An investigation usually contemplates evidence gathered from crime scenes and from witnesses. As such, witnesses are an integral part of any investigation. Witnesses can range from persons who observed a crime occur and can identify the suspect, to witnesses who have no direct connection to the crime but are able to provide some indirect evidence that will form part of the overall evidentiary package that the investigator will use to gain a full understanding of the crime. Evidence such as this may include work records or other archival data to which the witness has access.
All witnesses are managed during the initial investigation when officers arrive on scene, during the initial investigation, during the follow up of the investigation, and post-investigation for the court appearances.
The author has had numerous cases that have involved witnesses that need to be managed for a variety of reasons. Witnesses that are vulnerable, such as homeless people, need to be made available for court, so a witness management program is required to keep the witnesses available for Crown Counsel. Witnesses who are in danger due to their lifestyles also need to be given access to healthcare or other programs that may make them more likely to be of assistance to the court when they are called to give evidence.
The rest of this chapter is adapted from Introduction to Criminal Investigation: Processes, Practices and Thinking by Rod Gehl and Darryl Plecas is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.
“Different types of witnesses will provide evidence from different perspectives, and these perspectives need to be assessed by the investigator to establish the reliability of the evidence provided.”
For any investigation, the details of events provided by witnesses are a critical element of the evidence gathered. Witness testimony is the verbal account of events or knowledge of the facts relevant to the crime. Witness statements will assist the investigator in forming reasonable grounds to lay a charge and will assist the court in reaching a decision that the charge against an accused person has been proved beyond a reasonable doubt.
As the law has evolved regarding witnesses, many rules of evidence, definitions, and protocols have developed to govern the way witnesses may testify in court. It is important for an investigator to understand these elements as this allows an investigator to evaluate witnesses and collect witness evidence that will be acceptable to the courts. The purpose of this chapter is to discuss the following concepts as they relate to the process of witness management.
- Identifying witnesses
- Defining witness types
- Defining competence and compellability
- Identifying the witness/suspect dilemma
- Witness credibility assessment
- The truthfully-incorrect witness
- Recognizing dominant witness influences and conformity
- Dealing with uncooperative witnesses
- Conducting witness interviews
- The field interview
It is sometimes the case that persons found as apparent witnesses to an event do not always provide accurate information about their identity. The reasons for this deception can vary from actual involvement in the crime to fear of reprisals from the suspect to simply not wanting to become involved with the criminal justice system. Regardless of the reason, it is imperative for an investigator to verify the identity of each witness. This can be best achieved by viewing a valid photo ID or, in the absence of photo ID, by establishing the witness” identity through other means, such as police records, confirmation of identity, or verification of identity by a credible third party.
Once the identity of a witness has been determined, an investigator needs to establish an understanding of the witness classification. Different types of witnesses will provide evidence from different perspectives, and these perspectives need to be assessed by the investigator to establish the reliability of the evidence provided. This is important for several reasons, including that if charges ever go before the court, a judge will also consider these witness types and apply appropriate rules of evidence and levels of probative value to the evidence each type of witness provides.
Eye Witnesses and Corroborative Witnesses
As discussed in previous chapters, evidence can be classified as either direct evidence indirect circumstantial evidence. An eyewitness is a person who directly saw the criminal event take place, while a corroborative witness is a person who can only provide circumstantial or indirect evidence of the events surrounding the crime. For example, consider two scenarios where a young cashier is shot to death during the robbery of a convenience store. In the first scenario, one witness is found at the scene of the crime when the police arrive. This witness was a customer inside the convenience store. She saw the robber walk up to the counter, raise his handgun, and shoot the cashier. This witness can identify the suspect. In the second scenario, the witness is a customer who was walking up to the front of the store when he heard what sounded like a gunshot. He then saw a man running out the front of the store with a handgun in his hand. Upon entering the store, he saw the cashier had been shot. He can identify the suspect.
In both scenarios, a male suspect is apprehended in possession of a handgun only two blocks away from the scene of the crime. In the first scenario, the witness would be classified as an eyewitness; but in the second scenario, the witness would be a corroborative witness.
In the described scenarios, both witnesses can provide valuable testimony; however, the evidence of the eyewitness in scenario one would be given more weight at trial because there is a direct connection that the accused committed the offence through direct evidence, and the court would not need to make any interpretation on the veracity of any circumstantial evidence. The witness was present and saw the suspect shoot the victim. The corroborative witness in the second scenario provides strong circumstantial evidence to suggest that the man running from the store committed the shooting; however, additional investigation would be needed to support the circumstantial assumption that the person seen running from the store committed the shooting.
Clearly, eyewitnesses are the type of witness that investigators hope to find in their investigative efforts. Any police investigator will tell you, eyewitnesses are frequently not present at the scene of a crime, and therefore investigators need to be skilled at discovering additional physical and circumstantial evidence that can assist the court in reaching its conclusions in relation to the evidence of a corroborative witness.
In the second scenario, additional evidence that might assist the court to reach a conclusion that the suspect running from the store was the shooter might include the following: ballistics from the handgun seized from the suspect matching the fatal bullet found in the body of the accused, gunshot residue from the hand of the suspect showing that he had recently fired a weapon, and/or conclusive information indicating that the suspect and the shooting victim were the only two persons inside the store at the time of the shooting.
This is not to say that these same items of additional evidence would not also be useful to corroborate the witness in the first scenario. The difference is that, in the case of an eyewitness, the additional evidence is a value that is added, while in the case of the corroborative witness, more evidence is required to support the conclusion of guilt beyond a reasonable doubt.
In addition to considering the evidence of a witness based on being an eyewitness or a corroborative witness, the court will also give additional weight to evidence that comes from a person who is an independent witness. An independent witness is sometimes referred to as a third-party witness. They are characterized as independent because;
- They are not associated with the victim
- They are not associated with the suspect
- They are not in any way associated to the criminal event
In other words, an independent witness is someone with nothing to lose and nothing to gain by the outcome of the case. With this inferred lack of vested interest to either side, the independent witness is seen by the court as providing unbiased testimony. Similar to the court, an investigator can attribute more confidence to statements made by persons who are established to be independent eyewitnesses or independent corroborative-witnesses to an event.
Competence and Comparability
For a person to be called as a witness to testify in court, that person must be accepted by the court as being both a competent witness and a compellable witness. There are some rules that apply to assessing both competence and compellability of witnesses, and it is important for an investigator to understand these rules and definitions since it can negatively affect a case if key evidence is expected from a witness who is found either not competent or not compellable to testify. The examination here is not intended to be a comprehensive review of the rules of competence and compellability, but an overview of the main statutory issues. Case law relating to the finer points of witness competence and compellability is constantly evolving and, where applicable, may be presented in a court to challenge a witness.
A Compellable Witness
Most of the people an investigator will encounter during their investigations will be considered compellable to testify. Any person can be compelled to attend court as a witness by way of issuing a subpoena. If they fail to attend court after being served with a subpoena, the court may issue a warrant for the arrest of that witness to bring them before the court to testify. That said, once a person is compelled to attend court by either a subpoena or a warrant, there are still certain circumstances under which that person may be considered exempt, or not compellable to provide certain types of testimony. These circumstances relate to when the witness is an accused person or when the witness is the spouse of the accused.
