# What is the most serious crime anyone ever got away with because of a legal loophole or technicality **URL:** \ **Category:** Factual Questions\ **Created:** [December 3, 2016, 10:42am UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715 "2016-12-03T10:42:35Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [December 6, 2016, 5:15pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/61 "2016-12-06T17:15:01Z")
No, all that doesn’t necessarily get thrown out. What gets thrown out is the evidence gathered illegally, as well as evidence that could only have been gathered as a result of that illegal evidence. But suppose you pick up a suspect. You take him in the back room and beat a confession out of him. And during the beating he tells you that the body is buried way out in the woods. You go out there, dig up the body, and find the murder weapon and the suspect’s DNA. Your case is well and truly fucked, because all your evidence is a result of that initial interrogation. You never would have found the body without the confession. You never would have found the murder weapon. You never would have found the killer’s DNA. All those things have to be excluded, because that’s the only way to prevent cops from doing it anyway and getting a slap on the wrist. But it’s not like everything goes out the window. Just the stuff that was the result of the interrogation. Yes, the confession gets thrown out. But you can build a case without the confession. If you have video evidence that doesn’t get thrown out, witnesses don’t get thrown out, and so on. Not getting read your Miranda rights isn’t a get out of jail free card, it’s a “get your statements made during the interrogation thrown out” card. ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [December 6, 2016, 6:45pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/62 "2016-12-06T18:45:28Z")
It’s not a legal technicality if the party is above the law. And I think the question could easily be narrowed to legal technicalities at the level of national law or below, to avoid getting off on a tangent of actual comparability of international law (which lacks a corresponding international sovereign entity) to national law. So no Hitler or Bush/Cheney etc (if you want to get your current day political points in 🙂 ) or absolute monarchs of the past. Also some posts seem to adopt the position that eg. a search warrant wasn’t valid, the incriminating evidence found really doesn’t exist. Interesting metaphysical view, but I don’t buy it. There is a threshold question how you _know_ a person is guilty if a court can’t/doesn’t find so, but that may still apply even if a court does find them guilty, so 100% certainty isn’t a practical benchmark. And the skew whereby a failure to prove means not guilty is for the purpose of allowing punishment by the state. There’s no logical or moral obligation to think people found not guilty actually didn’t do it. It depends. OJ didn’t get off on a legal technicality but a poorly presented strong case, a good defense, and a clearly wrong decision by a jury. Again, same can happen in the other direction: well presented weak case, bad defense, jury mistake, conviction of the innocent. Technicality to me is where the process is influenced by the exclusion (according to the rules) of highly likely to be true facts. That didn’t happen in OJ case. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [December 6, 2016, 7:02pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/63 "2016-12-06T19:02:58Z")
I recall a legal case some years back when the suspect walked into the police and confessed without and encouragement from the police. Later his lawyer argued that the confession was coerced – by God. Or perhaps by a voice in his head that the subject _believed_ was God. He was supposedly compelled by God to confess. IIRC, the defendant did not prevail with this position. The confession stayed in and the man was convicted. ---
**Author:** ![Sparky812](https://avatars.discourse-cdn.com/v4/letter/s/eb9ed0/32.png) [@Sparky812](https://boards.straightdope.com/u/Sparky812)\ **Post date:** [December 6, 2016, 8:20pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/64 "2016-12-06T20:20:27Z")
I wouldn’t call it a loophole or technicality but there is outrage brewing here in Ontario after a judge stayed a murder case because it took too long to go to trial. > **[Ex-soldier's murder charge stayed following nearly four year delay](https://ottawasun.com/2016/11/15/ex-soldiers-murder-charge-stayed-following-nearly-four-year-delay)** > > As an alleged killer walked free on Tuesday because his first-degree murder case had taken too long — four years — to get to trial, an Ottawa judge made a… ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [December 6, 2016, 8:31pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/65 "2016-12-06T20:31:17Z")
> [@Bricker](#): > > You made a similar claim (that this represented the crime of being a death threat) in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=802658) in August. > > The claim was rebutted, with cites, in that thread. > > Why are you continuing to offer up this act as a crime, when you know, or should know from the previous thread, that it is not? > > Same question. I forgot about that thread. My comments still stand. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 8, 2016, 3:30am UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/66 "2016-12-08T03:30:13Z")
