All entries for Tuesday 29 March 2011
March 29, 2011
Do criminal defence lawyers ensure the protection of the innocent and the proper functioning of the legal process, whilst also keeping a check on the investigation authorities? Or do they protect criminals and place obstacles in the path of truth and justice?
As the EU begins to look at legislating the right of suspects and accused persons to have access to legal advice (measure C in the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings) it is interesting to reflect on the portrayal of criminal defence lawyers in TV dramas. The connection? Apart from the interest in representations of law and legal process in popular culture, it provides a different insight into comparative portrayals of the defence role across different legal procedures.
Dramas such as the excellent American TV series "The Wire" or the equally compelling French series "Spiral" (Engrenages), portray criminal lawyers in a poor light, often identifying them with their clients - the drug dealers and murderers who the police, prosecutors and juges d'instruction battle to bring to justice. Perhaps this is unsurprising, as the profession itself does the same - often seeing commercial lawyers acting for huge multinationals as having more status than criminal lawyers who represent those (mostly indigent) persons accused of criminal offences.
These TV dramas are set within two very different systems of criminal justice. The American system is adversarial, premised upon the belief that two equal and opposing parties arguing for each side is the most effective way of discovering all the relevant information and so the truth. The defence is half of the case and so crucial. Without it, the trial court is deprived of relevant material on which it can properly base its decision. The French process is more inquisitorial. Rather than the gladiatorial idea of two opposing parties, it favours a centralised judicial authority, charged with investigating the truth. The defence role complements, rather than opposes directly this function. The role assigned to the defence lawyer in these two procedures is very different. In one, she is expected to engage vigorously on behalf of the accused at every stage in the process; in the other, her role is ultimately subordinate to the primary (neutral) evidence gathering role of the magistrat or judicial officer.
But there is also a wider defence function. In both types of criminal procedure, the role of the lawyer is not only important in presenting the accused's case, but also in ensuring the integrity of the process. This might be making sure that detention times are not exceeded, or that suspects are questioned in proper conditions. This protects not only the suspect, but also the proper functioning of the system - ensuring that evidence produced is reliable. Furthermore, research has shown that the pre-trial investigation is dominated by the police in inquisitorial as well as adversarial procedures. Judicial supervision is distant and bureaucratic and it is only in a tiny minority of cases (around 4% in France) that a judge is even expected to play a more proactive role. This underlines further the importance of the defence function in ensuring a full and wide ranging investigation, as well as representing the accused at trial.
However, despite the importance of the defence function, research has shown that, even in procedures where the defence role is properly adversarial, such as the USA and England and Wales, the primary problem with defence representation is that it is insufficiently adversarial, often leaving the interests of the accused inadequately protected. This is often through a lack of resources, but also through a lack of professional ideological commitment to the criminal defence role.
In stark contrast to this, portrayals of lawyers in popular TV series such as 'The Wire' and 'Spiral' are as overly adversarial, corrupt and ready to ensure the defendant's acquittal at all costs. If there is such antipathy to the defence role in a system where her role is properly adversarial (like the USA), then it is hardly surprising that it is cast in such negative terms in a country where, in theory, the defence acts as a form of counter-reflex to a centralised judicial enquiry.
But, given the empirical realities of European pre-trial procedures and the importance of the defence role in protecting the rights of the accused and in ensuring the proper functioning of the system, we need to move away from the 'lawyer as bad guy' mentality. After all, it is a result of the determined efforts of lawyers (not police or prosecution) that miscarriages of justice have been brought to light.
In the coming months the European Union (EU) directive will need to go beyond procedural differences, and set out a core defence function that applies to all 27 Member States - whether their legal tradition is more adversarial, inquisitorial or post-communist. This proved impossible the last time around. States could not agree on the proposed Framework Decision that set out, amongst other things, a right for suspects in all Member States to have access to legal advice whilst detained and questioned by the police. That was back in 2004, under an EU structure that required unanimous voting. Much has changed since then. Post the Lisbon Treaty, qualified majority voting (not unanimity) is required and rather than trying to agree on several safeguards in one measure, the Roadmap sets out five key safeguards to be agreed one at a time. There should also be less room for disagreement now that the European Court of Human Rights has set out the importance of effective custodial legal advice as a crucial part of the accused's right to a fair trial under Art 6 (3) (c) of the European Convention on Human Rights in the case of Salduz v Turkey. This decision has had an impact across a number of jurisdictions and has set a new benchmark for custodial legal advice - where lawyers are key criminal justice players, not 'bad guys'.