- An accused person cannot be compelled. Under Sec 11 of the Canadian Charter of Rights and Freedoms (1982), an accused person cannot be compelled to testify at his or her own trial. However, if the accused person is charged jointly with another person, they may be compelled to testify against their co-accused. Under those circumstances, the witness can be afforded protection under the Canada Evidence Act (1985) and their testimony cannot subsequently be used against them at their own trial for that same offence.
- When the witness is married to the accused. To preserve the privilege of communication between two partners in their marriage, legislation and case law provides a protection of privacy, and anything said between two married partners in relation to a criminal event cannot be compelled as testimony in court. This exemption to testify is stated under the Canada Evidence Act (1985). Specifically, Sec 4(3) states:
No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
Many people incorrectly believe that this is a blanket protection where one spouse cannot testify against the other. However, the legislation only provides protection to the communication between spouses. It does not restrict a spouse being called to testify regarding observations of physical evidence or relationships. For example, a husband may arrive home covered in blood and carrying a bloody knife confessing to his wife that he just stabbed someone to death. Although the communication of the confession of the crime would not be compellable testimony, the observations of the blood, the knife, the time and location of the observation would be a compellable testimony. On this point, Sec 4(2) of the Canada Evidence Act (1985) also states:
No person is incompetent, or compellable, to testify for the prosecution by reason only that they are married to the accused.
In addition to the ability to call a spouse to testify regarding observations of evidence, the prosecution can compel a spouse to give evidence, including personal communications, for the prosecution in cases that involve an offence of violence against that spouse and certain sexual offence against children.
A Competent Witness
Like the rules of compellability, persons are presumed to be compellable to testify unless they meet the exceptions stated under the Canadian Charter of Rights and Freedoms or The Canada Evidence Act. All witnesses are also considered competent to testify unless it can be shown that they lack certain personal abilities or capacities. Historically, common law barred certain people from testifying. These people included convicted criminals, very young children, the mentally ill, and spouses of an accused person.
Many of these rules have been overturned by statute, for example, the rule against convicts was removed by section 12 of the Canada Evidence Act (1985). The record of a convicted person can still be used as character evidence.
There are three classes of exceptions; children, persons with low mental capacity, and spouses. For each of these classes of people, it is up to the opposing counsel in court to make a challenge and establish the incompetence of the witness.
There is a presumption that the witness possesses both capacity and responsibility to give evidence. To testify, a witness needs only the ability to recall what they have seen and heard and be able to communicate what they recall. To communicate, the witness must be able to understand and respond to questions, and the witness must demonstrate the moral capacity to tell the truth. Moreover, the determination of competency is guided by the following rules established in case law:
The proof of competency or incompetency is on the balance of probabilities (R v Ferguson, 1996).
Where competency is challenged, it must be established by a voir dire before the witness can be sworn (R v Steinberg, 1931).
A witness who states that they may not tell the truth is still competent to testify. Such issues of truthfulness are factors of credibility for the trier-of-fact (R v Walsh, 1978).
When considering the issues of witness competence and compellability, an investigator must keep in mind that the evidence collected from certain witnesses, such as spouses, children, and persons of low mental capacity, may be subjected to these rules. Exemptions for witness testimony and exclusion of the evidence may occur at trial (R v Khan, 1990; Justice Canada, 2017).
That said, during the investigation, it remains within the purview of the investigator to assess the information and evidence collected, and to consider that evidence when forming reasonable grounds to believe and act. When considering the nature of the information and evidence received, it is not up to the investigator to assess whether the court will accept the information or not. The investigator’s use of the information and evidence received from a spouse, a child, or a person of low mental capacity should not be discounted in forming reasonable grounds simply in anticipation of a possible exemption of the witness and exclusion of evidence by the court. If the person giving the information or evidence is assessed as being a credible witness, the investigator should consider that material and give it fair weight in forming reasonable grounds for belief.
The Witness/Suspect Dilemma
Although the circumstances vary, it is a common occurrence that crimes are reported by a perpetrator posing as a victim or a witness. Crimes, such as break-and-entry and motor vehicle thefts, are quite often insurance frauds. Other crimes, including murder, have also had the offender make the report as a witness to explain their presence at the crime scene and avoid being considered as a suspect. Being aware of this possibility requires investigators to undertake a process of validating the reported crime and assessing the information being reported by witnesses or victims as a routine part of their investigation. To do this, an investigator should be attentive to questioning the report and the evidence presented to assess:
- Did the crime happen at the time being reported? It is often difficult for a person fabricating a report to provide the true timing of the events without implicating themselves as present at the time of the crime. Asking questions that demand timelines accounting for witness activities during the crime time can sometimes detect deception.
- Did the crime happen at the place being reported? Persons fabricating a report will sometimes change the location of the reported crime to avoid detection of the true crime scene where incriminating physical evidence may still be present. Carefully assessing the report in comparison to evidence present or not present can sometimes indicate this deception.
- Did the crime happen in the manner being reported? False accounts of crime will often exaggerate or over report details of the event. The report will contain some level of fabrication that explains their own connection to the events. Assessing each witness version of the event for consistency or inconsistency with physical evidence and other witness versions can reveal deception.
Even with careful attention to these questions, it may not be immediately possible to confirm the validity of the crime being reported, and the investigation must proceed to take the report as true until other evidence emerges to prove otherwise.
The advantage of investigating this kind of falsely reported crime is that the suspect is presenting themselves as a witness or victim. As such, all their statements may be taken and will be admissible against them later, without voir dire, if deception in their statement becomes provable. Until some distinct piece of incriminating evidence emerges, the investigator is under no obligation to caution or warn the witness. Each new statement can afford opportunities to investigate further in search of evidence of the lie that will prove deception.
Witness Credibility Assessment
In addition to determining if a person is an eyewitness, a corroborative witness, an independent witness, a competent witness, or a compellable witness, every person who is a witness during an investigation needs to be subjected to a credibility assessment. As information and evidence are collected from each witness, it is part of the investigator’s job to determine the level of confidence that can be attributed to each witness. This is called witness credibility assessment.
One of the most significant issues to be considered in assessing a witness is determining if they are a witness, or if they are a suspect posing as a witness. More likely than interviewing false reporters of crime, investigators find themselves interviewing a variety of ordinary people who truly have been the victim of a crime, have witnessed a crime, or witnessed some aspect of a criminal event. The level of confidence an investigator can have in a witness will be contingent on several factors relating to who the witness is, the abilities of the witness, and the circumstances of the event.
- Witness profile. Ideally, every witness would be an upstanding member of the community with a high level of integrity and an outstanding reputation. This is rarely the case. The nature of criminal activity and the natural proximity and association of criminals within a criminal community, often skew the witness list more towards those with more colorful and less upstanding personal profiles. Being part of the criminal community, or having a criminal record, does not necessarily mean that a witness will not be truthful. However, these are factors that an investigator must consider when assessing the value of the evidence being reported. For example, if a witness has a record for perjury, their evidence should be carefully scrutinized, and additional corroboration may be required to strengthen the witness” account of the events to achieve acceptable credibility for the court.
