Can a private person deceive a defendant to obtain evidence? In the 2019 movie &quot;Badla&quot; (spoilers ahead), Naina was accused of committing a murder in the UK, and her trial is in London. She denies the accusation. Her clever lawyer Badal arrives and they have a three hour conversation going over all the details of the past events, coming up with different theories about the real culprit - and throughout it, Badal slowly gains her trust. He eventually manages to get Naina to confess that yes, she did in fact commit the murder. Including how she did it and where she hid the body. Badal leaves the scene and five minutes later the real Badal arrives! The fake Badal was actually Nirmal, the father of the murder victim, who of course recorded the whole conversation including the confession. He calls the police, and the credits roll. It's a compelling movie but this struck me. Nirmal was deceiving Naina by impersonating a lawyer, which is a crime. But he had nothing to lose, he wanted to get justice for his dead son. And because he is not a police officer or official part of the prosecution in any way, this evidence wouldn't be inadmissible for being bad police practise, I would think (this question says that the police cannot impersonate a lawyer to gain evidence, but Nirmal is not police). But if such a confession would be admissible in court, then why don't more people pretend to be lawyers, or generally do illegal stuff like deception to obtain evidence?
england-and-wales Admission of the confession is at the discretion of the court PACE s78 gives the court the discretion to decide on the admissibility of confessions obtained if it appears to the court that &quot;having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.&quot; There is deliberately no case law guidance on this. Superior courts in the UK have been scrupulous in saying that each case turns on its merits. The “circumstances in which the evidence was obtained” are certainly suss and would not be permitted by a police officer who is required to warn the suspect and advise them of their right to silence. However, that is not sufficient to exclude the evidence. The court also needs to consider whether it would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the confession is the only evidence then admitting it would clearly be unfair. However, if the Crown has mountains of other evidence, then the confession may only have a small probative value. There is no “fruit of the poisonous tree” doctrine in the UK Far more likely is that the Crown would not even seek to introduce the confession. It would just slow the trial and give the defence grounds for an appeal. Instead, they would use the confession to inform their investigation and get other evidence to convict. Legal privilege In England and Wales, legal advice privilege only applies where there is a lawyer present. If Badal is a lawyer, then the privilege attaches; if he isn’t then it doesn’t, irrespective of what he led Naina to believe. The same would be true even if Badal believed he was a lawyer but, for some reason, was not licenced in E&amp;W. Litigation privilege is a broader concept and covers all advice, including from non-lawyers, where litigation (including criminal prosecution) has commenced or is reasonably likely. Based on the description, Naina has been committed to stand trial so everything she said is covered by privilege and is inadmissible. Why bother doing this? Most criminals are not sophisticated and will often implicate themselves if you give them enough space without the police or others violating any rules. Anecdotally, I have a relative who was a psychologist for a remand prison - prisoners charged but not yet tried. At the start of every meeting with a prisoner they would say “I work for the state, nothing you say is confidential and it can be used against you” - they still had prisoners confess to crimes they weren’t charged with, name accomplices, and tell where the loot was hidden.
This is a question of civil procedure more so than law. The customs and practices of civil procedure are established by legal precedent, not laws made by legislatures. In general, a witness can answer a question however they want as long as it is responsive to the question. Litigators will attempt to bully a witness into certain types of answers, but this is not "illegal" nor is it "illegal" for witnesses to craft their answers as they like. As for yes-no bullying there are two general cases: (1) The question is factual. If the questioner asks a purely factual question, like "Did you go to the factory on that Tuesday?" then a yes-no answer can be compelled. If the witness tries to explain why he went to the factory, or something, then he can be cut off, because he is being unresponsive. (2) The question is hypothetical. If the question is hypothetical or suppositional, then the witness can reject the question. For example, if the question, "You told your boss that you hated your wife, isn't that right?" In this case the witness can answer, "I reject the question, the prosecutor is putting words in my mouth." or can say "I resent the implication." or "That does not accurately reflect what happened." or whatever. Any time a question "paints a picture" or establishes something hypothetical and simply asks the witness to agree with the fantasy scenario, the witness can refuse to answer, or can answer with a counter scenario which they consider to be more accurate. I would add that in case (2) where a questioner tries to paint a false scenario, it is a risky move, because it opens the door for the witness to say whatever they want. For example, imagine this exchange in the courtroom: Prosecutor: "You told your boss that you hate your wife, isn't that right?" Witness: "What actually happened is..." Prosecutor: "That is a yes or no question, answer yes or no." Witness (to judge): "Your honor, the question mischaracterizes the conversation I had with my boss, I want to explain what actually was said." Judge: "The witness may proceed with his answer." Prosecutor: "I withdraw the question." Defender: "The prosecution has opened the door, let the witness answer." Judge: "The witness will answer the question." So, now the witness has permission to answer however he likes, and the prosecutor has blundered by making a vague question that created the situation where that was possible. The main thing a witness has to do is not try to say irrelevant things or try to add information beyond what was asked for, in that case the questioner can cut them off.
