Getting Off On A Technicality......

[Winston001]

In another thread Perry said:

Perry:
I noticed that criticisms of my perspective
fail to answer the matter of
'getting off on a technicality' and other
legally correct injustices.

I’ll give it a try. Firstly, there is no such concept in law as a technicality. The term is used by the public as shorthand for what is perceived as a puzzling, possibly unfair judicial decision.

Lawyers do not talk about technicalities because they are much more interested in the legal reasoning. Maybe the decision can be used as precedent in another case. The exception is the lawyer who has to mollify a losing client and refers to a technicality so the client blames the court system rather than accepting they simply lost.

There is no such thing as a technicality. A finding by a judge based on the rules of law and evidence in favour of a defendant means the law was not broken. Or in a civil case, the legal remedy sought is not available to the plaintiff.

Our legal system pits one party against another. Inevitably someone has to lose. Some of those people rail against the courts, the police, and the judges rather than accepting the loss. Occasionally judges do get it wrong which is why we have an appeals court structure.

[Keithw]

Oh thats right- theres no cases based on "technical non/compliance of due process" just like there is no statute of limitations on various actions, so if the act is committed before a certain date it can still be prosecuted, despite the fact that the time limit has run out - yeah right- tell that to owners of leaky buildings that have just gone past their 10 year limit !

[CJ]

There are technicalities. You can break one law but due to another law, you cant 'technically' be prosecuted for the breach.

eg. you were over the drink drive limit but because they didn't follow correct procedures, they couldn't use the blood sample as evidence so there is no proof.

eg. you were caught speeding by a camera but you can prove the sign saying there was a speed camera wasn't there and without the sign, the photo cant be relied on. (I am not sure if this law still exists but it did at first and I talked to someone who was going down that line of argument).

eg. you have a legal agreement saying you owe X $1,000 but it hasn't been enforced or acknowledged for over 6 years so the statute of limitations states that it cant be enforced.

eg. you fire someone for punching one of your other employees but because you didn't listen to their side of the story, you didn't follow correct procedure and have to pay them compensation. (actually this isn't a technicality but is similar)

[Winston001]

There are technicalities. You can break one law but due to another law, you cant 'technically' be prosecuted for the breach.

eg. you were over the drink drive limit but because they didn't follow correct procedures, they couldn't use the blood sample as evidence so there is no proof.

eg. you were caught speeding by a camera but you can prove the sign saying there was a speed camera wasn't there and without the sign, the photo cant be relied on.

eg. you have a legal agreement saying you owe X $1,000 but it hasn't been enforced or acknowledged for over 6 years so the statute of limitations states that it cant be enforced.

eg. you fire someone for punching one of your other employees but because you didn't listen to their side of the story, you didn't follow correct procedure and have to pay them compensation. (actually this isn't a technicality but is similar)

1. You have not broken the drink/drive law if the established procedures are not followed by the police. These procedures are seldom ever ignored by the police. Its a myth that drink/drivers get off - very rare.

2. Don't know about the camera sign but again, if that is the law, then no offence has been committed.

3. Yes there has to be a limit to a persons liability. You have 6 years to do something or walk away - pretty decent length of time. Bankruptcy by comparison is only two years and a clean slate.

4. What if the punched employee had just loudly accused the other person of sexually interferring with children? You can't know that unless you give the other person a chance to explain.

Oh thats right- theres no cases based on "technical non/compliance of due process" just like there is no statute of limitations on various actions, so if the act is committed before a certain date it can still be prosecuted, despite the fact that the time limit has run out - yeah right- tell that to owners of leaky buildings that have just gone past their 10 year limit !

The liability for building faults runs from the date the fault becomes apparent. That's been settled law since 1978.

There are very few exceptions to the 6 years limit under the Statute of Limitations. Registered mortgages, debentures, and certain serious crimes.

[Keithw]

"The liability for building faults runs from the date the fault becomes apparent. That's been settled law since 1978. "

Perhaps you should tell that to the councils that are spending hundreds of thousands in attempting to evade their liability using the 6 & 10 year limits and any other possible "technicality" including "no duty of care to companies" to get out of leaky building claims.


"You have not broken the drink/drive law if the established procedures are not followed by the police."
This seems staggering to me. Are you saying that the law has not been broken if the enforcement of the law is not correct ?
Surely if you drive while over the limit you have broken the law, same as if you speed.
Whether you can be correctly prosecuted or not may depend upon the enforcement, but regardless of enforcemment, you Did break the law.

