criminal-law police legal-terms law-enforcement
What is it called when a suspect is questioned without their lawyer?
<p>To elaborate, I know it is illegal for authorities to question a suspect when their lawyer isn’t present. Is this a crime or just illegal? If it is a crime, what is it called?</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p><em>&quot;I know is it illegal for authorities to question a suspect when their lawyer isn’t present&quot;</em></p>
</blockquote>
<p>This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying &quot;Maybe I should talk to a lawyer&quot; (ie <a href="https://supreme.justia.com/cases/federal/us/512/452/" rel="nofollow noreferrer">Davis v. U.S. (512 U.S. 453 (1994)</a>) isn't enough, they have to say &quot;I want a lawyer&quot;. Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See <a href="https://en.wikipedia.org/wiki/Miranda_warning" rel="nofollow noreferrer">Miranda Rights</a>).</p>
<p>So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that.</p>
<p>With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly.</p>

<h1><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></h1>
<p><strong>I know it is illegal for authorities to question a suspect when their lawyer isn’t present.</strong></p>
<p>This is not really true, at least in England and Wales.</p>
<p>The right to free and independent legal advice (FILA) is defined by <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/58?timeline=false" rel="nofollow noreferrer">s.58 of the Police and Criminal Evidence Act 1984</a> (PACE), but it is not an absolute right. It may be <em>delayed</em> - but not totally denied - under certain circumstances such as when a senior police officer reasonable believes that a consultation with a solicitor may, inadvertently or otherwise, lead to interfering with evidence, causing harm to others, tipping off other not yet arrested suspects, or hindering the recovery of property.</p>
<p>Similar criteria also apply when an &quot;urgent interview&quot; is necessary to secure time-critical evidence.</p>
<p>Any prosection evidence obtained unfairly by significant or substantial breaches of PACE may be excluded following a defence application under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/78?timeline=false" rel="nofollow noreferrer">s.78 of PACE</a>.</p>
<p>One example of when access to a solicitor was unfairly denied is the investigation in to the <a href="https://en.m.wikipedia.org/wiki/Murder_of_Sian_O%27Callaghan" rel="nofollow noreferrer">murder of Sian Callaghan</a>.  In essence, the officer concerned did not have an &quot;urgent&quot; need to conduct an interview.</p>
<p><strong>If it is a crime, what is it called?</strong></p>
<p>Unfair denial to FILA is called a &quot;<em>Breach of PACE</em>&quot; which is not a crime in-and-of-itself although there is the possibility of, for example, <a href="https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard" rel="nofollow noreferrer">perverting the course of justice</a> or <a href="https://www.cps.gov.uk/legal-guidance/misconduct-public-office" rel="nofollow noreferrer">misconduct in a public office</a> offences.</p>

<p>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, at least, there isn't a special term to capture this.</p>
<p>If the suspect has requested a lawyer, but the police continue questioning, you could call that a &quot;<em>Miranda</em> violation,&quot; but tthat phrase could also refer to several other actions, such as failing to notify the suspect of his <em>Miranda</em> rights, or questioning him when he has not asked for a lawyer, but has invoked his right to remain silent.</p>

<p>In the United States, if someone who has requested a lawyer is questioned by police despite their desire not to do so, in violation of their <em>Miranda</em> rights under the 6th Amendment, this is a &quot;civil rights violation&quot;.</p>
<p>There are several remedies for this civil rights violation.</p>
<p>It can trigger the exclusionary rule to exclude any statement obtained in that fashion from being used at trial against the person questioned. This happens routinely.</p>
<p>It can be a basis for a lawsuit against the interrogating officer for money damages for violating a well established constitutional right. This would be in the form of a 1983 action if the official is a state or local officer, and in the form of a common law <em>Bivens</em> action is the official is a federal official. This would be quite rare.</p>
<p>It could, in theory, also be the basis for a federal criminal prosecution of the interrogating officer for intentionally violating civil rights, although this would be almost unheard of unless the practice was pervasive.</p>
<p>A civil rights violation such as this would also provide a valid basis for disciplining or even firing the law enforcement officers for good cause. This also almost never happens.</p>