- Witness bias – motivation to lie. As discussed earlier in this chapter, independent witnesses who are not connected to the victim, the accused, or the event itself make the most credible witnesses. People close enough to a criminal event to become witnesses are often, in some way, related to the victim, the suspect, or to the event itself. As such, the associated witness may have a bias in making their report of the event. As a friend or foe, the witness may have some motivation to withhold information or to lie to influence the outcome. Understanding how each witness fits into the event, and what their linkages are to other participants or the event itself, is an important dynamic to uncover. In the case of a bias witness, additional corroboration should also be looked for.
- Witness involvement – emotional impact of the event. Criminal events can be very stressful and anxiety producing experiences. This is not only true for the victim but for anyone who has been exposed to danger, violence, or situations where threats to personal safety or incidents of injuries or death have occurred. As human beings, we are not conditioned to live through these kinds of events without experiencing emotional response. Post-Traumatic Stress Disorder speaks directly to the emotional damage traumatic events can inflict (Resnick, Kilpatrick, Dansky, Saunders, & Best, 1993). It is important for an investigator to consider the nature of the event and the exposure of the witness to these dynamics. Extreme post traumatic trauma, such as observing the violent death of a loved one, can sometimes render that witness unable to provide a reliable account of details (Streets, 2011). It may be necessary to give some witnesses time to regain their composure to provide information or evidence. In some cases, the traumatic effect is too significant, and the information cannot be recovered. Knowing how a witness is connected to the event and being able to comprehend their potential exposure to emotional trauma provides the investigator with the insight that certain strategies, such as softer interview techniques, flexible timing, and professional support resources that take the emotional trauma of the witness into consideration, may be necessary and appropriate. Another kind of emotional trauma is a witness” fear for their personal safety. This can be a fear of physical, psychological, or emotional reprisals for the witness providing evidence. In a situation that includes organized criminal groups, this fear is a genuine and understandable concern. In these types of cases, it may be difficult to protect the identity of a witness, and assurances of protection of the witness can be subject to jurisdictional or organizational limitations of witness protection resources.
- Location when viewing the event. A witness” physical location when observing an event can become an important point of evidence and should be considered and included in the interview and statement of each witness. If a witness is providing details of the event that required them to be in direct proximity of the accused or the event to observe or hear, the physical location of the witness at the time of those observations is a critical element. Physical location can also be important in explaining gaps or differences in witness observations. The fact that one witness to a crime observed certain actions, but another witness did not, can sometimes be explained by the alternate angles of observation of each witness or because of some physical obstruction that affected one witness but not the other. Crime scene photos and diagrams can often help witnesses to demonstrate and describe their distinct perspectives. Returning to the scene of the crime to physically establish these locations and angles of observation can be a useful exercise for investigators to conduct.
- Awareness of the crime – intent to observe and recall the occurrence. In most cases where a crime has occurred, a witness will know that the crime is happening, and this awareness will engage their attention to make observations that they can later recall and give an account of. In other cases, where a witness has not been alerted to the crime and is only observing the evolution of events as part of an unremarkable sequence, their memory is not as engaged, and their processes of observation may not be as keen. To demonstrate this point, consider an example where a group of three people are standing in the teller’s line at a bank. Scenario
At the front of the line, a young man hands the bank teller a note advising, “This is a robbery. I have a gun. Put all the cash from your till into an envelope and give it to me. Do not press the alarm or I will shoot you.” The bank teller is aware that a crime is taking place; however, the two customers standing in line behind the robber are simply waiting their turn. The customer standing immediately behind the robber suddenly notices that the teller looks frightened and sees she is placing the contents of her cash drawer into an envelope. The third customer in line remains unaware and is talking on the telephone to his wife about their grocery list. The robber grabs the cash-filled envelope from the teller and turns to run out of the bank. The customer immediately behind him steps out of his way, but he bumps into the third customer still talking to his wife. In this scenario, an investigator could expect to get a detailed account of the events from the bank teller who was engaged in the event and aware of the crime from the outset. The customer immediately behind the robber become aware of the crime and was making observations half way into the robbery. This customer could likely provide some significant details. The third customer in line was never aware that a crime was in progress and, other than perhaps providing a limited description of a man who bumped into him, his value as a witness may be negligible. Many witnesses who make observations of a criminal’s activities in the pre-crime stage or in the post crime stage, when they are leaving the scene of the crime, fall into the category of not being aware of the crime. This does not mean these witnesses will be of no value but that their casual observations need to be identified and recorded as soon as possible.
- Length of observation time. Very simply, length of observation time is the amount of time a witness had to see the event taking place. This amount of time will vary with circumstances, as there would be a difference in opportunity for observation between one witness standing stationary at the crime scene observing the event, and another driving past the unfolding events at 100 kilometers per hour. This can also be an issue contingent upon the awareness of the event taking place. Some witnesses become aware of the event more quickly and have a longer opportunity to observe. As with our example of the bank robbery, the teller being robbed had the longest observation time, the customer immediately behind the robber became aware that something was happening and had a shorter observation time, but the third customer did not become aware of anything until the robber bumped into him. This scenario demonstrates the value and detail of evidence an investigator might expect from witness with differing levels of observation time.
- Time elapsed between the event and the interview. A critical aspect of gaining the best account of events from any witness is making sure that the interview happens at the earliest opportunity. It is a practice in police investigation to make every effort to identify and interview witnesses as soon as possible. As a simple exercise to demonstrate the importance of finding and interviewing witness quickly, take a piece of paper and to the best of your ability, write down the details of your day starting at the beginning of the day three days ago. What did you do? Where did you go? Who did you see? If you are like most people, you have some level of daily structure to your life. From that structure, perhaps you will recall you got out of bed at a usual time. Maybe you went to work or stopped at the gym or at your favourite coffee shop on the way to work. These benchmarks of your daily routine may be easily remembered. But, on your way to work, did you happen to see a green van with extensive damage to the front end on the street near your home? Of course, this is a fictitious question, but this would be the kind of inconsequential daily observation information you might be asked to recall by police canvassing for witnesses to a crime. Understanding this time limited aspect of human memory, investigators need to consider how much weight they can place on the accuracy of information being recounted by a witness. If a witness is providing a remarkably accurate recollection of something being recounted from any distance in the past, it is a good idea to ask that person how they can recall what should be a mundane event with such a degree of accuracy or clarity. If they are correct, the witness will sometimes provide a memory trigger that made them notice and causes them to recall. For example, a witness may answer, “Yes, I remember that green van with all the damage to the front end because my brother has a green van just like that and I looked at the driver and saw that it wasn’t my brother. I looked at it even closer because I had never seen that van on my street before.”
- Ability to record or repetitively recount details. If a witness was aware that they had witnessed a crime and they were making a conscious effort to record or otherwise memorize the facts, this is a point that the court will be interested in hearing as part of the witness” evidence. If, for example, to remember the license number of a suspect vehicle, the witness repeated the number over and over until they were able to write it down, this is an important detail that should be recorded in the witness statement, and the paper upon which the number was written should be seized and retained as an exhibit that can be shown to that witness on the stand as the note they made at the time of the event. This demonstrated that the witness had intent to recall and record the details of an event, which will contribute in a positive way to the credibility of the witness.