As **Martin Hyde** and others have commented, there’s real confusion in this thread about what people mean by a “technicality”. The real theme of the thread seems to be “people who did IMHO a bad thing and never got punished for it,” not acquittals based on technicalities. Take the driving example mentioned in the OP, the assault on a pregnant women with intent to cause a miscarriage, and no rape by deception of an unmarried women, mentioned by other posters. If the law doesn’t prohibit those actions, the fact that the individual doesn’t face a charge isn’t a technicality; that’s a basic principle of a fair legal system: “_Nulla poena sine lege_” - “no penalty without a law.” Or, to put it another way: **Outraged Citizen** : “I can’t believe that guy is going to get away with X. That’s just wrong! He should be locked up!” **Cautious Lawyer** : “Um, you do know that doing X is not an offence? The legislature has never passed a law making doing X a crime.” **Outraged Citizen** : “Oh sure, if you want to get _technical_ about it…” That also applies to the examples given of national leaders who have taken their countries to war. Nations have the legal authority to do things, like going to war or locking up people convicted of crimes, that private individuals cannot do. That in itself can’t be considered a “technicality”, since those leaders have legal authority to do what they have done. If they exceed that legal authority, yes, they may be liable (e.g. A war crime), but that’s determined on a case-by-case basis, not by a general statement that national leaders have committed crimes and got away on a technicality. Nor is Nixon a good example. There was no technicality there. The US Constitution gives the President the power to issue pardons for crimes committed against the United States. President Ford chose to use that power to pardon Nixon. A presidential pardon is not a minor technicality: it is the exercise of an important constitutional power. Nor is the acquittal of O.J. Simpson an example of a technicality. As **AK84** alluded to, Simpson was given a full trial; all the evidence known at the time went in; the prosecution did a poor job; the defence did a good job; the jury acquitted. An acquittal on the merits is not a technicality. Nor is the acquittal of the Bundys an example of a technicality. The prosecution chose to charge them with a conspiracy, and not individual offences. That meant that they were only in jeopardy on the conspiracy charges. Part of the principle of _Nulla poena_ is that the accused is only tried on the actual charges, not on other charges that could have been brought but weren’t. The jury acquitted because the prosecution hadn’t proved the conspiracy charges on proof beyond a reasonable doubt. That’s not a technicality, but a bedrock principle of a fair trial. The possibility that the prosecution might have secured a conviction on individual charges is on the prosecution, not an instance of an acquittal on a technicality. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [December 8, 2016, 10:45am UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/67 "2016-12-08T10:45:07Z")
> [@Northern\_Piper](#): > > In Canada, that would be a breach of the Crown disclosure rules. A Crown prosecutor who connived at hiding the origins of the weapon could face professional sanctions and a conviction could be overturned if the information came out. In the UK there are also disclosure rules, of course. But in the case posited, to reveal the source is also to reveal that the defendant knew where the gun was, and I can’t see any competent defence lawyer wanting to make much of that. My point was that how the police came to decide where to look isn’t exactly relevant to the fact of a gun’s existence when it’s found: of course, it might then be suggested that there’s nothing to show they didn’t plant it where they found it, but if ( for example) it carries forensic evidence that it had been handled by the defendant, that also presents questions for the defence to answer. What seems wrong to me would be to pretend it hasn’t been found, simply because the police ought not to have heard of it by that particular route. It would still remain necessary to prove, by legitimate means within the rules of due process, a connection between the gun and the defendant. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 8, 2016, 2:06pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/68 "2016-12-08T14:06:59Z")
> [@PatrickLondon](#): > > In the UK there are also disclosure rules, of course. But in the case posited, to reveal the source is also to reveal that the defendant knew where the gun was, and I can’t see any competent defence lawyer wanting to make much of that. Rulings on exclusion of evidence are handled by the judge alone, generally prior to trial, but certainly outside the hearing of the jury. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 8, 2016, 6:45pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/69 "2016-12-08T18:45:00Z")
> [@Chefguy](#): > > For some reason Hirohito was not one of those tried, and continued to rule Japan until 1989. No, not “rule”. “Reign”. The Emperor was a figurehead only. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 8, 2016, 6:51pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/70 "2016-12-08T18:51:56Z")
