Statements and Confessions - New Learner1 Exploring Statements and Confessions • Charter rights...

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1 Exploring Statements and Confessions • Charter rights • confessions rule What’s the difference between a statement and a confession? Statement: Any verbal communication that might implicate a suspects involvement in a crime. (Saying, I always hated that guy!or I wasnt even there that night!when it is not public knowledge that the crime took place at night.) Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accuseds guilt. Right to Remain Silent Established under the Charter of Rights and Freedoms, Legal Rights, section 11(c) s. 11. Any person charged with an offence has the right: c) not to be compelled to be a witness in proceedings against that person in respect of the offence The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk. Justice Louise Charron wrote in her majority opinion: It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.In other words, a citizen can exercise his right to remain silent, but that doesn’t mean that the state can’t try to change that citizens mind! Paul Cooper’s Advice DO NOT Provide any statements! A statement is anything that you say whether it's recorded, written, or signed by you or not. Even if you exert your right to silence please note that the police are not under any obligation to stop asking questions. Anything you want to say at this point in time can wait and be discussed under the protection of solicitor-client privilege, when you are out of custody and in the lawyer's office. It is our professional advice that it is in your best interests not to say anything to the police regarding any information pertaining to your situation, even if it seems like harmless small talk. Bottom Line...DO NOT TALK. DO NOT Participate in Line-ups without legal advice! Line-ups are a Police tool used to obtain potential evidence against you. People get suckered into believing that somehow this will exclude them from further investigation. More often than not, it ends up being the final piece of evidence which in fact convicts them. There are numerous cases of wrongful convictions because of unfair lines-ups. Don't be the next. Before agreeing or refusing to partake in any line-up, contact a lawyer.

Transcript of Statements and Confessions - New Learner1 Exploring Statements and Confessions • Charter rights...

Page 1: Statements and Confessions - New Learner1 Exploring Statements and Confessions • Charter rights • confessions rule What’s the difference between a statement and a confession?

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Exploring Statements and Confessions

•  Charter rights

•  confessions rule

What’s the difference between a statement and a confession?

Statement: Any verbal communication that might implicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.) Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.

Right to Remain Silent Established under the Charter of Rights and Freedoms, Legal Rights, section 11(c) s. 11. Any person charged with an offence has the right:

c) not to be compelled to be a witness in proceedings against that person in respect of the offence

The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk. Justice Louise Charron wrote in her majority opinion: “It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.” In other words, a citizen can exercise his right to remain silent, but that doesn’t mean that the state can’t try to change that citizen’s mind!

Paul Cooper’s Advice DO NOT Provide any statements! A statement is anything that you say whether it's recorded, written, or signed by you or not. Even if you exert your right to silence please note that the police are not under any obligation to stop asking questions. Anything you want to say at this point in time can wait and be discussed under the protection of solicitor-client privilege, when you are out of custody and in the lawyer's office. It is our professional advice that it is in your best interests not to say anything to the police regarding any information pertaining to your situation, even if it seems like harmless small talk. Bottom Line...DO NOT TALK.

DO NOT Participate in Line-ups without legal advice! Line-ups are a Police tool used to obtain potential evidence against you. People get suckered into believing that somehow this will exclude them from further investigation. More often than not, it ends up being the final piece of evidence which in fact convicts them. There are numerous cases of wrongful convictions because of unfair lines-ups. Don't be the next. Before agreeing or refusing to partake in any line-up, contact a lawyer.

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DO NOT Participate in Polygraphs! Polygraphs are never admissible, BUT what is said during a polygraph may be considered a valid statement and is possibly admissible against you. Polygraphs are used as a Police tool and though the scientific outcome of the test may be "inconclusive" it may be a way for the officers to spark up further conversation. Polygraphs, similar to line-ups, are presented by the Police as a way of excluding yourself from further investigation, but its real purpose is just the contrary. Be aware of all Police tactics.

Good cop, baby cop. The Hangover

Police Interrogation: Fun and games in film and television

The Fifth Estate: The Interrogation Room

Stan Walters: Poor Interrogation Techniques

The Reid Technique: Not so fun in real life The Confessions Rule Established in English case law, the definitive statement of this rule of law came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609: It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. Twin Goals of the Confessions Rule: i.  protecting rights of accused ii.  without unduly limiting society's need to investigate and solve crimes

