Oh God, no!

[mandragora]

Just heard an interview with a couple of the actors (including Freema and Ben Daniels) on the forthcoming Law & Order UK on the Jonathan Ross Saturday morning show. I was thinking I might give this one a go until Freema said that the CPS (Crown Prosecution Service) lawyers in the programme are going to go out and about interviewing witnesses. Because that's what they do in the US version.

*headdesk*

*headdesks again. Violently*

It's a completely fucking separate legal system, where we do things oh so differently. To try and mirror it on the US series means that it will be about as accurate as Dick van Dyke's 'Cockney' accent in Mary Poppins.

And what makes it worse is that the head of the CPS seems to have had a brain fart as he suggested that this would be okay 'because in 5 years time CPS lawyers will interview witnesses'. No they fucking won't! Because that would mean that the CPS would have to recruit an enormous amount of extra lawyers (there's not enough time for the existing lawyers to do their job as it, without them having to go out to see witnesses all round the country) and there's no way that the CPS will get the extra budget in the largest economic downturn since WW2! I mean, as it is there was a time recently when the CPS (in London) literally ran out of paper because they'd run out of money to buy more. If they can't afford paper, they're not going to be able to afford to practically double in size.

Oh, and let's not even get into why it's so important for CPS lawyers to maintain a sense of detachment that the officers in the case - who see the victims and interview the witnesses - may lack. Prosecutor's code, anyone?

And then there's the health and safety implications. Police officers are taught self-defence and how to handle themselves in violent situations. Lawyers are not. Which means that half the time the CPS lawyer would have to take police officers along with them. What a waste of resources!

Yes, I suppose it's possible that there are at present high-level discussions going on at present between the CPS and Ministry of Justice about changing the way that the CPS works. But, the problem with the extra budget necessary to recruit more lawyers isn't going to go away any time soon.

Bugger! I had hopes that this would a good, watchable drama, as well, as it has a lot of actors I like.

Sigh.

Comments

[darthrami.livejournal.com]

What's hilarious (for given definitions of hilarious) is that that's not even how it's done in most of the US. NY is one of (if not the only; I just don't want to make that one statement, given that I don't know how ALL jurisdictions work) the only places in the US where the lawyers do that. In most places, it is the police (i.e. if you were to watch Homicide, that's not right on, but close enough).

[libitina]

IAWTC Only with more flaily hands.

[mandragora1.livejournal.com]

*g* Yes, exactly.

[mandragora1.livejournal.com]

But as Law & Order is set in NYC at least it's accurate as far as it goes.

I'm not surprised that elsewhere in the US the police interview the witnesses because I imagine that maintaining some distance between prosecutor and vistims/witnesses is generally considered to be A Good Thing.

But yeah, makes me think even more that the CPS head was definitely talking out of his arse. *g*

[katemonkey.livejournal.com]

Oh, I knew it'd be absolutely horrible, but in that way that is endlessly entertaining. It certainly wouldn't be the sheer heroin that early Law & Order is, but watered-down methadone, like recent Law & Order.

So now I definitely have to watch it. For cracky delight.

[mandragora1.livejournal.com]

Well, you know it is is endlessly entertaining that will be a plus. But I was hoping for a well-written drama with a modicum of accuracy. I write 'modicum' because I realise that to keep the story zipping along you have to take a fair amount of licence with legal procedure and how things are actually done.

But a modicum would have been nice...

*sighs wistfully*

[liresius.livejournal.com]

Very disappointing!

[mandragora1.livejournal.com]

Sums it up, really.

[sparkindarkness.livejournal.com]

This? is why I never ever ever ever watch legal dramas. The pain hurts too much

Oh and because beloved throws things at me when I shout at the television

[mandragora1.livejournal.com]

*g* Yes, I'm right there with you in the yelling at the telly stakes.

Beloved is cruel and obviously unable to appreciate the depths of our pain!

[elistaire.livejournal.com]

It's pretty much a truism that no one should watch a tv show for the career field they are in. TV is not reality. And even so, it's all really about relationships between characters, no matter their jobs.

[mandragora1.livejournal.com]

Oh, it's not like I ever expected them to get everything right. Dramatic licence is normally necessary to keep the plot moving along and I would never expect a legal based drama to be completely accurate.

But making at least some effort to portray how things are actually, you know, done would have been nice.

And there actually is a long-running British based police/legal TV series that has striven from the beginning to be as accurate as possible within the dramatic medium and has succeeded in that. It's called The Bill and remains extremely popular not just with the general public but also with people who work in law enforcement.

Which proves that it is possible to produce a dramatically satisfying and reasonably accurate series that won't send people who know what it's really like running for the hills.

[treewishes.livejournal.com]

Ooh, but in 5 years, everyone will have watched this show for EVER and it will seem perfectly reasonable to change the system.

(Sort of like putting black presidents on so many TV shows that it became okay to have one IRL....)

[mandragora1.livejournal.com]

Trust me, in 5 years CPS lawyers won't be running around interviewing witnesses. Because it's a bad idea! Whereas having a black president is clearly an excellent idea.

[keletkezes.livejournal.com]

And there aren't a million of him...

