Survival Guide to Police Custody in France - Episode 4: Request the assistance of a lawyer

Choosing a lawyer

From the outset of police custody, the detainee is informed of his or her right to be assisted by the lawyer of his or her choice, or failing that, by a public defender.

A relative of the detainee who has been notified of the police custody under the "notifying a relative" procedure may also suggest a lawyer, provided that the detainee, who must be informed immediately, confirms this appointment.

To read more about your rights during police custody, consult the Survival Guide to Police Custody in France - Episode 1: Know your rights.

Lawyer’s notification and time of arrival

The lawyer, whether court-appointed or chosen, must be informed "by any means and without delay".

The French Higher Court, the “Cour de cassation”, has ruled that a delay of one hour between the detainee's request and the information given to the duty counsel violates this right to counsel (Cass. crim., December 6, 2005, n° 04-50.139, F-P+B).

If the lawyer who has been notified of the police custody has not arrived at the station within two hours, known as the "waiting period", then the police interview may begin without him or her.

Any police interview carried out before the expiry of the waiting period will be inadmissible in court.

The lawyer’s role during police custody

The assistance of a lawyer is strongly recommended during police custody.

The lawyer's intervention takes place in several stages:

1- During a confidential 30-minute interview with the detainee:

This interview will be repeated for each 24-hour extension, provided that the detainee requests the presence of his or her lawyer when the extension is notified.

At this stage of the proceedings, the lawyer does not have access to the criminal file, i.e. he or she is unaware of the existence of evidence to support his or her client's guilt or, on the contrary, to clear him or her.

The purpose of the interview is not to inform the detainee of the existing evidence against him.

It is, however, of particular importance, as it enables the detainee:

• To receive a clear reminder of his or her rights, to ensure that he or she has understood them, and to verify that they have been respected,

• To report any violations of his or her rights, as well as any malfunctions in police custody (disputes with police officers, sanitary conditions in cells, access to food and water, etc.),

• To explain the various stages of the police custody, any 24-hour extensions that may be ordered, and potential outcomes after custody,

• To discuss the facts of the case and prepare for the police interview(s) or confrontation. The respective advantages and disadvantages of making statements vs exercising the right to remain silent can then be explained.

At the end of the interview, the lawyer may submit written observations to the police officer, and to the public prosecutor, in order to report any irregularities or violations of rights related to his or her client's police custody.

2- During the police interview(s):

If the detainee has requested a lawyer, he must be present during all the police interview(s), except if the detainee has waved such a right.

During the interview, a police officer will ask the detainee several questions, and the detainee may choose to answer them or exercise his or her right to remain silent.

The questions asked by the investigator, and the answers given by the detainee, will be recorded in a report which is typed up by the police officer during the interview.

At the end of the interview, the lawyer will have the opportunity to ask questions to his or her client, or to make oral or written observations for the public prosecutor.

These questions/observations are intended to ensure the client's defense, or to expose possible violations of his or her rights.

Once the interview is over, the report will be re-read by the lawyer and his or her client.

If its content does not match the statements made by the detainee, the lawyer will ask the police officer in charge to modify it.

3- During a confrontation:

A confrontation may be arranged in the event of a discrepancy between the plaintiff’s version and that of the detainee.

The confrontation consists of a simultaneous hearing of the plaintiff and the detainee.

The lawyers for each party may be present.

At the end of the confrontation, each lawyer can ask questions to his or her client, as well as to the other party, and write observations for the public prosecutor.

As during the interview, he or she will ensure that the police officer's report is consistent with his or her client's and the other party's statements.

In practice :

Never waive your right to a lawyer

Police officers might tell you that if you decide to call a lawyer, your police custody will last longer.

This is not true!

If you don't know any lawyers, ask for a public defender

This will not prevent you from choosing your own lawyer at the end of police custody, should any further action be taken.

Read the report(s) with your lawyer

After each interview or confrontation, you will be presented with the report of your declarations in order to sign it.

Read it carefully, together with your lawyer.

Trust your lawyer

Your discussions are covered by professional confidentiality, and he or she is working in your best interests.