had one drink too many in a restaurant and begins bragging to someone, "Hey I once shot a man and buried him in the woods; the Feds will never find him" - and a district attorney happens to be within earshot - would that be enough for the DA to press charges on the spot?

Or, rather than self-incrimination, suppose that aforementioned John Doe has a nasty breakup/divorce and his ex goes on Twitter, "Hey, John Doe once committed murder decades ago, he told me so before!" would that meet the threshold for prosecution?


Additionally, suppose that John Doe become sober and is smart enough not to incriminate himself further due to knowing his 5th Amendment rights, and refuses to give out info such as the murder victim's identity and date of murder, etc. - how would the courts prosecute such a homicide case, exactly, if they cannot establish any facts of the matter?
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Old 05-13-2019, 01:24 PM
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Originally Posted by Velocity View Post
Suppose that John Doe one night has had one drink too many in a restaurant and begins bragging to someone, "Hey I once shot a man and buried him in the woods; the Feds will never find him" - and a district attorney happens to be within earshot - would that be enough for the DA to press charges on the spot?

Or, rather than self-incrimination, suppose that aforementioned John Doe has a nasty breakup/divorce and his ex goes on Twitter, "Hey, John Doe once committed murder decades ago, he told me so before!" would that meet the threshold for prosecution?


Additionally, suppose that John Doe become sober and is smart enough not to incriminate himself further due to knowing his 5th Amendment rights, and refuses to give out info such as the murder victim's identity and date of murder, etc. - how would the courts prosecute such a homicide case, exactly, if they cannot establish any facts of the matter?

To obtain a conviction, the prosecution would need to know some facts. A person couldn't be prosecuted based on the facts in your OP. You have to prove jurisdiction (did the crime take place in this state?) and probably the identity of the victim (and maybe it was self defense). [I can imagine the possibility ofa prosecution with an unidentified victim, but it's not likely.] And, generally, they would need some evidence of a crime before the "confession" could be admissible.

See Corpus Delecti Rule:

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Every law student in California, even in the first year, learns the corpus delicti rule. It states that in order to obtain a conviction, the prosecution must produce some evidence, independent of defendantís admission or confession, that a crime in fact took place. Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393, 157 Cal.Rptr. 809. This rule is generally introduced in evidence class, wherein the law student is taught that unless the prosecutor can produce some relevant evidence, proof, that a crime occurred before the prosecutor may introduce defendantís statements about the crime. Hall v. Superior Court (1953) 120 Cal.App.2d 844, 262 P.2d 351.

Likewise, a defendantís admission or confession without independent evidence that a crime occurred cannot establish proof beyond a reasonable doubt. Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 147, 35 Cal.Rptr.3d 12.
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Old 05-13-2019, 04:01 PM
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On the other hand, if the police do find a body buried in the woods, is there any reason the confession wouldn't be admissible? You have a right not to self-incriminate, but that doesn't mean you can't do it.
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Old 05-13-2019, 04:09 PM
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On the other hand, if the police do find a body buried in the woods, is there any reason the confession wouldn't be admissible? You have a right not to self-incriminate, but that doesn't mean you can't do it.

Correct. A body plus a confession, and they're good to go. (depending on the facts, the case could be pretty strong or pretty weak)
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Old 05-14-2019, 06:40 AM
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We did a similar thread a few years back: Guy confesses to a crime, then says nothing. Ever without the "being overheard" aspect, the consensus was that such a crime couldn't be tried.
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Old 05-14-2019, 06:56 AM
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For the D.A.'s office, it's all about convincibility. If they feel they can convince a jury and get a conviction, they will go to trial. If not, they won't. A drunk guy bragging in a bar? Uh-uh. Even if they did find a "body buried in the woods", they would have to connect it to the guy in some way. Let's face it, in a society with as high a murder rate as ours and with hundreds of people going missing every year, there's probably a plethora of bodies inhabiting the woods. Just digging one up is not enough.

Disclaimer: I am not responsible for any of the bodies in the woods.
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Old 05-14-2019, 07:01 AM
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As someone who has served on a Grand Jury, I wouldn't vote to indict this particular ham sandwich.

According to our instructions, our bar is Probable Cause. We have to believe that a crime occurred, and that the accused probably committed it. Hearsay is allowed, and the DA can ask the witness (usually a cop) leading questions about what happened. So, I could hear the claim, but without being able to link it to a particular murder, I can't even tell if the crime (if it happened at all) happened in my jurisdiction.

Re: the linked thread from MikeS, I'd probably vote to charge that guy, if the DA came forward with it. They would present me with the following evidence, "there was a murder with these details" and "This guy confessed to me, the cop" . When they get to trial, it's a different story.

Last edited by Cheesesteak; 05-14-2019 at 07:01 AM.
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Old 05-14-2019, 09:08 AM
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For the first paragraph, it's a good reason for going and looking for a body. Then, once you've found the body, then you need to establish a link. Then charges can be investigated.

For the second paragraph, try changing the charge to one of child or spousal abuse and watch how quickly Mr Doe gets arrested.
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Old 05-14-2019, 10:06 AM
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Originally Posted by Jasmine View Post
For the D.A.'s office, it's all about convincibility. ...

Disclaimer: I am not responsible for any of the bodies in the woods.
It is too hard to dig through all those roots. Meadows on the other hand are much easier to dig in. Just sayin....
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Old 05-14-2019, 10:56 AM
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For the second paragraph, try changing the charge to one of child or spousal abuse and watch how quickly Mr Doe gets arrested.
That's different, though. If Doe is accused of spousal abuse, then there is an immediately identifiable possible victim - his spouse. It's not like the "there is a body in the woods but no-one knows who/when/where" scenario.

Last edited by Velocity; 05-14-2019 at 10:56 AM.
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Old 05-14-2019, 12:13 PM
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That's different, though. If Doe is accused of spousal abuse, then there is an immediately identifiable possible victim - his spouse. It's not like the "there is a body in the woods but no-one knows who/when/where" scenario.
The basics have already been covered, but there are a few potential twists that haven't been mentioned. Depending on the circumstances, the DA in the first case, if they are going to bring charges, should probably have someone else do it, because the DA might wind up being called as a witness. You can't generally be both a witness and a lawyer in the same proceeding.

In the second example, you have the same issues as the first -- it's an uncorroborated confession, plus a couple more issues. You may wonder about hearsay, but probable cause can be based on hearsay. Plus, there's an exception for statements of a party opponent anyway, so that won't keep them out even at trial. But, what is the timing of the divorce in relation to when the statements were made to the ex-wife? Because if the statements were made during the marriage, confidentially, then the spousal privilege likely applies, and the ex-husband could prevent that evidence from being introduced due to it being privileged.
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