Tainted lineup

[Mmurf]

Jurisdiction

California

Investigators let a theft victim meet the suspect to pick up stolen jetskis. The next day they did a lineup and the victim chose the suspect out of a lineup. Since he had met the suspect the day before the lineup should be removed as evidence since the action of meeting the suspect to retrieve the jetskis influenced the lineup. What law applies to this situation?

 

[Zigner]

Investigators let a theft victim meet the suspect to pick up stolen jetskis. The next day they did a lineup and the victim chose the suspect out of a lineup. Since he had met the suspect the day before the lineup should be removed as evidence since the action of meeting the suspect to retrieve the jetskis influenced the lineup. What law applies to this situation?

The suspect should speak to his attorney (and only to his attorney).

 

[zddoodah]

Investigators let a theft victim meet the suspect to pick up stolen jetskis.

Are you an investigator, the alleged victim or the suspect? If none of those, what is your connection to the situation?

Since he had met the suspect the day before the lineup should be removed as evidence

There seems to be a word or two missing from this sentence, and I guess we're supposed to infer that charges were filed and the case is going to trial. The answer to your question is that this is certainly an argument that the defendant's attorney ought to consider making.

What law applies to this situation?

The Fifth and Fourteenth Amendments to the U.S. Constitution (and analogous provisions of the California Constitution), Part 2 of the California Penal Code, and any number of published cases based thereon.

 

[Mmurf]

I know its a stretch, but a good lawyer might be able to pull this off...Could you implement a successful Rule 21 motion based on pre-trial bias? Lets say its a very small community, investigators and prosecutors have a bias against defendant that is easily provable. Could you change the courts venue for pre-trial proceedings? We all know a trial can be unfair long before a jury is involved, couldn't bias affect the offers and how charges are brought forth (ie confirmation bias by investigators, pre-discovery offers, etc.?)

 

[Zigner]

I know its a stretch, but a good lawyer might be able to pull this off...Could you implement a successful Rule 21 motion based on pre-trial bias? Lets say its a very small community, investigators and prosecutors have a bias against defendant that is easily provable. Could you change the courts venue for pre-trial proceedings? We all know a trial can be unfair long before a jury is involved, couldn't bias affect the offers and how charges are brought forth (ie confirmation bias by investigators, pre-discovery offers, etc.?)

No, you cannot. The defendant, with the assistance of an attorney, might have a shot. You, of course, are neither an attorney or a party to the matter, so there's nothing you can do.

 

[zddoodah]

Once again: Are you an investigator, the alleged victim or the suspect? If none of those, what is your connection to the situation?

Could you implement a successful Rule 21 motion based on pre-trial bias?

What is "Rule 21"? Title 4 of the California Rules of Court covers criminal cases, but there is no "Rule 21." Since you asked about changing venue, that subject is covered in Ch. 2 of Division 2 of Title 4 (Rules 4.150-4.155), and the law regarding changes of venue is found in Ch. 6 of Title 6 of Part 2 of the Penal Code (starting with section 1033). Is "Rule 21" some sort of local rule in the unidentified county where the case is pending? Or is this a federal prosecution?

Lets say its a very small community, investigators and prosecutors have a bias against defendant that is easily provable. Could you change the courts venue for pre-trial proceedings?

Investigators and cops and prosecutors are presumed to have a bias against criminal defendants. Whether a change of venue might be appropriate depends on actual facts (not factual conclusions).

We all know a trial can be unfair long before a jury is involved

We don't know any such thing. It also makes no sense since a trial won't begin until the jury is empaneled.

couldn't bias affect the offers and how charges are brought forth

In the abstract, virtually anything is possible.

 

[flyingron]

It's not uncommon that the witness sees the alleged perpetrator again after the crime. Whether it is prejudicial or not depends on the circumstance. A lawyer will have to look into the situation with an informed, dispassionate, and knowledgeable bent.

 

[Mmurf]

No, you cannot. The defendant, with the assistance of an attorney, might have a shot. You, of course, are neither an attorney or a party to the matter, so there's nothing you can do.

Once again: Are you an investigator, the alleged victim or the suspect? If none of those, what is your connection to the situation?



