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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?

Paŭlo Ebermann
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KeizerHarm
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  • @NateEldredge I think if the attorney discloses information to the court that he got during an interview with the suspect, that would be admissible, whether its disclosure was good or bad for the suspect. – PMF Feb 26 '23 at 19:49
  • @PMF: Really? I'm pretty sure that attorney-client privilege can only be waived by the client. Even if the attorney chooses to disclose it (which is unethical), it's still inadmissible unless the client consents. https://www.nolo.com/legal-encyclopedia/attorney-client-privilege.html: "In that sense, the privilege is the client's, not the lawyer's—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot." Unless UK is different from US here? – Nate Eldredge Feb 26 '23 at 21:09
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    Is the movie name in the first sentence a typo? – Paŭlo Ebermann Feb 27 '23 at 00:05
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    @PaŭloEbermann it is not. And neither is the lawyer's name. I was confused too. https://en.wikipedia.org/wiki/Badla_(2019_film) – KeizerHarm Feb 27 '23 at 00:05
  • @NateEldredge I'm not a lawyer, so I don't know. But it probably depends, but if the attorney thinks it is a good strategy to tell the court that yes, the defendant in fact committed the crime but he was (by some unknown other guy) forced to do it, then that would typically be admissible. Such a strategy (blaming somebody else) can help the defendant to get a weaker punishment, as opposed to denying everything. – PMF Feb 27 '23 at 08:23
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    Why don't more people do this? Because we're not in a movie and attempting something like this may get you beaten up but is unlikely to work. – DonQuiKong Feb 27 '23 at 09:34
  • @DonQuiKong A three-hour dramatic conversation with an eccentric lawyer is movie magic; a more realistic example (yet following the same idea) would be more like phishing or social engineering. Even if a confession on the same day isn't exactly realistic, I was curious why this kind of thing isn't being attempted all the time. There's plenty of stories of people who themselves go and murder someone who they are convinced has killed their beloved. – KeizerHarm Feb 27 '23 at 09:56
  • @PMF If a lawyer broke attorney-client privilege, they would likely be disbarred and forbidden from practicing law ever again. The case would be a mistrial, and would have to start from scratch, if things weren't too badly botched or stained to effect the next trial. In the case of it being a 'good strategy', the lawyer would need to have the client's permission to admit guilt. – Michael Richardson Feb 27 '23 at 15:19
  • @KeizerHarm well, afaik more people are and to successfully murder someone than to successfully socially engineer someone on that level. – DonQuiKong Feb 27 '23 at 20:30
  • Can't you just post this without the spoilers? The movie is incidental to your question and you can explain it with "I saw a movie" and then changing it a tiny bit, so that you don't inadvertently spoil a movie for everyone who will ever read this question in the future. – terdon Feb 27 '23 at 22:55
  • Which jurisdiction(s) are you thinking of? – Robbie Goodwin Feb 27 '23 at 23:53
  • @RobbieGoodwin as stated, the trial is in London. The location of the murder was not specified. – KeizerHarm Feb 28 '23 at 07:59
  • Where does this come from? Are you suggesting that private citizens are constrained as Police people and other state agents are not, or what?

    Can you step back and explain how your premise would not rule out every police 'sting' there's ever been?

    Impersonating a lawyer might otherwise be a crime, but not in these circumstances.

     – Robbie Goodwin Mar 01 '23 at 00:49

2 Answers2

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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.