[Winston001]

"The liability for building faults runs from the date the fault becomes apparent. That's been settled law since 1978. "

Perhaps you should tell that to the councils that are spending hundreds of thousands in attempting to evade their liability using the 6 & 10 year limits and any other possible "technicality" including "no duty of care to companies" to get out of leaky building claims.

Just because they are arguing that doesn't mean they are correct. Its up to the court to decide and that could vary from case to case. Personally I do think the councils should bear some liability. But it's far from a technicality if a council is found not to be liable.

"You have not broken the drink/drive law if the established procedures are not followed by the police."
This seems staggering to me. Are you saying that the law has not been broken if the enforcement of the law is not correct ?

Yes I'm afraid that is correct. You need to look at it from the point of view of protecting individual rights against the unlimited resources of the State. If the police could simply ignore all these pettifogging restrictions they certainly would.

But if you were ever falsely accused of something you'd be very glad of due process and protections such as the Bill of Rights.

[Xav]

I think the first two on CJ's list are good examples of getting off on a technicality. Largely that is a phrase applied to criminal proceedings rather than civil. I don't consider the Statute of Limitations a technicality, although I can understand why others might. I certainly don't think the employment example involves a "technicality" as most people would use that term.

Winston001, whether or not people do get off on technicalities and whether the rules under which those acquitals are made are justified are two different arguments. You appear to be addressing the later rather than the former.

I don't think it can be disputed that from time to time people do get off on technicalities. Even if the existence of those technicalities can be justified on the basis of protecting individual rights, that does not preclude injustices occuring in individual cases.

[Perry]

Interesting Perspectives

Black Letter Law or Justice?

In addition to weighing those, there's a need
to consider public perception. As sometimes
happens - when all the evidence predicates
guilty - but the officer inadvertently wrote the
year 2009 instead of 2010 on a particular
piece of paper, and the person escapes the
'obvious' penalty, public perception is that law
is indeed an ass.

The law is supposed to serve the cause of
justice. Most times it works. But it does not
work as it should, all the time. And that's with-
out pondering what I'd call 'quirks.'

Ever heard of anyone paying several fines
concurrently? Of course not. But several prison
sentences can be served concurrently.
.

[CJ]

1. You have not broken the drink/drive law if the established procedures are not followed by the police. These procedures are seldom ever ignored by the police. Its a myth that drink/drivers get off - very rare.

2. Don't know about the camera sign but again, if that is the law, then no offence has been committed.

If a tree falls in the woods and no one hears it does it still make a sound??

Or put another way, if I drive at 150km on the desert road and no cop sees it, have I broken the law?

Next step - if a cop does see me and his radar shows I was doing 151kmh. However, I can prove his radar hasn't been calibrated so it cant be used as evidence. Have I broken the law now (remember the law is, in biblical talk "thou shalt not drive over 100kmh")?

That fact that other laws and rules require certain steps before the law can be enforced results in the 'technicallity'

[Winston001]

Thinking about this overnight I realised that I'd over-egged the cake. Mia culpa.

So yes, laws are broken in the various instances above. However the alleged offender cannot be convicted because the evidence is tainted. Innocent until proven guilty.

In the United States protections against the abuse of police powers are held in even higher regard than here. Ergo an accused murderer who can prove he was not given the Miranda warning of his rights may walk free.

That's possible but not so likely here, the judges do bend the rules and look at the totality of evidence.

[eri]

a friend who is a policeman is amazed at the number of people arrested in nz who after confessing to the crime later expect the judge to throw the case out because the arresting officer didn't read them their rights

[CJ]

So yes, laws are broken in the various instances above. However the alleged offender cannot be convicted because the evidence is tainted. Innocent until proven guilty.

Got it, though as Xav said, it is normally in relation to criminal rather than civil offences. I am not sure what thread you got the quote from originally but you may have been thinking contract law rather than the criminal examples given.

[Perry]

What You See . . . .

Good of you to be so concessionary, Winston001.
The hallmark of a measured & reflective thinker.

I've experienced judicial rule-bending. But never
in favour of the aggrieved party. It may well
happen - but I've not been that lucky, so far.

I've just added another post to a thread that's
hard for me to cope with, so yet another example
can be pondered. And perhaps even learned from?
.

[Dunning]

FYI Speed cameras can be anywhere, there is no longer the requirement for them to signpost the area where they operate. This disappeared circa 1999.