[harriet-spy.livejournal.com]

I'm puzzled, though--surely the CPS must talk to witnesses (including victims) at some point? How else would they prepare for trial?

On the U.S. version, you don't (or didn't in the old days; I probably have the first six or seven seasons memorized, but haven't watched for a while) see DA investigations as a major part of the show. The cops do most of the footwork. DAs running around independently investigating is about a once-every-four-eps twist when the cops' case breaks down in a particular way. So I would be surprised if it was a huge element of the show that you had to really accept to enjoy it at all. If you think you might otherwise like it, you could still give it a shot.

[mandragora1.livejournal.com]

surely the CPS must talk to witnesses (including victims) at some point?

Actually, no they don't. They prepare for trial by reading witness statements and perusing the evidence. They will also listen to taped interviews, or watch them if the interviews were also video-taped. For example, it's standard practice to film victims in child abuse cases.

There has been a limited trial undertaken (I think it was less than 100 cases) where CPS lawyers have been allowed to interview witnesses pre-trial. Unsurprisingly, the lawyers commented how little time they have to do, the lack of appropriate interview facilities, and the police have to often spend time escorting the witnesses.

Other concerns are that the CPS might be accused of 'coaching' the witness - see Kay's comment below as to how it might go. *g*

Even if some (limited) pre-trial interviews are allowed in future the CPS won't be running around town independently investigating. It's pretty difficult to do when you're spending 4 out of 5 days a week in court and spending your sole day in the office desperately catching up on paperwork, preparing your cases, deciding whether to proceed etc. That old resources problem again.

Which is why the decision that seems to have been taken to have the CPS lawyers in Law & Order UK to do this is just... Wrong.

I will give the first episode a go, but I know there's going to be a fair amount of wincing going on.

[harriet-spy.livejournal.com]

Actually, no they don't. They prepare for trial by reading witness
statements and perusing the evidence.

Wow. In the U.S., that would (probably) be malpractice. Even on the civil side, I can't imagine going in to examine even a friendly witness based only on a statement taken by someone else. (And in terms of coaching, all it does is push it back to the police to do it.) That's very interesting.

Anyway, I'm just saying, it's not a huge element of the U.S. show, so if they really are following the U.S. model, it might not be enough of an element to bring the show down for you. After all, the "order" side has to fill up its half of the show, too!

[mandragora1.livejournal.com]

Ah, in civil cases the lawyers for each side do interview the witnesses. The norm in civil trials is for the served witness statements to stand as evidence in chief and for the witness to be cross-examined by the other side on the contents of their statement, so the preparation of witness statements is very important and is done by lawyers.

And in criminal cases the defence lawyers interview and take statements from the witnesses for the benefit of the defence trial counsel. However, the defence do not serve statements from their witnesses on the prosecution - they are for the use of the defence alone, whereas the prosecution must serve written witness statements or tapes of interviews of all prosecution witnesses that they intend to call on the defence. More, if they interview witnesses they intend not to call that will be disclosed in the 'unused evidence'.

The reason for the differing approaches is that civil litigation is voluntary and there is meant to be equality of arms (obviously in practice that isn't always the case) whereas in criminal cases you have all the resources of the state versus the defendant. That's why there is a strict Code for Crown Prosecutors and why the prosecution have to jump through hoops that the defence doesn't.

Oh, and on the coaching front, yes, it is sometimes alleged that officers have coached the witness but, again, there are rules that are meant to minimise this possibility.

[harriet-spy.livejournal.com]

Well, I was referring to the civil side because that is where the vast majority of my experience is. Even there, where you might think a friendly witness would tell you all you wanted to know when you ask, I have rarely seen a lawyer's interview with a witness where something at least potentially significant and previously not mentioned to counsel (or misunderstood by us before) didn't come up. Different systems, different values, different safeguards in place I'm sure, but I must admit that I don't understand how you could possibly satisfy yourself that you had a thorough understanding of a crime based on statements somebody else took and the physical evidence. If nothing else--and there is a lot else--you would be severely handicapped in assessing the credibility of witnesses you had never seen or spoken to. Here it's actually considered an important check, in theory if not always in practice, that prosecutors, who work with but not for the police, talk to the witnesses before trial.

In the U.S., speaking generally, a prosecutor has an independent ethical responsibility not to put into evidence testimony he or she knows to be false. I would be very uncomfortable putting anyone on the stand I had never spoken to on that basis alone.

Oh, and on the coaching front, yes, it is sometimes alleged that officers have coached the witness but, again, there are rules that are meant to minimise this possibility.

You can't seriously think this doesn't happen to some degree on a fairly regular basis. Nothing against your police in particular--it happens here, it happens everywhere!

(And not everything one might think of as "coaching" is bad. I was just watching a big Mafia trial taking place in my district. The witness was talking for hours on end about events ten years prior. I'm not sure how one would hope to get coherent testimony of that extent and in that detail without serious preparation beforehand...)