What is "Rule 21"? Title 4 of the California Rules of Court covers criminal cases, but there is no "Rule 21." Since you asked about changing venue, that subject is covered in Ch. 2 of Division 2 of Title 4 (Rules 4.150-4.155), and the law regarding changes of venue is found in Ch. 6 of Title 6 of Part 2 of the Penal Code (starting with section 1033). Is "Rule 21" some sort of local rule in the unidentified county where the case is pending? Or is this a federal prosecution?



Investigators and cops and prosecutors are presumed to have a bias against criminal defendants. Whether a change of venue might be appropriate depends on actual facts (not factual conclusions).



We don't know any such thing. It also makes no sense since a trial won't begin until the jury is empaneled.



In the abstract, virtually anything is possible.

Once again: Are you an investigator, the alleged victim or the suspect? If none of those, what is your connection to the situation?



What is "Rule 21"? Title 4 of the California Rules of Court covers criminal cases, but there is no "Rule 21." Since you asked about changing venue, that subject is covered in Ch. 2 of Division 2 of Title 4 (Rules 4.150-4.155), and the law regarding changes of venue is found in Ch. 6 of Title 6 of Part 2 of the Penal Code (starting with section 1033). Is "Rule 21" some sort of local rule in the unidentified county where the case is pending? Or is this a federal prosecution?



Investigators and cops and prosecutors are presumed to have a bias against criminal defendants. Whether a change of venue might be appropriate depends on actual facts (not factual conclusions).



We don't know any such thing. It also makes no sense since a trial won't begin until the jury is empaneled.



In the abstract, virtually anything is possible.

Rule 21 - i thought is was a federal thing. Federal Rule of criminal procedure 21(a). Not many change of venues are usually granted. And when they are it is because there was so much media attention that they would be hard-pressed to find impartial jurors due to that coverage.

I was thinking that if there was a bias against the suspect then pre-trial methods might be unfair. For example, DA offers suspect 7 years, suspect says no, judge later throws out half the charges but DA doesn't submit a new, lower offer. Or, Investigators don't look into suspects story even though part of the story suspect gives is later proven 100% true. If there is evidence of a bias against suspect, could a change of venue be an option?

 

[zddoodah]

Rule 21 - i thought is was a federal thing. Federal Rule of criminal procedure 21(a).

So...is the case in federal court or state court?

You may not care, but if you don't answer the legitimate question I asked about your involvement in this matter, this will be my last post.

 

[Mmurf]

So...is the case in federal court or state court?

You may not care, but if you don't answer the legitimate question I asked about your involvement in this matter, this will be my last post.

Why is that a legitimate question? My involvement shouldnt affect the answer. And with all due respect, its none of your business. That being said- its my brothers case. Its state court but california has a similar rule for transferring venue. My brother is a sex offender and I think its causing a bias since his offense is listed wrong in his permanent file *he was charged with rape of his same age gf, but its recorded as rape of under 14 and ten years youger than offender* i think the charge being recorded wrong is causing a huge bias against him since it was posted on facebook now everyone thinks hes a child molester when it was his gf (same grade, same age). There have been many studies documenting that investigators are more likely to conduct an unfair investigation if they think a suspect is a child molestor. We have a lawyer but he hasnt been a help at all. He hasnt even corrected the mistake in his file. Its a theft charge, but the discovery came in and now my brothers being questioned about some naked pictures he took of his wife . He and my sister-in-law have been happily married for 10 years. They raided my brothers house and took his computer, thats where they found the photos. I think they were looking for child porn or something since they think he's a child molestor. I think this proves proves there is a bias or this has turned into a fishing investigation since he is facing a theft charge. Why bring up or look for naked photos in a theft investigation?? And why raid his house if he had already returned the stolen items to the owner 6 months prior?? In regard to the theft charge, the investigators didn't believe my brothers story so my brother took the guy he bought the stolen items from (the real thief) to civil court and was able to get the guy to say in court that he sold my brother the items (so his admitting to being the one that sold my brother the items is on the court minutes) . But even though we have solid evidence the investigators are not dropping the charges. I think its because they are so against him since they think he raped a child.