KeizerHarm
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Dale M
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    Were the prisoners hoping to be rewarded with leniency, or were they just chatty? – Solomon Ucko Feb 27 '23 at 05:28
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    @SolomonUcko they were just idiots. The criminal justice system is stacked against the stupid. – Dale M Feb 27 '23 at 06:01
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    probably just chatty @SolomonUcko . Criminals love to brag, too, about their exploits. – jwenting Feb 27 '23 at 07:29
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    @DaleM Yeah... its funny: The stupid keep trying to lobby to change that... and it consistently proves remarkably ineffective. As a for-instance, I'm told they organized a protest last year at the President's residence. The Pennsylvania police spent close to 4 hours explaining how White Castle and the White House were different places. – NerdyDeeds Feb 27 '23 at 13:54
  • “fruit of the poisonous tree”? wth is that? – zrajm Feb 27 '23 at 23:33
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    @zrajm: See https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree. – ruakh Feb 28 '23 at 01:43
  • Terribly poor therapist that would use therapy to coerce confessions. How does the UK health boards allow that. I would for sure lay a complaint at the medical governing body in the UK if that were to happen to me. – Neil Meyer Feb 28 '23 at 17:12
  • @NeilMeyer "Psychologist" and "therapist" are not synonyms. The role of a psychologist in a remand prison might be, for example, to establish whether a defendant has the mental competence to stand trial. That may even be an explicitly adversarial role, where the psychologist is there to represent the court's interests and not the defendant's interests, e.g. if the court wants to determine whether a defendant really lacks mental capacity or is only pretending. – kaya3 Feb 28 '23 at 17:31
  • Medical Practitioners are in the service of patients not courts. – Neil Meyer Feb 28 '23 at 18:17
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    @NeilMeyer your medical practitioner is. These are specifically and obviously the state’s medical practitioner. – Dale M Feb 28 '23 at 20:41
  • How is admission of the confession at the discretion of the Court? My belief is that courts are compelled to abide by strict rules which do include what is or is not admissible.

    How am I wrong?

     – Robbie Goodwin Mar 01 '23 at 00:52
  • @RobbieGoodwin they are. But you should read the rules because they say, this is in, that’s out, these are at the judge’s discretion – Dale M Mar 01 '23 at 10:28
  • Thanks Dale, and that's to assume that this isn't a clear-cut case of 'this is in, that’s out'. Others might and I happen to see either that only the judge's discretion is relevant here, nor that what decision the judge reaches is at all as important as how that decision is made. – Robbie Goodwin Mar 01 '23 at 15:33
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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.

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

Nate Eldredge
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    Very interesting perspective, thank you! Following this the confession itself would not be admissible, but I would also expect that the information from the confession (e.g. the location of the body) would not be ignored by the prosecution. – KeizerHarm Feb 26 '23 at 23:02
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    "To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable." Indeed, the whole rationale for attorney licensing is that there is much of the law that lay people may be presumed to not know. – EvilSnack Feb 27 '23 at 19:17
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    In the US, attorney-client privilege is derived from the constitutional right to counsel; not allowing people to consult with their lawyers would impair the degree to which they can be represented, and this applies equally to putative but not actual attorney-client relationships. – Acccumulation Feb 28 '23 at 00:25
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    This is great and all, but US law is irrelevant in the UK. – RonJohn Feb 28 '23 at 15:15
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    @RonJohn US law is largely modelled after UK law, so it's not entirely irrelevant, even though it may differ in this case. It is potentially useful to other people who might ask similar questions to see how it varies by jurisdiction. Really, though, what would be most relevant would be either the law in India, since that's the target audience of the film, or Spain, since it is a remake of a Spanish film. – Darrel Hoffman Feb 28 '23 at 15:44
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    @RonJohn: Correct. But the general practice on this site is to allow answers that are about a different jurisdiction that was asked, if they are clearly identified as such (I put the tag on the first line). – Nate Eldredge Feb 28 '23 at 20:14
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    @DarrelHoffman It is an Indian-made film but the setting is unambiguously England, and all parties involved are English citizens who committed their deeds on English soil. I personally do appreciate hearing of the US legal answer as well. – KeizerHarm Mar 01 '23 at 22:19
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    @KeizerHarm True, but it would hardly be the first film made in one country to misrepresent the law in another country to appeal to its target audience. I imagine Indian law is fairly similar to the UK for the same reason as in the US, but it would be interesting to see where it stands on the matter, as we already know that US and UK differ on this point. No idea about Spain. – Darrel Hoffman Mar 02 '23 at 14:24