- Physical abilities – hearing, sight, smell, touch, taste and cognitive perception. The physical faculties of the senses may be used by a witness in their recollection of the events they are describing. When a witness makes a statement referring to their senses, their credibility in giving that evidence will depend upon the extent to which their senses are working. In taking statements from witnesses, the investigator must be satisfied that a witness who claims to have seen an event has adequate vision to make that observation. Similarly, a person who states that they heard something must be able to demonstrate that they have adequate hearing to have heard it. Speaking very quietly to test the hearing limits of a witness or asking a witness to describe something within the visual ranges of the evidence they saw are both reasonable strategies to informally test a witness’s range or limitations of senses. Asking a witness questions about their use of eyeglasses, contact lens, or hearing aids during their observation of events are all reasonable strategies to establish the credibility of a witness to make the observations they are reporting. Flowing from the use of their senses, witnesses will often provide information and cognitive perceptions of the events they witnessed. The cognitive perceptions of a witness are their own personal interpretation of the information they took in through their senses. As such, they are a subjective analysis of the information being sensed. A witness may provide a statement regarding the age of a suspect, the size of an object, the speed of a vehicle, the smell of alcohol on a person’s breath, or even the distance they stood from the event they witnessed. To a certain degree, the court will allow such evidence and opinions of common knowledge from non-expert witnesses; however, a witness may be challenged on their observations, and it is best to understand any misperceptions in advance. Again, informal testing of a witness to become comfortable that their cognitive perceptions and subject interpretations are accurate and not significantly skewed is a reasonable way to test credibility. For estimating the age of a suspect, an investigator could ask the witness to point out other persons who are approximately the same age. Similar tests could be undertaken in testing perceptions of the size of objects, the speed of vehicles, and the distance to locations. For statements regarding observations, such as the smell of alcohol, the investigator should ask the witness to describe their personal experiences with alcohol to know that it was alcohol they smelt. If the witness had not experienced alcohol or been with people who were drinking alcohol, that opinion of smell would lose credibility.
- Cognitive capacity and age of witness. To establish the competency of either a child or a person of limited mental capacity, conducting a careful witness credibility assessment will be helpful for the prosecution in meeting challenges to competency. Part of the initial interview should seek to determine if the child or person of limited mental capacity understands the need to tell the truth. The competency background of the witness should be conducted by interviewing persons, such as parents, caregivers, teachers, or doctors, who know the witness and can attest to their mental capacity and their ability to understand questions and communicate their answers. The actual interview of both children and persons of low mental capacity are a delicate and time-consuming process. They must be conducted in a manner that is both suited to the maturity level of the witness and structured using non-leading questions to elicit answers. In cases where it is possible, investigators with specialized training in this type of interviewing should be utilized. That said, in the first instance, at the scene of an event, it is important for the responding investigator to understand the special considerations that apply to this type of witness in consideration of their evidence. The goal in these cases is to determine how much weight can be attributed to the evidence being provided by witnesses. An investigator may determine that the evidence of a witness is credible and can be used in the development of forming reasonable grounds or, alternately, they may find that the credibility of the witness cannot be established, and the evidence cannot be used in the development of reasonable grounds to act.
The Truthfully Incorrect Witness
As much as witnesses are a critical component of the criminal investigation process, they can also become a critical threat to the accuracy and integrity of evidence gathering. This sometimes occurs in an anomaly where an apparently credible, independent witness tells their version of events and they are significantly wrong in what they say they observed. Unlike cases where a witness is motivated to intentionally fabricate or exaggerate their account of events, the truthfully incorrect witness has no malicious intent and will provide their version of the events with a genuine belief that what they are saying is true and accurate. This type of witness is an independent observer with no motivation to lie, and as such the weight of their testimony can carry significant influence for the investigator’s reasonable grounds to believe and eventually carry significant probative value for proof beyond a reasonable doubt in the court. For investigators, the truthfully incorrect witness can become a paradox capable of misleading the outcome of the investigation resulting in a guilty suspect going free or an innocent suspect being arrested and charged. This anomaly of truthfully incorrect witnesses is an issue that investigators must remain mindful of. Witnesses are human, and humans are fallible. Even for a witness who appears to be independent and credible, there remains, a need to scrutinize and fact check the witness’s version of events against the known physical evidence and the accounts of other witnesses.
The importance of the investigator being mindful of a truthfully incorrect witness cannot be emphasized too strongly. In 1996, for example, the National Institute of Justice in the United States released a report concerning the implications of eyewitness testimony and false memories, and in it, reported that 90% of all DNA exoneration cases defendants were wrongly convicted upon the false memories of eyewitnesses (Brainerd, 2005). More recently, Smarlarz and Wells (2015), citing The Innocence Project, noted that eye-witness testimony was used to convict innocent people in over 70% of DNA exoneration cases. More recently yet, Rose and Beck (2016) note that eyewitness testimony accounts for more wrongful convictions than anything else. Research has shown that false memories in eye witnesses can be created in several ways, including through leading questions, reports from others, contact with other people, suggestions, a witness” own expectations, the expectations of others, other social pressures, and media (Bennett, 2015; Allen, 1991). It has also been established that witness recall can be affected by stress (Morgan et al, 2004) and by alcohol (Oorsouw et al, 2015) in complicated ways.
Dominant Witness Influence and Conformity
One of the negative dynamics that can occur in an investigation where there are multiple witnesses is the contamination or influence of witness statements by a dominant witness. This influence can occur when witnesses to an event have not been separated before any interactions or conversations have occurred between the witnesses. These dynamics are possible in almost all cases, and an investigator must always be mindful that this potential exists. It is also possible that a dominant witness will boldly and sometimes aggressively state their version of the events, which can cause other less confident or less sophisticated witnesses to question their own perspective. In such cases, a less dominant witness may change their version of the events or even omit observations to conform to what the dominant witness stated.
Most susceptible to this kind of influence are very young witnesses, elderly witnesses, or witnesses who have timid personalities. On some occasions, where there is an imbalance of power or status in a personal relationship, or even in a subordinate organizational relationship, witnesses may conform to the more powerful witness out of fear of repercussions or hope of favour. In some cases, the dominant witness has a vested interest in having their version of the events stated their way, and the dominant influence towards the other witnesses is intentional and implicitly threatening in its tone.
In cases where witnesses have interacted prior to being interviewed, each witness should be interviewed in seclusion from the others. Witnesses should be asked if they have discussed the event with anyone else or heard anyone else’s version of what happened. They should be cautioned and encouraged to disregard anyone else’s version of events and limit their version to their own account of what was seen and heard during the event.
One of the many unpleasant dynamics of criminal activity is when the police attend the scene of a crime and witnesses, or even victims, refuse to cooperate with investigators. Sometimes, these uncooperative persons are part of the criminal lifestyle and are not willing or interested in cooperating in the justice system. The only strategy for police in these cases is to gather as much forensic evidence as possible in relation to the event and to seek charges where enough evidence can be found.