I just didn't want to get into all that. And yeah, we know, talk to the lawyer. The lawyer doesn't seem to be on my brothers side. Understandable since my brother is a sex offender and has been shunned his whole life (probably more than he should have been since his sex offender charge was recorded wrong) and he always says the wrong things. He just denies he's a child molester the whole time (which makes him look like a child molester) and doesn't address the facts of the case. Im looking for a lawyer thats used to working with sex offenders and is used to their paranoia, and when I find a new lawyer I wanted to layout my thoughts as to why I think a venue change is worth fighting for. Since I don't want to waste anybodys time (lawyers charge by the hour) I wanted to run it my this forum first to see if my thoughts were crap or worth bringing up.

But, like I said, its really none of your business and shouldn't affect the answers to my questions.

A discussion on the topics was all I was really looking for. Just to see what people more familiar with the justice system thanbmyself might think.

 

[Zigner]

I'll be blunt then also end my involvement.

BUTT OUT. Let your rapist brother speak to his own attorney about this. You are not helping.

 

[justblue]

Why is that a legitimate question? My involvement shouldnt affect the answer. And with all due respect, its none of your business. That being said- its my brothers case. Its state court but california has a similar rule for transferring venue. My brother is a sex offender and I think its causing a bias since his offense is listed wrong in his permanent file *he was charged with rape of his same age gf, but its recorded as rape of under 14 and ten years youger than offender* i think the charge being recorded wrong is causing a huge bias against him since it was posted on facebook now everyone thinks hes a child molester when it was his gf (same grade, same age). There have been many studies documenting that investigators are more likely to conduct an unfair investigation if they think a suspect is a child molestor. We have a lawyer but he hasnt been a help at all. He hasnt even corrected the mistake in his file. Its a theft charge, but the discovery came in and now my brothers being questioned about some naked pictures he took of his wife . He and my sister-in-law have been happily married for 10 years. They raided my brothers house and took his computer, thats where they found the photos. I think they were looking for child porn or something since they think he's a child molestor. I think this proves proves there is a bias or this has turned into a fishing investigation since he is facing a theft charge. Why bring up or look for naked photos in a theft investigation?? And why raid his house if he had already returned the stolen items to the owner 6 months prior?? In regard to the theft charge, the investigators didn't believe my brothers story so my brother took the guy he bought the stolen items from (the real thief) to civil court and was able to get the guy to say in court that he sold my brother the items (so his admitting to being the one that sold my brother the items is on the court minutes) . But even though we have solid evidence the investigators are not dropping the charges. I think its because they are so against him since they think he raped a child.

I just didn't want to get into all that. And yeah, we know, talk to the lawyer. The lawyer doesn't seem to be on my brothers side. Understandable since my brother is a sex offender and has been shunned his whole life (probably more than he should have been since his sex offender charge was recorded wrong) and he always says the wrong things. He just denies he's a child molester the whole time (which makes him look like a child molester) and doesn't address the facts of the case. Im looking for a lawyer thats used to working with sex offenders and is used to their paranoia, and when I find a new lawyer I wanted to layout my thoughts as to why I think a venue change is worth fighting for. Since I don't want to waste anybodys time (lawyers charge by the hour) I wanted to run it my this forum first to see if my thoughts were crap or worth bringing up.

But, like I said, its really none of your business and shouldn't affect the answers to my questions.

A discussion on the topics was all I was really looking for. Just to see what people more familiar with the justice system thanbmyself might think.

Anything your brother says to HIS attorney is protected by Attorney/Client privilege...Nothing you say to his attorney is protected. Help him pay for a good attorney but toss the bad idea of' "laying out your thoughts". Your brother is an adult and can deal with his issues without big sis butting in.

 

[Mmurf]

Anything your brother says to HIS attorney is protected by Attorney/Client privilege...Nothing you say to his attorney is protected. Help him pay for a good attorney but toss the bad idea of' "laying out your thoughts". Your brother is an adult and can deal with his issues without big sis butting in.

I explained myself to be polite, but this is a question and answer forum and I had questions. In theory you could always answer with "call a lawyer" or "butt out". But that doesn't make for a good question/answer forum, now does it? All I want is a discussion around the questions I asked. What I do with the information I gather is neither here nor there or any of your business.

 

[Mmurf]

I'll be blunt then also end my involvement.

BUTT OUT. Let your rapist brother speak to his own attorney about this. You are not helping.

