“You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed to you at no cost. Do you understand these rights as I have read them to you?” The American policemen, FBI, CIA and the Prosecutor’s Office employees often say these phrases in Hollywood movies. And if the main character is suspected of committing a crime, another, not less prominent Hollywood character enters, that is an attorney.
The attorney, business security practices projects’ manager of Juscutum JSC Alexandr Gorobets told Mind periodical about Hollywood myths and images present in the Ukrainian legislation.
Miranda warning and the telephone call during the arrest. Miranda warning is a legal requirement in the United States, according to which a detainee should be informed of his rights during detention, and a law enforcement officer detaining him is required to obtain a positive answer to the question, whether he has understood what he has been told.
Miranda warning appeared as a consequence of the legendary case of Miranda against Arizona and was named after the defendant, Ernesto Miranda, whose testimony was excluded from the case as obtained in violation of the Fifth Amendment. Miranda, however, was convicted on the grounds of other case materials.
This warning was introduced by the U.S. Supreme Court’s decision in 1966 to ensure the rights against self-incrimination (nemo tenetur se ipsum accusare). Since then, any information obtained from a detainee during interrogation before he has been read his rights cannot be considered as an admissible evidence, and many police officers bear this memo along with their badge, to read it aloud without mistakes if necessary.
In fact, in the United States there are no Federal laws to provide the arrested person the right to one phone call. Such laws are in force in some US States. For example, the Criminal Code of California stipulates as follows: “Section 851.5. (a) (1) Immediately upon arrest, except cases when it is physically impossible, and no later than three hours after arrest, an arrested person is entitled to make at least three completed phone calls…”.
However, California is the exception rather than the rule, and in other States upon the requirement of a phone call granted to the arrestee they might as well say: “That’s when you get arrested in California, then you will have your phone call”.
Our state of affairs is as follows: Articles 29 and 59 of the Constitution of Ukraine and Article 208 and 213 of the Criminal Procedure Code do not provide for the announcement of person’s rights at the moment of detention. These rights will be explained by an official of pre-trial investigative body in drawing up the protocol under the procedure stipulated by Art. 208 of the Criminal Procedure Code of Ukraine, and the term “to notify” relatives (family members) or the body authorized for provision of free legal assistance is much wider than a phone call. In addition, if the investigator deems it necessary, he would notify the relatives of the detainee on his own.
During search they turn everything upside down. In episode 12 of “Billions” movie’s 1 season you see a middle-aged man, stocky built, with a well-groomed beard and wearing an expensive suit, who with a broad smile stands in the middle of the ruined office room, with extended hands, palms up. That’s what a happy attorney Chuck Rhodes looks like after a very thorough search in the office of Bobby Axelrod’s company. The only thing that smartest almighty Bobby could do was just to watch the security services officers seize computers, open up walls and ceilings, and explore every inch of his luxurious office, that led at the end to a complete dismantling of all premises.
It has turned out, that it’s not a myth but a real thing that relates to us as well. Under Articles 233-235 of the Criminal Procedure Code of Ukraine, an investigator or a prosecutor are entitled to enter and search a house or other property only upon court’s order and in urgent cases even without such an order, but with a subsequent appeal to the investigating judge for approval. It is also true that sometimes, but very rarely, searches may be conducted with “full breaking-up”, when the decision is made right on the spot or it was ordered by authorities.
People involved in a search on a defense part may only register procedural violation and further in the court recover confiscated property and claim compensation.
An investigator, conflict of interests and model rules of professional conduct. American attorney Mickey Haller undertook to defend Louis Roulet, accused in the brutal beating and murder. During his legal position development the attorney uses the services of a private investigator, who collects necessary information in specialized databases. Subsequently, the need to respect the attorney-client privilege has become an obstacle for the appeal of the attorney to the police with a statement about the crime committed by Louis Roulet — it is a plot of the Hollywood film “The Lincoln Lawyer”.
Gradually our legislation has come to the conclusion that only an attorney can be the defender of an accused person at the hearing, who, in coordination with the client, develops legal position and collects evidence to prove the defendant’s innocence.
Ukrainian legislation has no such a notion as a “private investigator”, whose functions include collection and analysis of background information. However, the Law of Ukraine “On Advocacy and Legal Practice” includes the term “paralegal assistant”, who may successfully perform the analytical part of the work.
Conflict of interests and attorney-client privilege are not an empty sound.
The same stringent requirements to avoid a conflict of interests, and also guarantee attorney-client privilege’s observance are clearly stipulated in the above Law, and in “Model Rules of Professional Conduct”. So the story about the attorney from the above movie could easily happen in Ukraine.
Delivery of evidence to opposing party. In almost every season of “Suits” series Harvey Specter or Michael Ross hand over to a dazed opponent a paper folder with documents confirming the absolute victory of suits in the case. After that the opponent is only have to put up with the bitterness of defeat, beg for mercy or try to negotiate with the most successful lawyers in the world! It looks very impressive for sure, but is it true?
It should be noted that the Code of Laws of the United States of America, and the laws of individual States provide for the procedure of notifying the respondent on the time and place of the hearing, which is carried out by a bailiff or by mail with a claim attached. The same as in the Ukrainian legislation, the important issue is: is there any evidence of delivery of the claim with the attached materials to the respondent or his authorized representative or not? Some States provide for an absentee procedure for claims consideration.
Justice has its price. “A Civil Action” movie is based on real events and tells about the case “Anderson vs. Cryovac” that took place in Massachusetts, USA. In the film, Jan Schlichtmann, a successful lawyer in civil cases, engages in a very complicated task on behalf of the residents of a small town, who suffer from poisoning by toxic chemicals released by major enterprise into the pond nearby. In the end, the attorney remained loyal to his principles, but to win in this case he had spent years and all his savings.
Unfortunately, this case is not a myth that the same is true for Ukraine, where quite a lot of cases have the review period calculated in years. And the issue of financial resource to ensure the legal part of a violated right defense in the court is an item of expenditure in which a fixed cost rarely may be indicated in high-profile cases.
And this is despite the fact that in the criminal process all examinations, appointed at the initiative of the investigator, are publicly-funded, despite the operation of Free Legal Assistance Centers. The movie cover features right words: Justice has it’s price.