Although these uncooperative witnesses may believe they are not required to participate in the criminal justice system, it is entirely possible to subpoena an apparent witness to attend court to be questioned regarding the criminal event they witnessed. If that witness refuses to answer questions in court, it is possible for the judge to find them in contempt of the court and to sentence them accordingly. That said, this rarely happens.
Conducting Witness Interviews
Arriving at a crime scene, investigators are often confronted with a cast of characters who may be victims, witnesses, or suspects in the matter to be investigated. In the case of an active event, where immediate in-depth interviews are not possible, it is important to:
- Conduct immediate field interviews of each subject at the scene;
- Do an immediate preliminary classification of persons found at the scene as victims, witnesses, or suspects; and
- Take appropriate measures to separate the persons found at the scene for physical security and protection of future testimony from cross-contamination of witness accounts and conformity.
The Field Interview
Attending the scene of an event, the first immediate field interview may be as simple as asking an apparent victim or a probable witness, “What happened here?”. This simple question serves several purposes for the investigator. First, it shows that the investigator is not making any investigative assumptions based on what is visible to him or her at first glance. With this question, the person being asked is prompted to supply their own version of the event, as they saw it. This pure version will assist the investigator in developing a picture of the event, and it will provide a context allowing the investigator to classify the speaker as a victim, witness, suspect, or an uninvolved party.
If the person the investigator questioned turns out to be the perpetrator, and the investigator has no other evidence that suggests this person should be a suspect, any statement made by that person would likely be considered a spontaneous utterance and may be admitted in evidence without a voir dire. For example, consider a situation where an investigator arrives at the scene of a street fight where a man has been fatally stabbed. The investigator asks one of the men standing nearby, “What happened here?” and the man immediately says, “I killed him and he deserved it.” This statement would be considered a spontaneous utterance and would likely be admitted as evidence without the usual voir dire. Once this self-incriminating statement has been made, the suspect would need to be immediately arrested and provided with the Charter warning and caution before any further statements could be pursued through additional questioning. Clearly, once a suspect is identified, they can no longer be considered as a witness.
If no one is immediately identifiable as a suspect at the scene of an event, it is reasonable for the investigator to proceed with classifying the persons present as possible witnesses. As discussed earlier in this chapter, to classify the witnesses, the investigator must consider the nature of the evidence that the witness can provide:
- Direct evidence of the eyewitness, which is evidence of seeing the criminal event occurring and perhaps even identifying the suspect; or
- Circumstantial evidence of the corroborative witness, which is indirect evidence of events, physical evidence, timelines, and spatial relationships that can assist the court in reaching a logical presumption of how the crime occurred and who was responsible.
Interviewing a witness is not just a simple matter of hearing their version of the events. There are many factors that can come into play in determining how credible a witness is. Following the initial field interview, and once the event is under control, it is important to take the witness” formal statement at the earliest available opportunity. Taking the witness statement should be conducted using the best technology available given the circumstances. If audio and or video recording devices are not available or obtaining them would cause an unreasonable delay in getting the witness statement, a written statement should be taken. No matter how the witness statement is recorded, it should be the goal of the investigator to obtain the best, uninfluenced, and unbiased version of events from a witness.
Like the threat of conformity being induced by a dominant witness, a witness can also be influenced by leading questions asked by an investigator. Some witnesses are so eager to assist in solving the crime that they will attempt to guess the answer to a leading question instead of admitting that they do not know the answer. The caution here is to avoid asking leading questions. Leading questions are questions that a witness might be able to infer the answer by the nature of the wording. An example of a leading question would be:
“Did you see Larry pick up the revolver and shoot Bill in the head?”
This leading double question can be answered yes or no, and it also supplies the witness with a significant amount of information that the witness can infer about the details of the event. These may be details that they would not have previously known. From this question, the witness could infer that Bill was shot in the head, the weapon used was a revolver, the suspect in the shooting was Larry, and the revolver was picked up from somewhere. A better and more appropriate initiation of the statement would be: “Did you witness an event today? Tell me what you saw.”
Although this open-ended approach to statement taking is more time consuming, the investigator at least knows that they are not planting any ideas or words to influence the witness” account of the event. Taking a statement in this manner is known as taking a pure version statement. A pure version statement needs to be the witness’s best, uninterrupted narration of the events, as they recall it. As the witness recounts their best memory of the event, the investigator must resist the temptation to intervene and ask clarifying questions on the points being revealed. Clarifying questions like the question used to start an interview can be leading and can influence the witness” statement.
As the witness recounts their pure version of the events, the investigator should be taking notes on points to be clarified once the entire statement is completed. Those questions should remain as open-ended as possible. So, if the witness has stated in their pure version of events, “I walked into the room
and that is when I saw the shooting happen”, the clarifying question should be an open-ended prompt, such as, “You said you saw a shooting happen, tell me more about that.”
There are many different techniques and strategies for witness interviewing that cannot be addressed in this short book as part of an introduction to investigations. The best advice for new investigators for the interviewing of a witness is learning to be patient and allow the witness to tell their story in their own time and in their own way. Avoid the human tendency of trying to assist and interact with the speaker by asking questions, filling in the blanks, and clarifying things while the story is being related. The more effective interview technique is one where the witness can exhaust their memory and relate the events to the best of their ability without interference and the contaminating influence of questions that might derail their train of thought.
As discussed earlier, it sometimes happens that a witness or a reporting victim will turn out to be the perpetrator of a crime. In these cases, allowing the person to provide their full uninterrupted statement can produce incriminating indicators or even evidence of involvement. There is a tendency for criminals who fabricate their report of a crime to make sure they are adding information in their statement that helps eliminates them as a suspect. This can include unsolicited alibis for their whereabouts and their activities at the time of the reported event. When a witness supplies this type of information without being prompted, it can be an indicator of personal involvement in the criminal event. Any such voluntary explanations of personal activities should be recorded carefully and closely scrutinized to confirm the validity of facts. Follow up questions to unsolicited explanations should include seeking the names of independent witnesses who might be able to corroborate the witnesses account.
In the case where an investigator suspicious that a reporting witness or victim may be the perpetrator of the crime, there is no obligation to reveal that suspicion until evidence exists that allows the investigator to form reasonable grounds for belief. If further investigation determines that the statement is a fabrication, this may be enough circumstantial evidence to require a warning for at least the offence of mischief for making the false report. In such circumstances, a Charter warning and caution are appropriate before additional questioning is undertaken.
Taking the Witness Statement
The written, audio, or video statement of a witness taken by a police investigator will become the permanent record of events as seen by that witness. The police investigator will use the content of that statement as a reference document in the construction of search warrants and in support of reasonable grounds for belief to lay an arrest. The crown prosecutor will use the statement to construct their case for presentation to the court and for pre-trial disclosure of the evidence to the Defense Counsel. The statement will serve as a document from which the witness may refresh their memory of events to provide accurate testimony to the court.
Considering the foregoing list of uses, the witness statement needs to be as accurate and complete as possible. The standard format used to begin a witness statement is as follows:
This is the statement of witness’s full name taken on date and time at location where taken by name of person taking or recording the statement.
At the conclusion of the statement, it must be signed by the witness. If the statement is audio and or video recorded, the foregoing preamble needs to be used to start the statement, and once the statement is transcribed, the witness should sign the hard copy transcription.