If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent?
Your appraisal is unjustly harsh, though not incomprehensible. A surprising number of lawyers are legally illiterate, in the same sense, even Supreme Court justices have to be told what the law is in a certain sense, and they often have to discover the law rather than recite it. Bear in mind that the typical education requirement for being a police officer is graduation from high school, and not a law degree. The educational requirements for the FBI are stiffer. They learn certain basics in a training course that lasts a few months, which covers everything. There is no law prohibiting a police officer from &quot;harassing&quot; a person who wants to film them. The line in the sand is that they cannot prevent a person from filming them. It would be interesting to know how many officers are actually unaware that they cannot force a person to stop filming. Also, the statement that they &quot;can't&quot; stop a person from filming them is a bit of an over-statement – they actually are capable of doing that, but what are the consequences? Given qualified-immunity, their own concern reduces to two issues: personal liability (getting sued) and department procedures manual (getting fired). It is invalid to infer ignorance from a particular pattern of behavior.
It might or it might not be fraud. The outcome will depend on how the facts and evidence are interpreted at trial. A more general version of this question is: If two parties discuss and orally agree to X; then sign a contract that states they agree to Y, what are the parties bound to? X? Y? Or something else? In your version, X is a fraudulent statement. And Y is an obfuscated writing. One party will argue fraud. The other will argue not fraud on the basis that all the facts were disclosed in writing. The party alleging fraud will carry the burden of proof. The standard of proof will be preponderance of evidence (more than 50%). Generally speaking, written evidence outweighs oral evidence if not accompanied by substantiating facts. Substantiating facts could be: emails or other written correspondence, a prior history or pattern of making false claims to others regarding this investment, the respective behavior of the parties after the agreement was made or anything else that corroborates the oral testimony presented at trial.
I'm not familiar with the lawsuit, but generally speaking, a court's finding that a lawyer falsified evidence would not directly result in the lawyer being disbarred, as the trial court does not have authority to regulate the practice of law. Instead, a court that reached that conclusion -- either by a verdict, or because a judge was persuaded by the evidence without reaching a verdict -- would likely report that outcome to whatever organization is responsible for licensing attorneys in that jurisdiction.
It's a bit like talking to the police: anything you say might be used against you, so the conventional wisdom is to say nothing. It is a good rule of thumb. When you are paying a professional to represent you, why make things complicated by speaking on your own behalf about the same issue? As you point out, not everyone follows this rule. In some circumstances there might be benefits to discussing your case publicly, such as fundraising or deterrence. Whether the risk outweighs the benefits will depend on the details of the legal case and your role in it. Lawyers are likely to emphasise the following risks: If you are a witness whose credibility is in issue, any public statement could potentially become a prior inconsistent statement which is used against you in cross-examination. Again, one of the purposes of hiring a lawyer is to be careful about how you communicate your position on a litigious matter and reduce the risk of careless remarks having unexpected consequences. Speaking publicly undermines this goal. In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to sub judice contempt of court. Attempting to litigate the case in the media can be perceived as undermining the authority of the court. Lawyers are expected to uphold public confidence in the administration of justice and would be reluctant to condone anything that could be regarded as a contempt. This contributes to a culture where discussing active litigation is &quot;not the done thing&quot; and may itself cause problems with a witness's perceived credibility, aside from the risk of a contempt allegation. Speaking publicly about litigation is risky and the consequences are difficult to predict, which is why people often engage lawyers to do it. When the client continues to make their own statements without legal advice, it makes the lawyer's risk management job more difficult, so they are likely to advise against it.
It is not entrapment because entrapment must be done by officers of the State (police usually). A member of the public inducing another to commit a crime is not entrapment and not a defense to having committed it. Entrapment is a "thing" in Ireland as it is in all common law jurisdictions, however, the specific limits on what police can and cannot do vary by jurisdiction. Police posing as underage children to catch pedophiles is legal throughout Australia (i.e., not entrapment). Police are more restricted in Canada and the USA but I believe that online "trawling" by police is legal in those jurisdictions too, however, they must remain more "passive" than Australian police. Yes, there is a crime being committed, the crime of attempting to engage in underage sex. It doesn't matter that the actual crime attempted is impossible to commit because the "victim" is not actually underage. Evidence is evidence – it doesn't matter who collects it. However, amateurs in the handling of evidence are more likely to botch it up in a way that would allow the defense to have it ruled inadmissible than professionals (although even they can botch it up).