> [@Throatwarbler\_Mangrove](#): > > The first or close to first case we learn about in law school is [Keeler](http://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-kadish/defining-criminal-conduct-the-elements-of-just-punishment/keeler-v-superior-court-2/2/), in whcih Keeler assaulted his ex-wife with the express intention of killing the fetus she was pregnant with, but under California law killing a fetus is not murder. Except he could have been charged with many other crimes. Just not murder as indeed, he didnt murder anyone. Poor decision on the part of the DA. However it doesnt say if he was charged with other crimes. By the way, your link is for shit, takes you to a bad site that wont let you read. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 8, 2016, 6:54pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/71 "2016-12-08T18:54:38Z")
> [@Emerald\_Hawk](#): > > Another example of a technicality in my opinion is when the jury unanimously agrees that the defendant is guilty of a lesser offense, but is prohibited from that verdict because the prosecutor and judge have demanded they only consider a more serious charge. The jury thus votes for acquittal, and the prosecutor is now barred from re-trying the case due to double jeopardy. > > I understand that the state does not want juries the to always compromise on a lesser offense just to get back to their lives. But this does lead to defendants getting off due to a tactical blunder by the prosecution, rather than their actual innocence or a failure to prove they are guilty of something. > > I would argue that this happened in the [Ammon Bundy Oregon standoff case](http://boards.straightdope.com/sdmb/showthread.php?t=808742). > > From Juror 4: Yep. Also in Santa Clara where two Hellls’ Angels, acting as bouncers for a strip bar, beat up a guy, who died. There were charged with Murder 1, but the jury disagreed, and later said that Manslaughter or even lesser murder charges would have worked. Instead they walked. Yep, Bundy is another example of over charging. ---
**Author:** ![John\_Bredin](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@John\_Bredin](https://boards.straightdope.com/u/John_Bredin)\ **Post date:** [December 8, 2016, 7:47pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/72 "2016-12-08T19:47:55Z")
> [@Emerald\_Hawk](#): > > Another example of a technicality in my opinion is when the jury unanimously agrees that the defendant is guilty of a lesser offense, but is prohibited from that verdict because the prosecutor and judge have demanded they only consider a more serious charge. The jury thus votes for acquittal, and the prosecutor is now barred from re-trying the case due to double jeopardy. > > I understand that the state does not want juries the to always compromise on a lesser offense just to get back to their lives. But this does lead to defendants getting off due to a tactical blunder by the prosecution, rather than their actual innocence or a failure to prove they are guilty of something. (Emphasis added.) I don’t know about elsewhere, but in Illinois a defendant also gets to choose whether the jury is instructed on a lesser-included offense. The defense can tender a lesser-included instruction, but it also can object to the State offering one. If the State wants a lesser-included instruction and the defense does not (or vice versa) it’s the judge’s discretion whether the instruction is given. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 8, 2016, 8:30pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/73 "2016-12-08T20:30:20Z")
> [@PatrickLondon](#): > > In the UK there are also disclosure rules, of course. But in the case posited, to reveal the source is also to reveal that the defendant knew where the gun was, and I can’t see any competent defence lawyer wanting to make much of that. > > My point was that how the police came to decide where to look isn’t exactly relevant to the fact of a gun’s existence when it’s found: of course, it might then be suggested that there’s nothing to show they didn’t plant it where they found it, but if ( for example) it carries forensic evidence that it had been handled by the defendant, that also presents questions for the defence to answer. > > What seems wrong to me would be to pretend it hasn’t been found, simply because the police ought not to have heard of it by that particular route. It would still remain necessary to prove, by legitimate means within the rules of due process, a connection between the gun and the defendant. The question basically is whether the police would have found it without violating the defendant’s rights. In the other example, the body was dumped in a place where ti would have been found eventually. OTOH, if the guy said “I tossed my gun off Pier 51” then it’s a long stretch to believe the police would ever have found it in the normal course of investigation. In that case, the gun itself is -logically- inadmissible. In any case, there’s probably plenty of evidence that incriminates the accused but is never found. Mere existence does not mean the prosecution can present the evidence, whatever its source. hey have to find it. Legally. (Or at least show that they would have found it in reasonable time without illegitimate information) As for killing a fetus - of course that’s not murder. Doctors do that all the time. However, assaulting a pregnant woman is exactly that - assault. If it causes a miscarriage, it’s assault causing bodily harm, or whatever the equivalent US crime is. (In fact, it’s in the Bible - if two men struggle, and happen to hit a pregnant woman so “her fruit come forth” but no other harm done, It’s a property crime punishable by fine; not considered murder. So this is not a loophole, it’s a long-standing aspect of laws.) ---