Interviews and statements are critical tools for policing. The following section from Gehl and Plecas provides the legal framework under which officers must work to provide statements admissible to the courts. Also included below are the overarching goals of investigative interviewing.
From Rod Gehl and Darykl Plecas, Introduction to Criminal Investigation: Processes, Practices and Thinking
“Understanding the correct processes and legal parameters for interviewing, questioning, and interrogation, can make the difference between having a suspect’s confession accepted as evidence by the court or not.”
In this chapter, we will examine the interviewing, questioning, and interrogation of suspects as information gathering techniques police use to aid them in investigations. In modern day policing, interviewing, questioning, and interrogation techniques are measured, objective, and ethical. They are aimed at the goal of discovering the truth; not just getting a confession to a crime. This is a contrast to earlier times of policing, when techniques called the “third degree” sometimes involved threats, intimidation, coercion, and even physical violence. Fortunately, these “third degree” techniques were identified in the United States by the Wickersham Commission in 1931, as being unlawful police practices that caused false confessions and miscarriages of justice, where suspects were sometimes wrongfully convicted and imprisoned (Head, 2010).
Emerging from this, police forces across North America, who were using the “third degree” techniques to varying extents, started moving towards less oppressive and less aggressive methods of interrogating suspects (Gubrium, 2002).
While there has been a significant evolution to more objective and ethical practices, the courts still remain vigilant in assessing the way police interview, question, and interrogate suspects during criminal investigations. The courts expect police to exercise high standards using practices that focus on the rights of the accused person, and minimize any physical or mental anguish that might cause a false confession. In meeting these expectations, the challenges of suspect questioning and interrogation can be complex, and many police agencies have trained interrogators and polygraph operators who undertake the interrogation of suspects for major criminal cases. But not every investigation qualifies as a major case, and frontline police investigators are challenged to undertake the tasks of interviewing, questioning, and interrogating possible suspects daily. The challenge for police is that the questioning of a suspect and the subsequent confession can be compromised by flawed interviewing, questioning, or interrogation practices. Understanding the correct processes and the legal parameters can make the difference between having a suspect’s confession accepted as evidence by the court or not. With the above in mind, this chapter will focus on several salient issues, including:
- The progression from interviewing to questioning to interrogating, and how this progression relates to investigative practices
- The junctures that demonstrate the need to change from interviewing a witness to questioning a detained suspect to interrogating an arrested suspect
- The issues of physical and mental distress, and how to avoid the perception of officer-induced distress during an interrogation
- The seven elements to review to prepare an interrogation plan
- The five common reasons arrested suspects waive their right to silence and provide statements and confessions
- The interrogation strategies to initiate statements using the motivations within the five common reasons
- The three types of false confessor and strategies to deal with false confessions
- The additional rights of young offenders and practices required to meet the investigative obligations under Canada’s Youth Criminal Justice Act
- Ancillary offense recognition
Interviewing – Questioning – Interrogating
Police investigations can be dynamic, and the way events unfold and evidence is revealed can be unpredictable. This premise also holds true for interviewing, questioning, interrogating suspects. Players in a criminal event may be revealed as suspects at different stages of the investigation. To properly secure and manage the statement evidence that is gained during interactions with suspects or possible suspects, it is important for investigators to understand the actions that should be taken at each stage, while remembering that interviewing, questioning, and interrogating are terms that refer to separate stages in the process of gathering verbal responses from a suspect or a possible suspect. But each stage is different in relation to when and how the information gathering process can and should occur. The differences between these three stages needs to be defined in the mind of the investigator since they will move through a process of first interviewing, then questioning, and finally interrogating a suspect. When this progression occurs, the investigator needs to recognize the changing conditions and take the appropriate actions at the correct junctures to ensure that, if a confession is obtained, it will be admissible at trial. Given this, let us examine the operational progression of these three stages and identify the circumstances that make it necessary to switch from one stage to the next.
Interviewing a possible suspect is the first stage and the lowest level of interaction. In fact, the person is not even definable as a suspect at this point. As pointed out in our chapter on witness management, suspects often report criminal events while posing as witnesses or even victims of the crime. The investigator receiving a statement report from such a person may become suspicious that they are not being truthful; however, until those suspicions are confirmed by evidence that meets the test of forming reasonable grounds for belief, the investigator may continue to talk to this possible suspect without providing any Section 10 Charter or cautions. There is a unique opportunity at that point to gather the poser’s version of events, including any untrue statements that may afford an opportunity to later investigate and demonstrate a possible fabrication, which is by itself a criminal offence. The transition point for an investigator to move from interviewing a witness or victim to detaining and questioning the person as a possible suspect should occur when real evidence is discovered giving the investigator reasonable grounds to suspect that the person is involved in the event. Discovering real evidence and gaining “reasonable grounds to suspect” creates an obligation for the investigator to stop interviewing the person who then becomes a suspect. At this point, the person is a suspect a should be detained for the suspected offence and provided the appropriate Section 10 Charter and Statement Caution before proceeding with the questioning of the suspect.
Questioning a suspect is the next level of interaction. For a suspect to be questioned, there will be some type of circumstantial evidence that allows the investigator to detain that suspect. In our previous scenario of the young man found at 3AM standing under the tree in a residential area at the boarder of an industrial complex one block away from the building where a break-in was confirmed to have taken place that young man was properly detained, chartered, and warned for the investigation of the break-in. However, there was no immediate evidence that could link him to that actual crime at that point. He was only suspected by the circumstantial evidence of time, conduct, and proximity to the event. He was
obligated to provide his name and identification. If he had tried to leave, he could have been arrested for obstructing a police officer in the execution of duty. The investigator at the scene of that incident would have questioned this suspect, and by his rights under the Canadian Charter of Rights and Freedoms, the suspect would not be obliged to answer questions.
This right to not talk does not preclude the investigator from asking questions, and the investigator should continue to offer the suspect an opportunity to disclose information that may be exculpatory and enable the investigator to eliminate that person as a suspect in the crime being investigated. As an example of this, again, consider our young man who was detained when found standing under the tree near a break-in. If that man had answered the question what are you doing here by stating that he lived in the house just across the street, and when he heard the break-in alarm, he came outside to see what was happening, this would greatly reduce suspicion against the young man once this statement was confirmed. Subsequent confirmation by a parent in the home that they had heard him leave when the alarm sounded could eliminate him as a suspect and result in his release.
Interrogation is the most serious level of questioning a suspect, and interrogation is the process that occurs once reasonable grounds for belief have been established, and after the suspect has been placed under arrest for the offence being investigated. Reasonable grounds for belief to make such an arrest require some form of direct evidence or strong circumstantial evidence that links the suspect to the crime. Of course, where an arrest is made, the suspect will be provided with their charter rights and the police caution, as per the following:
“I am arresting/detaining you for: (State reason for arrest/detention, including the offence and provide known information about the offence, including date and place.)”
“It is my duty to inform you that you have the right to retain and instruct Counsel in private, without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the Legal Aid Plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with the telephone number.
Do you understand?
