I think we’ve all seen at least one movie or police procedural TV show where a character complains about a defendant who has “gotten off” or had a case “thrown out” or something of that nature because of a “technicality.” What the movie or show’s writers seem to mean with this line of dialogue is that the defendant was not convicted because some variety of constitutional violation made critical evidence inadmissible, although I’m sure they could also have in mind other “technicalities” like the statute of limitations, double jeopardy protection, or evidence tampering.

I’ve heard, on rare occasions, lawyers and judges refer to “technical” legal arguments or “legal loopholes,” but it’s mostly in popular culture that I’ve heard about this legendary legal strategy. The example that comes to mind first is that of Freddy Krueger, the fictional serial killer from A Nightmare on Elm Street (and its many sequels and one remake). For those who haven’t seen these fine films — and I am a shameless slasher movie fan — part of the origin story of the demonic Freddy Krueger is that he’s a serial killer who is caught but ultimately has to be released because a judge signed a search warrant while drunk or the police failed to read him his Miranda rights or something of that nature. The truth is, of course, not so simple. I have never heard of anything even remotely resembling this situation in real life, and I’m sure a real prosecutor would’ve found another “technicality” to defeat any such defense maneuver. (Don’t get me started about the so-called Quarles exception.)

Now let me get on my high horse for a moment. An unconstitutional stop of a motorist, for instance, occasionally taints some of the resulting evidence and makes it inadmissible in court. Or a confession is inadmissible because of a Miranda violation. Or some evidence obtained with a search warrant is admissible while some other pieces of evidence from the same search are inadmissible because of the way a search was conducted. Or a judge doesn’t allow “two-level” hearsay into the trial record. On the other hand, these and similar “technicalities” have more exceptions than I can count — Miranda doesn’t apply at probation hearings, bail is set after a probable cause determination based on only one party’s version of events, grand juries can hear whatever hearsay the prosecutor wants to supply, it’s not double jeopardy to be prosecuted separately by the federal and state governments for basically the same conduct, et cetera. Furthermore, all of these rules are in place for good reasons, even if in some instances they seem unfair.

Enforcement of our legal rights as individuals is no more a legal loophole than enforcement of the government’s legal rights is, and during a prosecution the government seems to have more loopholes at its disposal than the defendant does. Due process of law is not a technicality.