Megan Beesley, Esquire

2016 Pegasus Scholar Report

Imagine a criminal jury trial in which everything is spontaneous. The witnesses have not been interviewed by a lawyer nor prepared their testimony with any lawyer, and they don’t know which questions they will be asked or what the other witnesses will say. The prosecuting lawyer meets the complainant on the morning of trial. The defense lawyer meets her client the morning of trial, having reviewed the police reports, witness statements and the client’s written responses to the evidence. The defense lawyer does not prepare the client’s testimony and must stick to the defense chosen by the client well ahead of trial. Would such a trial reveal the unadulterated truth better than a trial in which every witness is prepared and rehearsed?

This spontaneous trial is the standard in England and Wales, and I was lucky enough to observe criminal trials in London over six weeks and shadow brilliant criminal barristers to study the effect. I have been a proud American public defender in a trial-heavy jurisdiction for five years, so I was used to what the English would consider the “produced” American trial, where no attorney would ask a question without knowing the answer ahead of time, and where every trial holds the state to proving every element of the crime.

My first impression of criminal barristers was that we probably understand each other better than civil attorneys or civil barristers do. Recent cuts to legal aid in England have affected all criminal barristers and required them to be more resourceful and frugal. Their lives are hectic and fast-paced, requiring them to travel all around the London area as soon as they get the call from their clerks, usually spending hours on a train every day. These train rides with barristers were my favorite part of the experience, as it gave them a moment to catch their breath and help me process what I had experienced, and it gave me an opportunity to be their sounding board for upcoming cases. Young criminal barristers are overworked, underpaid, and underappreciated, but just like public defenders, they do the work because they are proud to take part in the judicial system. We each believe in our systems and the justice they provide, even though they are quite different.

The core difference is that the English system holds truth as its primary value, whereas the American system has other values such as privacy and freedom from government intrusion that sometimes compete with the truth. Because those American values are enshrined in a codified Constitution, they sometimes trump the truth and greatly affect the outcome at trial. The English used to have more equivalents to our Bill of Rights but has weakened them in their prioritization of truth. For example, in England, it is nearly impossible to get evidence thrown out for any reason, but certainly not because the police invaded someone’s privacy. In England, witnesses can testify from behind a curtain, through a television feed, or can record testimony ahead of time, which would violate the American Confrontation Clause. The English no longer allow jury trials for civil cases, misdemeanors, or special crimes with a history of jury tampering, such as terrorism. They cannot remove biased jurors from the prospective jury pool, or indeed find out which ones are biased by examining them. English judges instruct juries that if a defendant remained silent, the jurors could infer guilt from his silence. The barristers I questioned about these differences were not bothered, as they did not grow up revering the founding fathers and their skepticism of government power. Most English (including criminal defendants I talked to) see the American system as being more deceitful. They are correct that most American juries don’t get the whole truth at trial, but that’s because some other value has entered the equation.

The most shocking part of the English system for me was how different the attorney-client relationship is from the barrister-client relationship. The English have what they consider confidentiality and a duty of loyalty, but a barrister’s protection of client secrets is slight compared to the vault that an American defense attorney is obligated to create. In the US, my client can tell me anything (except a future crime) and I will never be able to tell it to a judge or a prosecutor. No matter what my client tells me, I can look at the evidence and shape my trial strategy based on what is best for him, not based on what he may have told me at some point in our conversations. As defined in Missouri, my only limitation is that I cannot present false evidence, where my reasonable belief that something is false does not count as “false.” Most importantly, I can argue anything in court. In England, by contrast, a barrister is held to what the client has told her, even if the client has told only her, and only in confidence. This means that the English barrister cannot choose the best defense or argue anything different than what her client has said, even if the client doesn’t testify. My favorite example to show this difference is that if an American defendant tells his attorney that he committed the crime but doesn’t testify, the attorney could argue that he’s innocent. In England, a barrister would not be allowed to argue that her client is innocent because that contradicts what her client told her and thus misleads the court. Unlike American lawyers who hold the state to proving every element of the crime at trial, English barristers must provide a pretrial Defence Statement admitting to as many elements of the crime as possible under the defendant’s version of events. Additionally, an English barrister at times has to convince her client to waive confidentiality and provide evidence against himself, such as telling the court his prior convictions for the purpose of enhancing his sentence. All of these things were a huge difference from the way I practice, but they did create rapport between the Crown and the defense and did limit the issues at trial.

So which country’s trial better arrives at the truth? It was very exciting to observe trials in which the witnesses arrive at trial without preconceptions or any outside influence. English witnesses definitely seemed less capable of coloring their evidence to one side or saying what they thought someone wanted to hear. It was also a revelation to see barristers question witnesses, which in England is almost all improvisational and more of a back-and-forth with the witnesses instead of the strictly leading questioning in America. It became obvious that a different skill set is employed in the two countries in trial, so it is easy to respect both for different reasons. One downside of the lack of preparation is that the English trial tends to be more confusing, more unpredictable, and at times more boring. Americans are very good at telling an emotional story and working out the wrinkles and problems in a case ahead of time by talking to the witnesses before the trial. I did note that even though American trials are more produced and American witnesses at least subconsciously shape their testimony to a greater degree than the English do, Americans seem to dig deeper into what really happened, filling in the background to the incident that led to the criminal case and getting into the motivations and emotions of the key players.

My experience was the opportunity of a lifetime, and I’m especially grateful that I got to immerse myself in my specific passion of criminal trials. In addition to pounding the pavement every day with the best barristers in the United Kingdom, the Pegasus program provided incomparable cultural opportunities. Some highlights were drinking at the yeoman warders’ exclusive bar at the Tower of London, walking through Jane Austen’s house, getting a peek inside of 10 Downing Street, touring Parliament with one of its security guards, being hosted at the gorgeous and historical Inns of Court, and my favorite, taking part in the Judicial Assistants’ quiz night at the Supreme Court of the UK. Perhaps the most surreal experience of the whole trip was being able to pick the brains of the best judges in the UK as they took part in current events that affected the whole country. Right after a landmark unanimous accomplice liability decision came down that made way for hundreds of convictions to be overturned, we talked to one of the Supreme Court justices who decided the case. The day after a criminal barrister strike in Belfast ended, we were there hearing about it from a judge’s perspective. As the UK debated Brexit, we heard opinions from judges on both sides of the issue. The Pegasus program puts its participants in the heart of the English legal system, and I was constantly amazed at the conversations in which I found myself. Thank you so much to everyone who gave their time and effort to make my experience so special.

Megan Beesley, Esquire, is a public defender for the State of Missouri, a role she has held since 2013 and in which she represents indigent criminal defendants. She has first-chaired 29 jury trials, including multiple trials for Class A felonies. She has also worked as a public defender in DuPage County, Illinois, and Raleigh, North Carolina. She was the first lawyer in the City of St. Louis to uncover the use of Stingray technology, a technique used by law enforcement to locate cell phones, and has become a local expert on the technology and the secrecy with which it is wielded.

Beesley earned her J.D. from Duke University School of Law, and her undergraduate degree from Washington University in St. Louis, Missouri. She is an associate member of the Theodore McMillian American Inn of Court. In her work she mentors newer trial attorneys and collaborates with colleagues to make the office one of the premier jury trial offices in the country. She attended the Trial Lawyer’s College in Dubois, Wyoming, in 2014, a 24-day intensive jury trial skills school. She is a lecturer in the Missouri Bar Mini Law School and an attorney speaker in the St. Louis Urban Debate League.