Do you want to call a lawyer?” (Canadian Charter, 1982, s 10(a,b))
“You are not obliged to say anything, but anything you do say may be given in evidence.” (Transit Police, 2015)
If the suspect has already had communication with the police in relation to the offence being investigated, they should be provided with the secondary caution. This secondary caution serves to advise the accused person that, even if they have previously made a statement, they should not be influenced by that to make further statements.
Secondary Police Warning
“(Name), you are detained with respect to: (reason for detainment). If you have spoken to any police officer (including myself) with respect to this matter, who has offered you any hope of advantage or suggested any fear of prejudice should you speak or refuse to speak with me (us) at this time, it is my duty to warn you that no such offer or suggestion can be of any effect and must not influence you or make you feel compelled to say anything to me (us) for any reason, but anything you do say may be used in evidence” (Transit Police, 2015).
Once the accused has been afforded the opportunity to speak with a lawyer, the caution obligations of the police to the accused have been met, and the suspect may be questioned with respect to their involvement in the offence. These cautions and warnings may sound like a great deal of effort aimed at discouraging a suspect from saying anything at all to the police, and, in many cases that is the result. However, if the cautions are properly administered, and the opportunities to speak with counsel are properly provided, a major obstacle to the admission of any future statements has been satisfied.
Interrogation generally takes place in the formal environment of an interview room and is often tape-recorded or video-recorded to preserve the details of what was said. A video recording is the preferred means because it accurately represents the environment of the interview room in which the interrogation was conducted. In challenging the processes of an interrogation where a statement has been made by an accused, Defense Counsel will look for anything that can be pointed to as an oppressive environment or threatening conduct by the investigator. Within the appropriate bounds of maintaining an environment of safety and security, the investigator should make every effort to demonstrate sensitivity to these issues.
Seating in the room should be comfortable and balanced for face to face contact. The investigator should not stand over the suspect or walk around the room behind the suspect while conducting the interview. More than one investigator in the room with the suspect can be construed as being oppressive and should be avoided. The suspect should be offered a beverage or food if appropriate and should be told that a bathroom is available for their needs upon request. The demeanor of the investigator should be non-aggressive and calm, demonstrating an objective professional tone as a seeker of the truth. Setting a non-aggressive tone and establishing an open rapport with the suspect is not only beneficial to demonstrate a positive environment to the court, it also helps to create a positive relationship of openness and even trust with the suspect. This type of relationship can be far more conducive to gaining cooperation towards a statement or even a confession.
Prior to beginning the actual interrogation, the investigator should prepare an interrogation plan by:
- Reviewing the suspect’s profile, criminal record, and past investigations
- Reviewing the full details of the existing investigation to date
- Determining the elements of the offence that will need to be proved
- Determining if sufficient evidence has already been obtained to submit a prima facia case to Crown
- Examining evidence that demonstrates motive, opportunity, and means
- Determining what evidence was located and considered in forming reasonable grounds to arrest the suspect
- What physical evidence has been found that may yet be analyzed to prove the suspect’s involvement
Preparing the interrogation plan can assist the investigator in developing a strategy to convince the suspect to answer questions or confess to the crime. Those uninitiated to the process of interrogation might wonder why anyone would possibly choose to answer questions or confess when they have been provided with their Charter of Rights and Freedoms and the standard caution that they are not obliged to say anything, and anything they do say may be used as evidence. There are several reasons that can motivate or persuade a suspect to answer questions or confess. Statements or confessions are often made despite the warnings that would seemingly deter anyone from saying anything. These reasons include:
- Wishing to exonerate oneself,
- Attempting deception to outsmart the system,
- Providing an explanation to minimize one’s involvement in the crime, or
- Surrender in the face of overwhelming evidence.
Investigators who are familiar with these reasons and motivations can utilize them in assessing their suspect and developing a strategy for their interrogation plan.
After making an arrest, an objective investigator must always be prepared to hear an explanation that will challenge the direct evidence or the assumptions of the circumstantial evidence that led to the reasonable grounds for belief to make that arrest. The best reason an arrested suspect can be offered to answer questions is to be exonerated from the crime. It is possible, and it does occur, that persons are arrested for a crime they have not committed. Sometimes, they are wrongly identified and accused by a victim. Other times, they are incriminated by a pattern of circumstantial evidence that they can ultimately explain. The interrogation following the arrest is an opportunity for the suspect to put their version of events on the record, and to offer an alternate explanation of the evidence for investigators to consider. Exoneration is not just an interrogation strategy; it is the duty of an objective investigator to offer a suspected person the opportunity of make an explanation of the evidence that led to their arrest. This can be initiated by offering the suspect the proposition, “This is the evidence that led to your arrest. If there is an alternate explanation for this evidence, please tell me what that is.” In some cases, the statements made by the suspect will require additional investigation and confirmation of facts to verify the exoneration. Conducting these investigations is also the duty of an objective investigator.
Deception to Outsmart the System
Some experienced criminals or persons who have committed well-planned crimes believe that they can offer an alternate explanation for their involvement in the criminal event that will exonerate them as a suspect. An investigator may draw answers from this type of suspect by offering the same proposition that is offered for exoneration. This is the opportunity for a suspect to offer an alibi or a denial of the crime and an alternate explanation or exonerating evidence. It can be very difficult for a suspect to properly explain away all the evidence. Looking at the progression of the event, an interrogator can sometimes ask for additional details that the suspect cannot explain. The truth is easier to tell because it happened, and the facts will line up. In contrast, a lie frequently requires additional lies to support the untrue statement. Examining a statement that is believed to be untrue, an interrogator can sometimes ask questions that expose the lies behind the original lie.
As much as the good guys versus the bad guys” concept of criminal activity is commonly depicted in books and movies, experienced investigators can tell you that people who have committed a criminal offence often feel guilt and true regret for their crime. This is particularly true of persons who are first-time offenders and particularly young offenders who have committed a crime against a person.
Suspects fitting this category may be identified by their personal profile, which typically includes no criminal record, no police record or limited police record of prior investigations, evidence of poor planning, or evidence of emotional/spontaneous actions in the criminal event.
Suspects who fit this profile may be encouraged to talk by investigators who have reviewed the effect that the criminal act has had on the victim or the victim’s family. Following this review of victim impact, the investigator can accentuate the suspect’s lack of past criminal conduct, while making the observation that the suspect probably feels really bad about this. Observing the suspect during this progression, a suspect affected by guilt will sometimes exhibit body language or facial expressions of concern or remorse. Responses, such as shoulders slumping, head hung down, eyes tearing up, or avoiding eye contact, can indicate the suspect is ashamed and regretful of the crime. Observing this type of response, an investigator may move to a theme of conversation that offers the suspect the opportunity to clear their conscience by taking responsibility for their actions and apologizing or by taking some other action to right the wrong that has been done.
Explanation to Minimize Involvement
Suspects who have been arrested will sometimes be willing to provide an additional explanation of their involvement or the events to reduce their level of culpability or blame for the crime. In cases where multiple suspects have been arrested for a crime, one of those suspects may wish to characterize their own involvement as peripheral, sometimes as being before the fact or after the fact involvement. Examples of this would be a person who left the door unlocked for a break-in to take place or merely driving the getaway car. These less involved suspects hope to gain a reduced charge or even be reclassification as a witness against their co-accused. In such cases, where multiple suspects are arrested, the investigator can initiate this strategy by offering the proposition, “If you have only a limited or minimal level of involvement in this crime, you should tell me about that now.”
