Can a private person deceive a defendant to obtain evidence?

Question

In the 2019 movie "Badla" (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?

Answer 1

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 "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."

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&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.

Answer 2

united-states

The confession is inadmissible, as it is protected by attorney-client privilege. Although Nirmal was in fact not an attorney at all, the conversation would have been privileged if the man Naina was talking to had actually been Badal, as she reasonably believed him to be. As a result, it is privileged.

For such an analysis, it does not matter who Nirmal actually was, who he was or wasn't affiliated with, why he deceived Naina, or whether or not he committed a crime by doing so.

There is a discussion of such situations in the following article:

Grace M. Giesel, Upjohn Warnings, The Attorney-client Privilege, And Principles Of Lawyer Ethics: Achieving Harmony, 65 U. Miami L. Rev. 109 (2015). Available at this link

See Section IV.D.2 on page 140:

In addition to applying the honest-and-reasonable-belief analysis in the attorney-client privilege setting to the question of representational relationship, courts have also applied the analysis when the person consulted is not, in fact, a lawyer. The courts addressing this issue have stated that the privilege applies to a communication even if the person consulted is not admitted to any bar and has enjoyed no legal training. If the putative client honestly and reasonably believes that the person consulted is a lawyer, and if the other requirements of the privilege are satisfied, the privilege applies even though the person consulted is, in fact, not a lawyer.

See the article for citations of cases.

Somewhat on point is US v. Tyler, 745 F. Supp. 423 (W.D. Mich. 1990). The defendant, James Tyler, shared a cell with Melvin Deutsch, who said that he was a lawyer, had a law school diploma on the wall of his cell, and was addressed as "counselor" by other inmates; but in fact was not a lawyer. Correspondence between Tyler and Deutsch regarding Tyler's legal issues was held to be privileged and inadmissible.

Tyler was held to have had a reasonable belief that Deutsch was a lawyer, in spite of the facts that Deutsch had never been licensed to practice law in any jurisdiction, and that the law school listed on his "diploma" did not exist as of the date shown on it. Tyler evidently didn't check on either of those things, and the court did not seem to think that he reasonably should have.

Also, Tyler apparently did not know the seemingly obvious fact that a convicted felon cannot practice law, let alone while actually in prison. However, this was not felt by the court to be "ingenuous": "To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable."

In the case from the question, it sounds like Naina was much less gullible than Tyler, and that Nirmal put on a much more elaborate and effective deception than Deutsch did. So if Tyler's belief was reasonable, surely Naina's was as well.

The article also mentions that certain states make this principle explicit by statute. For instance, the Kentucky Rules of Evidence, Rule 503(a)(3):

"Lawyer" means a person authorized, or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation.

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Interestingly, evidence derived from the confession is probably still admissible; for instance, if the confession revealed the location of physical evidence which the police then went and retrieved. It appears that the "fruit of the poisonous tree" doctrine generally does not apply to evidence disclosed in violation of privilege, except in some cases where the government was actively involved in the violation and thus infringed constitutional rights. See:

Robert P. Mosteller, Admissibility of fruits of breached evidentiary privileges: The importance of adversarial fairness, party culpability, and fear of immunity. 81 Washington U. Law Quarterly 961-1016 (2003). Available at this link