The Low-down About Lawyering up.
For readers of UK-based crime procedurals, 'Lawyering Up' is a somewhat irritating Americanism. But unfortunately, 'Duty Solicitoring Up' doesn't have quite the same ring. However, that isn't the only difference between US-based procedurals and UK.
My partner and I are big fans of true crime documentaries, and one of the most bizarre things when watching US documentaries is how many suspects - even those under arrest for very serious crimes such as murder - don't have a lawyer when being interviewed. Just as in the UK, arrested suspects are read their rights. In the UK, the correct term is 'cautioned'. In the US, these rights - enshrined in the Constitution - are often referred to as 'Miranda' rights after the legal precedent that established them (hence the verb 'Mirandized'.) But unlike in the UK, these rights are often 'waived'.
I have no idea what our poor neighbours must think, as we yell "Shut up! Stop talking! Where's your lawyer?" at the TV.
It seems to be absolute madness. Why on Earth would anyone in their right mind forgo the services (free if you can't afford it) of the only professional in the room looking out for your best interests? The police are trying to secure a conviction, and all too often it seems, anyone will do. They aren't your friend!
Because of this, it is not uncommon for US police to appraise a suspect of their rights (as they are legally obliged to do) and then seek to persuade them not to exercise them. Phrases such as, "we can deal with this quickly now" or "if you get a lawyer, I can't help you" even "why do you need a lawyer, are you guilty of something?" are common.
In one documentary we watched, a young woman was accused of murdering her lover. She asked repeatedly for a lawyer. Her interrogators deflected the request several times. Eventually, she folded her arms and simply kept on repeating "Lawyer. Now." Sensible woman. However the police in the interview room, the talking heads, and the documentary voiceover artist, all used this as proof of her lack of cooperation and criticised it.
From a writer's perspective, the attraction is obvious. The wily detective can run verbal rings around the suspect, teasing the truth out of them, until they finally confess or condemn themselves by their words. A lawyer would just tell them to button it and 'no comment'.
But if you want to write a procedurally accurate UK-based procedural, forget what you've seen on US TV. There are a plethora of true crime documentaries featuring actual recordings of interviews. I heartily recommend Channel 4's 24 Hours in Police Custody. But steer clear of doing your research using 'recreations', no matter how good they claim to be.
Some key differences with the US:
In the UK, 'lawyer' might be used colloquially by the suspects, but the correct term is 'solicitor'. The word attorney is rarely, if ever, uttered on these shores.
All suspects (including those who haven't been formally arrested) are interviewed under caution. (See TuesdayTip#63 for the rules regarding how long an arrested suspect can be detained.
Detainees are entitled to a solicitor. If you don't have one, all police stations have access to a pool of free, independent duty solicitors, that can be called upon night or day.
These days, police officers rarely try to encourage a suspect to waive their right to a solicitor. In fact, police officers have been known to plead with a suspect to take the offer of a solicitor. There are several reasons for this:
Interviews are recorded. If a suspect is ultimately charged and it comes to court, then the defence team may try to use this as evidence that the interview wasn't properly conducted, and so seek to have any testimony dismissed.
Solicitors keep everything on the straight and narrow. This protects not only the suspect, but the prosecution also. The rules surrounding interviews are strict and if the police break them, the interview can be deemed inadmissible in court. Even with the best will in the world, officers can and do make mistakes: in pointing them out to protect their client, the solicitor is also safe-guarding the prosecution.
No solicitor looks bad to the jury. The jury will expect there to be a solicitor and will want to know why there isn't one present. Anyone who has watched Making a Murderer will be familiar with the infamous Brendan Dacey interview. In it Dacey (who is a minor, with learning difficulties) is interviewed at school with no lawyer or responsible adult present. It is toe-curling and even heart-breaking. One can debate whether or not he is guilty of the crime; but one thing is certain - he didn't get a fair trial.
But aren't No Comment interviews a bad thing?
The first thing that any good solicitor usually does is tell their client to sit tight and no comment. At first glance this can be seen as an impediment to justice. If you're not guilty, be as open as possible and let the police see they are barking up the wrong tree. If the suspect is guilty, then no commenting unquestionably makes it more difficult for the police to build their case, and draws out the whole process.
Nevertheless, the police are duty bound to ask the questions that they want answered. Even if the suspect starts an interview by stating that they will not be answering any questions, the police ask them anyway. Doubtless the repeated 'no comment' is frustrating for both parties. But by asking those questions, the police are fulfilling the essential principle that the accused must be given the chance to reply to any accusations. And of course the facial reactions and body language of the suspect can indicate if the detective is on the right track.
Is it good or bad for writers?
As with anything, it depends on your story. It could be argued that a US-based novel, where the writer has a narrative choice between their suspect having a lawyer or waiving their rights, is more flexible. But I have grown to love the constraints of UK procedure. In fact, a no comment interview can be very dramatic. Including a solicitor also introduces a third party into an interview scene, and whilst they generally don't interrupt proceedings, a couple of well-timed interjections can ramp up the dramatic tension.
What do you think of 'lawyering up'? Is it good or bad for a fictional story?
As always, feel free to comment here or on social media.
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Paul Gitsham is the writer of the DCI Warren Jones series.
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