Defence lawyers critical of 'Mr. Big' police stings December 27, 2006

 An  undercover  police  tac0c  that  played  a  key  role  in  the  recent  convic0on  of  George  Allen  is  being  ques0oned  by  defence  lawyers.  The  "Mr.  Big"  scenario  —  where  officers  pose  as  members  of  criminal  organiza0ons  to  gain  apparent  confessions  to  crimes  —  was  a  crucial  element  in  the  first-­‐degree  murder  convic0on  of  George  Allen  in  Edmonton  on  Dec.  21.  In  a  videotape  played  at  Allen's  murder  trial,  Allen  describes  to  undercover  police  officers  pretending  to  be  underworld  figures  how  he  killed  his  friend  Garry  McGrath. AMer  his  arrest,  Allen  said  it  was  really  a  case  of  self-­‐defence,  but  he  was  trying  not  to  look  like  a  wimp  to  people  he  thought  were  criminals. The  jury  didn't  accept  his  explana0on  and  convicted  Allen  of  first-­‐degree  murder.   Ed  O'Neill,  who  speaks  for  the  Criminal  Trial  Lawyers  Associa0on  in  Edmonton,  said  evidence  gathered  this  way  shouldn't  be  admiTed  in  court. "There  is  a  real  danger  that  the  accused  individual  may  have  lied  to  the  undercover  operator,  and  what  you  have  is  a  false  confession.“

 RCMP  Sgt.  Al  HasleT  pioneered  the  Mr.  Big  scenarios  in  Bri0sh  Columbia  in  the  1990s.  It  has  since  been  used  in  other  provinces,  and  HasleT  has  taught  the  scenario  to  police  as  far  away  as  Australia.   In  a  Mr.  Big  s0ng,  undercover  officers  present  themselves  as  members  of  a  criminal  organiza0on  to  someone  suspected  of  commi[ng  a  crime.  Eventually,  they  introduce  the  suspect  to  the  fake  head  of  the  supposed  crime  syndicate  in  order  to  secretly  videotape  an  apparent  confession.

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Not  considered  entrapment:  law  professor    Steven  Penney,  who  teaches  criminal  law  at  the  University  of  Alberta,  said  the  tac0c  isn't  considered  entrapment,  because  the  police  aren't  commi[ng  crimes  or  inducing  the  suspect  commit  a  crime.      "Outside  the  context  of  custody,  police  are  preTy  much  unrestricted  in  their  ability  to  set  up  these  kinds  of  elaborate  opera0ons  to  cul0vate  a  suspect's  trust  and  get  them  to  make  incrimina0ng  statements."    Penney  said  the  police  know  the  informa0on  can  be  unreliable,  so  they  are  looking  for  more  than  a  confession.    "You  might  expect  someone  to  brag  or  boast  perhaps  untruthfully  about  their  criminal  past  in  order  to  gain  credibility  in  this  kind  environment.  What  police  are  looking  for,  knowing  that,  is  informa0on  that  can  be  corroborated.“  That  might  be  details  only  the  suspect  could  know  or  informa0on  that  leads  to  evidence  such  as  a  weapon  or  drugs.      O'Neill  said  there  have  been  aTempts  to  have  cases  such  as  Allen's  heard  by  the  Supreme  Court,  but  so  far,  they  have  failed,  though  he  expects  more  appeals.  

Before a statement (made by an accused to a person in authority) can be used for any purpose at trial, the Canadian confessions rule requires the Crown to prove beyond a reasonable doubt that the statement was made voluntarily. Historically, the two rationales for the voluntariness rule were: i)  to exclude unreliable confessions from evidence, and ii)  to prevent prosecutorial agents from compelling self-

incrimination from an accused. This rule was reinforced in by the Supreme Court in R. v. Oickle, 2000.

How does the Confessions Rule differs from Charter rights?

The confessions rule and the Charter rights differ in three respects:

1. The confessions rule has a broader scope of application than the Charter.

The confessions rule applies whenever a person in authority questions a suspect. However, s. 11 of the Charter, for example, applies only on “arrest or detention.”

2.  The burden and standard of proof is different.

Under the confessions rule the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary.

However, under the Charter the burden is on the accused to show, on a balance of probabilities, that a violation of the defendant’s constitutional rights has occurred.

3. The remedies are different.

A violation of the confessions rule always warrants exclusion of the confession. However, a violation of a Charter right warrants exclusion only if the admitting evidence would bring the administration of justice into disrepute.

Group Activity Students will form into four groups in order to examine the case of R. v. Oickle, 2000 (SCC). The groups will each examine this judgment to find clarification on a particular aspect of case law relating to the admissibility of confessions under the "Confessions Rule.” The groups will demonstrate these elements within a brief dramatic presentation.

Group   Issue   Reference    (R.  v.  Oickle)  

1   Threats or promises (paras.  48-­‐57)  2   Oppression (paras.  58-­‐62)  3   Operating mind (paras.  63-­‐64)  4   Police trickery (paras.  65-­‐67)    

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R. v. Oickle, 2000 (SCC). Threats or promises (paras. 48-57) In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

Oppression, (paras. 60) Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary.

Operating Mind A third component of the voluntariness inquiry identified in Oickle is the operating mind test. Confessions are involuntary when they are elicited from suspects who lack an operating mind in the sense that they do not know what they are saying or that they are saying it to police who may use it against them. Confessions from injured or hypnotized suspects, for example, can be excluded on this basis.

The Operating Mind Doctrine The operating mind doctrine requires that the accused knows what he is saying and that it may be used to his detriment. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.

Police Trickery: The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.