[mandragora1.livejournal.com]

In civil cases it is permissable for trial counsel to meet their lay client's witnesses in advance of trial, but there are rules as to when they should do so - for example normally the instructing solicitor should be present, the meeting should take place after the witness statement has been settled and coaching is specifically prohibited, although witness familiarisation with what is likely to happen (court procedure etc) is not only not forbidden but is recommended. That applies to witnesses, it is of course permissable to meet the lay client much earlier in order to provide advice.

In criminal cases witness credibility can be a problem, as the lawyers are dependent on the officer's assessment. However, experienced officers should be able to provide an assessment. Defence counsel is dependent on the solicitor's assessment, but as fellow lawyers their assessment should be able to be relied upon. And of course defence counsel will meet - and advise - the lay client at an early stage but in the presence of their instructing solicitors.

Prosecutors cannot of course put in evidence testimony that they know to be false but are not likely to be criticised personally if it becomes apparent during their evidence that the witness will not come up to proof.

On the coaching front, so far as lawyers are concerned we are specifically prohibted from coaching. I'm sure the police sometimes do coach but if it's apparent that is what has happened the judge will warn the jury accordingly.

As you say, different systems, different rules. But perhaps you can understand now my indignation that Law & Order UK is going to present something as normal legal practice here when it simply isn't the case.

[harriet-spy.livejournal.com]

I got that from the first, and do indeed sympathize! Tangentially, though, I didn't realize that the CPS never speaks to the witnesses before trial (as opposed to just not doing the footwork of the investigation, which I already knew) and I must admit that I am troubled by this. Most of your objection seems to be that the CPS doesn't have the resources, which is of course highly persuasive as to why L&O UK is and will remain unrealistic, but does not strike me as that strong a defense of the practice itself.

Anyway, you learn something new every day...

[mandragora1.livejournal.com]

I'm not opposed in principle to the CPS interviewing witness pre-trial in appropriate cases, such as ones that turn primarily on witness testimony in order to ascertain credibility, and provided that appropriate safeguards are in place. This could be in the public interest and save tax payer money in hopeless cases.

Most of my objection as you've ascertained *wry smile* is that it isn't the practice now and isn't likely to be the practice without more money. Fat chance - the court system itself is facing £100 million deficit, the Legal Services Commission (which funds all Crown Court cases and some Magistrates Court cases, plus some civil cases) has run out of money and the budget for all of these as well as the CPS comes from the same pool of money. All this before the downturn.

The only way more money is going to be found is to increase the number and amount of confiscations post conviction and civil recovery cases (cases which pursue the proceeds of crime through the civil courts to the civil burden of proof). The judiciary are already expressing their misgivings over confiscations because they set the amount to be confiscated but know that the courts' funding is partially dependent on this money. So money is a real problem at present, although confiscations, cash seizures and forfeitures and civil recovery are on the increase.

Cash seizures are where someone is found with more than £1,000 cash that they can't account for. These seizures can run into several million when searching a drugs supplier's house for example (and if you've got, say £3 million cash in a room of your house you're really not going to be able to account for it from legitimate sources). Again, this money is used for the public good.

I believe that the US has similar confiscation, cash seizure and civil recovery regimes (although called by different names in some cases, obviously).

[kay-taylor.livejournal.com]

Again, this money is used for the public good the police to have a damn good piss-up.

Fixed that for you! *g*

[mandragora1.livejournal.com]

What was I thinking? Thanks for the correction - very helpful. Although, it's not just the police...

[kay-taylor.livejournal.com]

HAHAHAHAHAHAHA WHUT.

It'd make for some hilarious cross-examination, at least. "Did the nice CPS lady tell you to say that?"

I'm still LOLing at Keir Starmer in general, though. He seems to mean well, buuuuuuut...

[mandragora1.livejournal.com]

"Did the nice CPS lady tell you to say that?"

*g* Well, yeah. There has recently been a trial done of the CPS interviewing prosecution witnesses pre-trial. And guess what - the CPS lawyers made precisely my point about barely being able to cope as is and not having enough time to do it. There was also a concern about the accusation of witness coaching.

Oh, it wasn't Keir. Think it was actually the head of the CPS, as opposed to the DPP. You know, the bloke who runs the CPS day to day whilst Keir does, er, whatever. C'mon, I've enjoyed his speeches! *g*

[kay-taylor.livejournal.com]

Yeah, I think it's pretty much unworkable given current resources and also the concern of coaching. I prosecute maybe 25% of the time now (my, how times have changed!) and I find it difficult enough making time to see the witnesses before trial AND balancing the meet-and-greet with my professional duties re coaching/rehearsing. I just couldn't see how the CPS would manage it, or how they would WANT to manage it. What exactly would be "better" about it, anyway? (maybe fewer witness statements in unreadable police-ese, maybe?)

Shut uuuuuuup, I love Keir's "blue-skies" thinking. Reach for the stars! 24/7 court TV! Let's go!

[mandragora1.livejournal.com]

maybe fewer witness statements in unreadable police-ese, maybe?

Exactly! Proper grammar and punctuation, even.

And, let's go indeed. To the stars and beyond!

[kay-taylor.livejournal.com]

Although I have a sneaky love for police-speak. My favourites are "assaultively resistent" (Trans: started having a right ruck with the arresting officers) and "officer safety zone" (Trans: waaaaaaaay too close for comfort!).