How the Timing of Police Evidence Disclosure Impacts Custodial Legal Advice

Abstract

Presently, the police in England and Wales disclose their evidence at different points during the arrest and detention of a suspect. While the courts have not objected to this, past field research suggests that lawyers can only advise their clients accurately when the police disclose their evidence before the police interview. To examine this from a law -psychology perspective, we recruited 100 criminal defence lawyers to participate in an online study.Lawyers read fictional scenarios and provided custodial legal advice to a hypothetical client (Christopher) when given either pre-interview disclosure or disclosure at various points during the police interview (early, gradually, or late). Lawyers given pre-interview disclosure provided considerably more informed legal advice compared to those who were only provided with disclosure during the hypothetical police interview. Using an interdisciplinary approach, this paper provides further evidence that pre-interview disclosure is essential for lawyers to deliver case-specific legal advice to suspects.

Strategic disclosure of evidence: Perspectives from psychology and law.

“…Silence can serve as a negotiation tool to evoke some disclosure from the police (Blackstock, Cape, Hodgson, Ogorodova, & Spronken, 2014). For example, a recent study explored the advice lawyers would give to their clients before and during the police interview (Sukumar et al, 2016). Criminal defense lawyers read scenarios in which a suspect was arrested for burglary and the police either presented all of their evidence before the interview or at various points during the interview.…”

“…Some psychologists claim, for instance, that suspects might find it fairer to offer their side of the story first before being presented with the evidence (Sellers & Kebbell, 2009). Meanwhile lawyers argue that when the police strategically disclose evidence, suspects feel ambushed with the evidence and consequently find the interview more stressful (Sukumar et al, 2016). The question of how suspects regard strategic evidence disclosure would benefit from field research with police interviewers and suspects because it may not be possible to recreate the high stakes of a police interview, one that involves the strategic disclosure of evidence, in the laboratory.…”

“…Even if the client has a genuine account of what happened, the lawyer confronted with an information deficit may not be able to determine whether or not it is a strong enough defense. Lawyers need to know what evidence the police hold if they are to advise a suspect effectively (Sukumar, Hodgson, & Wade, 2016).…”

“…Accordingly, some legal scholars suggest that strategic disclosure is a form of passive deception (Sanders et al, 2010). Indeed, lawyers report concerns that strategic evidence disclosure can throw clients off balance and lead them to make inconsistent statements during the police interview (Sukumar et al, 2016). Contrast these claims to the body of psychology research showing that liars tend to be more inconsistent with the evidence when it is strategically presented (Hartwig et al, 2014).…”