"Held For Questioning" in the Princess' Death (8/31/97) 
In the aftermath of yesterday's tragic death of Princess Diana, news reports indicated that seven photographers had been held for questioning on the basis that they may have played role in her death. Early witness accounts apparently indicated that the photo-journalists, on motorcycles, were pursuing the princess and companion Dodi Al Fayed when their Mercedes crashed into a support post in a tunnel in Paris.

Putting aside the results of this horrific accident for a moment, the interaction between the French police and the photographers was, in a word, interesting. The men had not been "arrested" nor had was there been any indication that charges would probably be filed against them in the future. Nevertheless, they sat in jail.

The local prosecutor had vowed to conduct an "enquiry" that would "establish in more detail the role that these people may have played in the cause of the accident and how they behaved at the site."

Under French law, the men could apparently be held for 48 hours without formal action being taken against them.

Although the death of Princess Diana and others in the car is a tragedy, the way the photographers were treated reminded me how thankful we should be to live in the United States.

I'm not condoning the conduct of the men if in fact they played a role in the collision. At this point, no one knows what they did or did not do. Certainly, if the "enquiry" reveals that they engaged in conduct which makes them criminally responsible for the crime, then, by all means, prosecute them in the appropriate forum.

But their detention before the facts have been developed should trouble even the most law and order advocate.

In the United States, if the police have probable cause to believe a person has committed a crime, they can arrest that individual without a warrant. (Texas law, under article 14 of the Texas Code of Criminal Procedure, even requires additional facts to be present before the arrest can occur). But even when a warrant less arrest occurs, the U.S. Supreme Court has mandated that a defendant be promptly presented to a magistrate who should make a determination that probable cause exists for the continued detention of the defendant. In essence, a judge quickly reviews the decision of the police officer.

"Being held for questioning" or as a "material witness", simply does not exist in state courts.

In the case of the photographers who were near the accident scene involving  Princess Diana, they were for all intents and purposes arrested at the whim of the authorities.

Once again, if they are at fault from a criminal perspective for the deaths of the individuals in Paris, they should be held responsible. But their immediate detention, without a formal accusation being made against them or a neutral magistrate immediately reviewing the reasons for their incarceration, is troubling.

The images of the princess will not leave us quickly. Great Britain, as well as most of the world, is saddened because of her passing. Nevertheless, even in the worst of moments, a government cannot be allowed to overreact. If the photographers are eventually found not to have been at fault, their initial detention should not be excused merely because it made us feel better to quickly blame someone for this incident.

Barry Green is the District Attorney for the 271st Judicial District.

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