You are very close minded. Any woman can lie. He's not a rapist .

 

[justblue]

I explained myself to be polite, but this is a question and answer forum and I had questions. In theory you could always answer with "call a lawyer" or "butt out". But that doesn't make for a good question/answer forum, now does it? All I want is a discussion around the questions I asked. What I do with the information I gather is neither here nor there or any of your business.

It is an advice site. We offer guidance to people that have legal issues. You, personally, are not having an issue. You are posting about your brothers serious criminal case, which is never a wise thing to do. Ask any Criminal Defense attorney what they think of family members post about their clients case on PUBLIC site.
So the very best advice anyone here can offer is to stop interfering in your brothers case and stop posting on the net about it. If you want to help help him pay for a good attorney to represent him.

 

[justblue]

You are very close minded. Any woman can lie. He's not a rapist .

Yes, he is. You weren't there and are relying on your brothers account. Brothers that sexually assault their 16 year old girlfriend will lie to their family.

 

[stealthy1]

Why is that a legitimate question?

Because this is a site to offer guidance to real people with their legal problems. Not for hypothetical discussions. Additionally, many here (and on other, similar, sites) prefer to deal with the actual person with the problem, as that reduces the "Telephone" effect (perhaps you're too young to remember the game I refer to) involved when third parties start trying to "help"...

We all understand family and the desire to help. But oftentimes, our help only muddies the water. And therefore, the best way to help those in legal trouble is often in providing our support - emotional and (if possible) financial to aid in obtaining legal services.

 

[Zigner]

You are very close minded. Any woman can lie. He's not a rapist .

On one hand, we have a biased family member.
On the other hand, we have the convicted rapist.

 

[leslie82]

Why is that a legitimate question? My involvement shouldnt affect the answer. And with all due respect, its none of your business. That being said- its my brothers case. Its state court but california has a similar rule for transferring venue. My brother is a sex offender and I think its causing a bias since his offense is listed wrong in his permanent file *he was charged with rape of his same age gf, but its recorded as rape of under 14 and ten years youger than offender* i think the charge being recorded wrong is causing a huge bias against him since it was posted on facebook now everyone thinks hes a child molester when it was his gf (same grade, same age). There have been many studies documenting that investigators are more likely to conduct an unfair investigation if they think a suspect is a child molestor. We have a lawyer but he hasnt been a help at all. He hasnt even corrected the mistake in his file. Its a theft charge, but the discovery came in and now my brothers being questioned about some naked pictures he took of his wife . He and my sister-in-law have been happily married for 10 years. They raided my brothers house and took his computer, thats where they found the photos. I think they were looking for child porn or something since they think he's a child molestor. I think this proves proves there is a bias or this has turned into a fishing investigation since he is facing a theft charge. Why bring up or look for naked photos in a theft investigation?? And why raid his house if he had already returned the stolen items to the owner 6 months prior?? In regard to the theft charge, the investigators didn't believe my brothers story so my brother took the guy he bought the stolen items from (the real thief) to civil court and was able to get the guy to say in court that he sold my brother the items (so his admitting to being the one that sold my brother the items is on the court minutes) . But even though we have solid evidence the investigators are not dropping the charges. I think its because they are so against him since they think he raped a child.

I just didn't want to get into all that. And yeah, we know, talk to the lawyer. The lawyer doesn't seem to be on my brothers side. Understandable since my brother is a sex offender and has been shunned his whole life (probably more than he should have been since his sex offender charge was recorded wrong) and he always says the wrong things. He just denies he's a child molester the whole time (which makes him look like a child molester) and doesn't address the facts of the case. Im looking for a lawyer thats used to working with sex offenders and is used to their paranoia, and when I find a new lawyer I wanted to layout my thoughts as to why I think a venue change is worth fighting for. Since I don't want to waste anybodys time (lawyers charge by the hour) I wanted to run it my this forum first to see if my thoughts were crap or worth bringing up.

But, like I said, its really none of your business and shouldn't affect the answers to my questions.

A discussion on the topics was all I was really looking for. Just to see what people more familiar with the justice system thanbmyself might think.

You should probably stop posting about your brother's case on a public forum. It would not be that hard to figure out who you are and then your brother - and anything you posted could be used against him.