Surrender to Overwhelming Evidence
The arrested suspect in a criminal investigation waiting in custody for interrogation has plenty to think about. Even the most experienced criminals will be concerned about how much evidence the police have for proving their connection to the crime. In the process of presenting a suspect with the opportunity to address the evidence that has been collected, an additional strategy can sometimes be engaged where there is a large volume of incriminating evidence or undeniable direct evidence, such as eyewitnesses or strong forensic evidence for circumstantial connections of the suspect to the crime. In such cases, if the interrogator can reveal the evidence in detail to the suspect, this disclosure may result in the suspect losing hope and making a confession to the crime. Although this tendency to surrender to overwhelming evidence may seem illogical, it does happen. Sometimes, this surrender has more to do with conscience and shame of the crime, but other times, the offender has just lost the energy to resist what they perceive to be a hopeless fight. As counter intuitive as this may seem, research has found that the suspect’s perception of the strength of police evidence is one of the most important factors influencing their decision to confess to police (Gudjonsson & Petursson, 1991). More recent research has shown that the stronger the evidence, the more likely a suspect was to confess (Gudjonsson, 2015 ).
Dealing with False Confessions
As noted at the beginning of this chapter, the goal of ethical interviewing, questioning, and interrogation is to elicit the truth, and the truth can include statements that are either inculpatory confessions of guilt or exculpatory denial of involvement in a crime. Whenever an investigator has interrogated a suspect, and a confession of guilt has been obtained, that investigator needs to take some additional steps to ensure that the confession can be verified as truthful before it goes to court. These additional steps are required because, although the investigator has not used any illegal or unethical techniques, the court will still consider whether the accused, for some reason, has confessed to a crime they did not commit. A skilled defense lawyer will often present arguments alleging that psychological stresses of guilt or hopelessness from exposure to overwhelming evidence have been used to persuade a suspect to confess to a crime they did not commit. In such cases, it is helpful for the court to hear any additional statements made by the accused, such as those that reveal that the suspect had direct knowledge of the criminal event that could only be known to the criminal responsible.
In police investigations, there are many details of the criminal event that will be known to the police through their examination of the crime scene or through the interview with witnesses or victims. These details can include the actual way the crime was committed, such as the sequence of events, the tools used in the crime; or the means of entry, path of entry/exit, along with other obscure facts that could only be known by the actual perpetrator. There are opportunities in a crime scene examination for the investigator to observe one or more unique facts that can be withheld as “hold back evidence”. This hold back evidence is not made part of reports or media release, and is kept exclusively to test for false confessions. Confessing to the crime is one thing, but confessing to the crime and revealing intimate details is much more compelling to the court. Regardless of the effort and care that investigators take to not end up with a false confession, they still occur, and there are some more common scenarios where false confessions happen. It is important for an investigator to consider these possibilities when a confession is obtained. These situations are:
- The confessor was enlisted to take the blame – On occasions where persons are part of organized crime, a person of lower status within the group is assigned or sacrificed to take the blame for a crime in place of a person of higher status. These organizational pawns are usually persons with a more minor criminal history or are a young offender, as they are likely to receive a lesser sentence for the offence.
- The Sacrificial Confessor – Like the confessor enlisted in an organized criminal organization, there is another type of sacrificial confessor; the type who steps forward to take the blame to protect a friend or loved one. These are voluntary confessors, but their false confession can be exposed by questioning the confessor about the hold back details of the event.
- The Mentally Ill False Confessor – This type of false confessor are encountered when there is significant media attention surrounding a crime. As Pickersgill (2015) noted, an innocent person may voluntarily provide a false confession because of a pathological need for notoriety or the need to self-punish due to guilt over an unrelated past offences. Additionally, those suffering from psychosis, endogenous depression, and Munchausen Syndrome may falsely confess to a crime they did not commit (Abed, 2105). As with other false confessors, these people can be discovered using hold back detail questioning.
Interviewing, Questioning, and Interrogating Young Offenders
Over the past century, with the Juvenile Delinquents Act (1908), the Young Offenders Act (1984), and the Youth Criminal Justice Act (2003), there has been an increased recognition in Canada of the need to treat young offenders differently than their adult counterparts. Recognizing the special needs of youth, each of these acts moved to treat young offenders less punitively and with a greater attention to rehabilitation. Further, under the Youth Criminal Justice Act (YCJA), young offenders are regarded as a special category of suspect, and some very strict rules apply to the process of arresting, questioning, or interrogating a young offender. For instance, the YCJA requires the notification and inclusion of parents or guardians in situations where a youth is being subjected to action for an investigation or a charge for an offence. As well, any young persons must have their Charter Rights explained by the investigator with language appropriate to their age and level of understanding. This means that the officer must talk with and assess an accused youth to determine their ability to understand their rights before taking their statement.
The officer’s process of assessment will be questioned and examined by the court before any statement made by a youth is admitted as evidence. During this examination, the court will determine from the evidence whether the youth fully understood the rights being explained to them. An officer presenting evidence of having conducted a proper assessment of an accused youth should have notes reflecting the conversations and specific observations of the youth’s responses to satisfy the court that adequate efforts were made to ensure that the youth did understand their rights. Good evidence of understanding can be achieved by asking the youth to repeat, summarize, or paraphrase their understanding of the rights that were explained to them.
In addition to the right to instruct counsel, as afforded to any adult under the Canadian Charter of Rights and Freedoms, a youth must also be afforded the additional right of being given a reasonable opportunity to consult with a parent or, in the absence of a parent, an adult relative or any other appropriate adult chosen by the young person, as long as that person is not a co-accused or under investigation for the same offence.
Further, in addition to this right, there is also an obligation on the police investigator to provide independent notice to the parent of a detained young person as soon as possible. The requirement for notice to the parent is a separate obligation for police, and it requires specific notification of (a) the name of the young person, (b) the charge against the young person, and (c) a statement that the young person has the right to be represented by counsel. If a parent is not available to receive this notice, it may be given to a person whom the investigator deems appropriate. In the case of some young people, this could be an older sibling, an adult caregiver, or, for those in the care of Social Services, a social worker in charge of the young person care.
In any case, these requirements and others specific to young offenders are spelled out under Sec 146 of the Youth Criminal Justice Act:
Youth Criminal Justice Act (Section 146)
- Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.
- No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
- the statement was voluntary;
- the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
- the young person is under no obligation to make a statement,
- any statement made by the young person may be used as evidence in proceedings against him or her,
- the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
- any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
- the young person has, before the statement was made, been given a reasonable opportunity to consult
- with counsel, and
- with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
- The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.
- A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver
- must be recorded on video tape or audio tape; or
- must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.
- When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.
- When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.
- A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.
- A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver,
- the young person held himself or herself to be eighteen years old or older;
- the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and
- in all other circumstances the statement or waiver would otherwise be admissible.
- For the purpose of this section, a person consulted under paragraph (2) (c) is, in the absence of evidence to the contrary, deemed not to be a person in authority. (Government of Canada, 2015)