Law question

[Louweasel]

Ok, who can help with my curiosity?

I like watching crime dramas such as CSI and obviously you get certain scenes where the suspect is being interviewed. Now, things are done differently here in some ways but of course it's hard to know what is real and what is for dramatic effect.

On american tv, it is common to see the suspect being interviewed alone, then after a bit (usually as they are starting to open up!) a lawyer turns up (sent for example by a rich father!) and bursts into the interview room saying "this interview stops now". Is this in any way realistic? Because there are several issues one could take from a purely british point of view.
Firstly, if a person wants legal representation (which they have a right to just as in the US) you can't start interviewing until they are there and have had chance to have a private consultation with the client. But also, if a person has declined legal representation (whilst being fully informed it is free, unconnected to the police etc.) then no solicitor/lawyer can barge in telling everyone what to do - he isn't your legal representative unless you say he is.
Secondly, whilst it is a lawyer's duty to protect his client's rights and interests he cannot stop the interview from happening - he can say that he needs to have a break for a private consultation but he can't simply call a halt. He certainly can't barge into the room whilst the interview is taking place.
Lastly, solicitors seem to talk a lot more in the US programmes - they are almost answering questions for their clients half the time. They aren't allowed to do that here - is it just drama or is it true?

By way of contributing something as well as asking questions, here's an interesting difference I found out recently between US and English law: In English law, there is no defence of entrapment. So, if a man murders his wife, and then confesses to a new girlfriend who turns out to be a policewoman that he did it, the confession is not admissible as it was made without him being fully informed of his rights etc. However, if he said during this confession that the body was buried in the back garden and the policewoman went off and dug up the skeleton, the remains would be admissible evidence, whereas in the US any matter arising from that confession would be inadmissible. I thought that was fascinating.

[Taomagicdragon]

Well, it has been done where a lawyer comes in to find their client under questioning, but that is fairly rare. IF one declines representation, I suppose, under a weird case, a fmaily could impose legal representation (ie parents for their child). If a lawyer is known to be on their way, no inerviewing begins. But, if it's unknown to be one, questionign could begin regardless of if a lawyer coems or not. The lawyer, charged by law, can barge in, but liek I said, fairly rare.

Anyone else IN the prefession that wants to give a better answer? (Certain mine is close to it, but likely still wrong)

[dcmdale]

Learning law from U.S. TV programs is pretty much a waste of time.

1. Drama/Ratings are far more important than legal accuracy.
2. Writers aren't required to have law degrees.
3. Time constraints prevent showing realistic courtroom scenes. That is, it might typically take 5 minutes in a real trial to establish foundation for a common document (say, a lease) to be admitted.
4. Real trials are boring.

[Taomagicdragon]

One of hte better ones I saw was Law and Order, but it was one that was more a docudrama i think it was called special cases or something, showed real case,s real lawyers, and real process, needless to say it lasted one season, I loved it, apprantly others found it boring *shrugs* Law and Order is my favourite law show though since JAG ended.

[Epee_Pox]

On american tv, it is common to see the suspect being interviewed alone, then after a bit (usually as they are starting to open up!) a lawyer turns up (sent for example by a rich father!) and bursts into the interview room saying "this interview stops now". Is this in any way realistic?

No. If a defendant asks for a lawyer, then questioning stops. But someone coming to the precinct claiming to be a lawyer for the defendant doesn't stop anything. And for someone purporting to be a lawyer to get past all the security back to the interview room, without anybody stopping him, is not very realistic either.

Firstly, if a person wants legal representation (which they have a right to just as in the US) you can't start interviewing until they are there and have had chance to have a private consultation with the client. But also, if a person has declined legal representation (whilst being fully informed it is free, unconnected to the police etc.) then no solicitor/lawyer can barge in telling everyone what to do - he isn't your legal representative unless you say he is.

If someone says they want a lawyer, you stop questioning. Nobody waits for a lawyer to show up, they just stop asking questions.

Secondly, whilst it is a lawyer's duty to protect his client's rights and interests he cannot stop the interview from happening - he can say that he needs to have a break for a private consultation but he can't simply call a halt. He certainly can't barge into the room whilst the interview is taking place.

