A call to podcast hosts and journalists to stop using constitutional rights as an ominous plot point
OPINION | The views expressed in this article are those of the author.
As a true crime podcast and documentary connoisseur by night, and a criminal defence lawyer by day, declaring that my world is saturated with true crime content is an understatement. I enjoy relaxing after a long day at work by binging The Jinx. I listen to true crime podcasts, like Dateline and Crime Junkie, on my long drives to court. Once I finish litigating, I hop back in my car to resume the latest episode with haste: Keith Morrison was about to reveal another mind-boggling plot twist in ‘The Thing About Pam’!
Say what you will about society’s overconsumption of true crime stories, but I have yet to come across a piece of work that excuses or minimizes the very real and brutal outcomes of true crime. Naysayers of Netflix’s Dahmer failed to see how the decision to humanize Dahmer’s victims and provide far more background to each victim’s real life compared to other re-tellings made Dahmer’s crimes (and the lack of police investigation) even more unimaginable. The audience was left spiraling in a vortex of real grief for every victim, only to be overcome by a shocking sense of injustice. Exactly what you’re meant to feel.
The human experience is so complex and relative that the fascination and consumption of true crime stories must be rooted in the endless search for answers as to how such travesties can happen in our families, communities and realities. The undercurrent of true crime media is steady and consistent: crime is bad, and those responsible must be held accountable. Everyone can agree on this truth.
Yet, true crime stories often emphasize a significant plot point in the re-telling of stories, used as a bookmark in the narrative to indicate that an accused must be guilty of or hiding something: and then the accused lawyered up.
In comes the lawyer
Time and time again, detectives, podcast hosts and seasoned journalists (even prosecutors at times), consistently reemphasize the myth that it is a significant set back in the investigation when an accused person, suspect or person of interest retains a lawyer and follows their lawyer’s advice. The right for every individual to speak to a lawyer and their decision to follow that professional’s advice is the pillar of every working democracy. However, the true crime space consistently repeats to the audience: exercising your right to counsel is very bad. Having the audacity to have a lawyer represent you in court is even worse.
Imagine for a moment you or a loved one has been terminated from a job. You consult with a lawyer. Does retaining that lawyer indicate with certainty that your employer was right to have dismissed you and you are entitled to nothing? Of course not. But the side-eyeing detectives and skeptical true-crime hosts cannot resist drawing the ultimate conclusion: retain a criminal defence lawyer and you must be guilty. What if the accused is just confused about the process and wants to know what happens next?
It’s easy to judge from the cozy cushion of your favourite detective armchair. But until you’re staring down the barrel of the state’s resources and police force focused solely on you, I can almost guarantee that you will be keen (and all of your loved ones would encourage you) to seek advice from a professional. And to follow that advice. People who are truly guilty exercise their constitutional right to speak to a lawyer, remain silent or even have a trial. And everyone else who also exercises those rights are not making an admission of guilt by doing so. Guy Paul Morin retained a lawyer and had a trial. Years later, after a grave injustice came to light, he was unequivocally and factually found to be innocent of 9-year-old Christine Jessop’s murder after DNA testing in 1995.
And then the accused goes quiet
Hand-in-hand with the right to speak to a lawyer is the right to remain silent. It is easy to see in some cases, when the evidence is so overwhelming against an accused, that a confession would be the right thing to do (ahem, Ted Bundy). However, we must remember that being responsible for a tragic outcome and the specific liabilities attached to each act are two different things.
Like a surgeon preparing to operate, cutting vein A before you cut vein B can lead to a different outcome, however slight, than performing the incisions in the opposite order. It is a lawyer’s job to analyze and identify those particulars, and we have a duty to ensure that the state — with all its resources and flaws and normal susceptibility to human error and bias— do not take advantage of any situation or accused person, especially vulnerable ones. That expert analysis ensures the justice system is working properly, and it starts as soon as you contact a lawyer. When your life is in the hands of the state, and they do not have any of your best interests in mind, you probably want to speak to a professional before you agree to do or say anything. That does not mean that justice won’t still be served.
Police have a duty to inform and implement rights to counsel. If they get a statement or confession from an accused person, they are constitutionally bound to do so fairly, lawfully, and according to the Canadian Charter of Rights and Freedoms.
If an accused person exercises their right to counsel and then follows their counsel’s advice to remain silent, I’m confident the tax-payer money funding the police force can be put to good use to further investigate in other lawful ways. After all, that’s their job. Providing sound legal advice is ours.
About Melody Izadi