**Author:** ![Labtrash](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/labtrash/32/528_2.png) [@Labtrash](https://boards.straightdope.com/u/Labtrash)\ **Post date:** [December 8, 2016, 9:14pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/74 "2016-12-08T21:14:02Z")
What about Roman Polanski? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 8, 2016, 9:43pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/75 "2016-12-08T21:43:32Z")
> [@Labtrash](#): > > What about Roman Polanski? He pled guilty but then absconded before sentencing. He is a fugitive from the law, not someone who got off. ---
**Author:** ![Labtrash](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/labtrash/32/528_2.png) [@Labtrash](https://boards.straightdope.com/u/Labtrash)\ **Post date:** [December 8, 2016, 9:57pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/76 "2016-12-08T21:57:49Z")
> [@Northern\_Piper](#): > > He pled guilty but then absconded before sentencing. He is a fugitive from the law, not someone who got off. Ignorance fought - thanks ! ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 8, 2016, 11:10pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/77 "2016-12-08T23:10:02Z")
The wiki article is pretty good: [Roman Polanski sexual abuse case - Wikipedia](https://en.wikipedia.org/wiki/Roman_Polanski_sexual_abuse_case) Now, he hasn’t been extradited, but that’s because of two things: 1. He is a citizen of France and is living there. France will not extradite its own citizens. They see this as a fundamental protection for their citizens, so I would not characterise it as a technicality. It is an important legal protection under French law. 2. When he was temporarily in Switzerland a few years ago, the US applied to extradite him. The Swiss courts dismissed the application because they held that the US gouvernement had not provided detailed enough information about the plea bargain and the subsequent sentencing discussions to satisfy Swiss extradition law. I would not characterise that as a technicality either: extradition treaties require that the requesting country satisfy the other country that it would be fair to extradite. The US failed to meet that standard under Swiss law. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [December 9, 2016, 12:36am UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/78 "2016-12-09T00:36:59Z")
> [@Arkcon](#): > > I wonder if your stories are apocryphal, for one thing. > […] > However, the next US president, Ford, decided, “In view of the good he’s done – presumably, opening relations with China, beefing up the EPA – we’re just going to pardon him of anything he might have done, or known was happening.” Those quotation marks in your possibly apocryphal story don’t indicate an actual quotation. The actual quotation is “The prospects of such trial will cause prolonged and divisive debate”. [https://en.wikisource.org/wiki/Proclamation\_4311](https://en.wikisource.org/wiki/Proclamation_4311) ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [December 9, 2016, 12:48am UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/79 "2016-12-09T00:48:40Z")
> [@Bayard](#): > > In the awesome and disturbing documentary “Fog of War”, Robert McNamara made exactly that argument. It’s been a long time since I’ve seen it, but IIRC, McNamara was one of the chef planners of the bombing of Japanese cities, and he said that if the US had lost, he would have been prosecuted as a war criminal. The Japanese lived in paper cities, and judged arson to be a heinous crime that killed little children and families. Except when they did it to the Chinese. [Bombing of Chongqing - Wikipedia](https://en.wikipedia.org/wiki/Bombing_of_Chongqing) McNamara would certainly have been prosecuted as a war criminal if the US had lost. “They started it” isn’t a particularly good excuse. “It would have been worse if I’d done anything else” is a weak excuse. Together, I think they pass muster: I judge McNamara “Not Guilty”. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 9, 2016, 1:02pm UTC](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715/80 "2016-12-09T13:02:09Z")
> [@Emerald\_Hawk](#): > > Another example of a technicality in my opinion is when the jury unanimously agrees that the defendant is guilty of a lesser offense, but is prohibited from that verdict because the prosecutor and judge have demanded they only consider a more serious charge. What definition of “technicality” are you using, **Emerald Hawk**? It’s a basic principle of the criminal law that an accused only has to respond to the charge against him. That is a fundamental protection: the prosecutor must be absolutely clear what the charge is, and that’s all the accused has to respond to. If the prosecutor charges the accused with A and not B, it’s not a technicality that the jury cannot convict on B. That’s one of the fundamental protections of the criminal law in operation. [Previous page](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715.md?page=3) [Next page](https://boards.straightdope.com/t/what-is-the-most-serious-crime-anyone-ever-got-away-with-because-of-a-legal-loophole-or-technicality/773715.md?page=5)