If a lawyer advises his client to not answer any more questions, then that's that. The police aren't entitled to an interrogation, but the defendant does have the right to remain silent.

Lastly, solicitors seem to talk a lot more in the US programmes - they are almost answering questions for their clients half the time. They aren't allowed to do that here - is it just drama or is it true?

Yeah, defense attorneys always try to answer for their clients. A good prosecutor or detective will prevent that.

By way of contributing something as well as asking questions, here's an interesting difference I found out recently between US and English law: In English law, there is no defence of entrapment. So, if a man murders his wife, and then confesses to a new girlfriend who turns out to be a policewoman that he did it, the confession is not admissible as it was made without him being fully informed of his rights etc. However, if he said during this confession that the body was buried in the back garden and the policewoman went off and dug up the skeleton, the remains would be admissible evidence, whereas in the US any matter arising from that confession would be inadmissible. I thought that was fascinating.

That's not really entrapment.

Entrapment is when you're tricked into COMMITTING a crime, which (and this is important) you would not have committed otherwise.

If you're tricked into CONFESSING your crime, well then that's too bad for you.

A confession is inadmissible (as are its fruits) when it is taken against one's will. In the instance you cite, the confession appears to be completely voluntary and admissible.

[Pointy]

Learning law from U.S. TV programs is pretty much a waste of time.

1. Drama/Ratings are far more important than legal accuracy.
2. Writers aren't required to have law degrees.
3. Time constraints prevent showing realistic courtroom scenes. That is, it might typically take 5 minutes in a real trial to establish foundation for a common document (say, a lease) to be admitted.
4. Real trials are boring.

I totally agree. Anyone remember the show Ally McBeal? If they were such a darned profitable law firm, how come the associates were all out partying and drinking by early evening? And, if I remember right, I don't recall seeing anyone there actually WORKING.

Yes, yes. I know it's just a TV show but it seemed to unrealistically glamorize the legal profession. Most lawyers I talk to say that the profession is quite boring, staid, and plodding. They can, however, get paid pretty good coin!

[AndrewH]

Of course they can question you after you've asked for a lawyer. You just don't have to say anything.

It's like when you're arrested and read your Miranda rights (i.e. the right to remain silent). Which are immediatly followed by "now, if you want to make it easy on yourself, you should confess/implicate your friends". You don't have to say anything but if the police can get you to talk anyway, it's admissable in court since you were read your rights first.

[Epee_Pox]

If you're in custody, and you ask for a lawyer, the 6th Amendment right to counsel precludes the government from continuing to interrogate you without a lawyer present. If they continue to ask you questions, your answers would be inadmissible in court. And they'd have to prove that the rest of their evidence didn't derive from your answers. So ceasing questioning is the smart-cop option.

[AndrewH]

In theory, yes. However, there are many ways around that provision. Such as the "oops, that testimony the jury just heard is inadmissible? Guess they'd better forget about it before deliberating...". Also look up the "good faith exception" for otherwise inadmissible confessions/evidence.

[Epee_Pox]

you don't get to the "oops," because you have hearings before trial to determine what is and is not suppressed. if the prosecution then introduces suppressed evidence, that's a mistrial.

there are exceptions to almost everything in the law. but the right to counsel is about as absolute as it gets. (in new york, it's referred to as the "indelible" right.) and it's hard to argue "good faith" when a trained police officer continues to interrogate someone in custody who has requested a lawyer.

[Dee EffEll]

Of course they can question you after you've asked for a lawyer. You just don't have to say anything.

It's like when you're arrested and read your Miranda rights (i.e. the right to remain silent). Which are immediatly followed by "now, if you want to make it easy on yourself, you should confess/implicate your friends". You don't have to say anything but if the police can get you to talk anyway, it's admissable in court since you were read your rights first.

Sorry. That's exactly not true. See Brewer v. Williams, 430 US 387 (1977).

[AndrewH]

Sorry. That's exactly not true. See Brewer v. Williams, 430 US 387 (1977).

The four dissenting justices expressed the view that "when counsel and police have agreed defendant is not to be questioned until counsel is present and defendant has been advised not to talk and repeatedly has stated he will tell the whole story after he talks with counsel, the state should be required to make a stronger showing of intentional voluntary waiver than was made here."

The key issue here was that the counsel (who was already in place) and the police agreed that the suspect not be questioned. Let's say you're picked up off the street and arrested, and read your rights. There's nothing to stop the police from questioning you, and anything you say can and will be used against you in a court of law.

[Louweasel]

Thank you everyone for your input.

It is the same here about stopping questioning immediately (or more often never starting) if a lawyer is requested - what I was really getting at is can the lawyer stop the interview. Here, he can of course advise his client not to answer questions, but that doesn't stop the investigator from asking them. In fact, it's probably better in the long run to give the suspect every opportunity to explain his actions.

Of course I am aware that legal dramas aren't that realistsic, but there are different degrees. Of course you are going to speed up processes and not film hours of tedious legal argument, but there seemed to be fundamental differences which actually make changes to the plot, which couldn't happen here. In short, I was wondering if US tv producers are less bothered about realism than here (and our tv producers do of course veer off from absolute accuracy as well). A nice example of that is in a soap recently when someone was charged with nurder and just before their first court appearance (they were banged up over night) their solicitor was advising they'd never get bail, they were arguing and the solicitor sadi "well, if you're instructing me to make an application"... This is wrong in the UK as you have the right to bail and it is for the prosecution to apply to the court for it to be refused or for conditions to be placed upon it.

As for arrest and caution, their rights are similar to your miranda ones. The caustion is - "you do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." If you are worth your salt you will also ask them if they understand - if defence claims they didn't understand the caution then half your evidence can go to pot. They are then advised of their right to free and independent legal advice, to have someone informed of their arrest (this does not simply equal a phone call) and the right to consult the Police and Criminal Evidence Act Codes of Practice, which are the rules on their rights and treatment in custody.

Our laws about questioning immediately after arrest seem to be slightly different, looking at the precedent cited. They are rather complex. If they say anything after caution you can use it, but frankly you're only asking for trouble if you ask them questions, unless the circumstances are very particular, as it counts as an "interview" under said PACE Act, and should be done properly in custody, taped, with a solicitor present if they want, and so on and so forth.

[Dee EffEll]

The key issue here was that the counsel (who was already in place) and the police agreed that the suspect not be questioned. Let's say you're picked up off the street and arrested, and read your rights. There's nothing to stop the police from questioning you, and anything you say can and will be used against you in a court of law.

You can waive your right to remain silent after being informed of that right. However, once a person says "I want my laywer," that's the end of it, questioning *must stop*. Anything said after the police "try again" will be supressed under the exclusionary rule, as this is a violation of 6th amendment rights. You do not lose your ability to reassert your right to silence.

[AndrewH]

You can waive your right to remain silent after being informed of that right. However, once a person says "I want my laywer," that's the end of it, questioning *must stop*. Anything said after the police "try again" will be supressed under the exclusionary rule, as this is a violation of 6th amendment rights. You do not lose your ability to reassert your right to silence.

Can you cite a precedent for that? The one you gave before revolved around the police and lawyer agreeing not to question the suspect. I was under the impression that you can always waive your right to counsel.

PS- just curious, are you a lawyer? cuz im sure not, i'm just going on what i've read on the subject, which is quite a bit.

[Dee EffEll]

Can you cite a precedent for that? The one you gave before revolved around the police and lawyer agreeing not to question the suspect. I was under the impression that you can always waive your right to counsel.

PS- just curious, are you a lawyer? cuz im sure not, i'm just going on what i've read on the subject, which is quite a bit.

See also Edwards v. Arizona 451 US 477 (1981)

And yes. Texas, Alaska, and Washington state bars. Nothing herein is legal advice.

[AndrewH]

Well that case clears up the attorney issue pretty well. I'll have to keep it in mind should anything unfortunate happen to me.