The Philosophy Of Testimony And Belief And The Criminal Law

As mentioned in my previous post on RPG (reasonable and probable grounds) and The Theory of Knowledge, I am in the midst of a MOOC offered by the University of Edinburgh on Philosophy. Last week, the lecture was on “testimony and belief” and specifically discussed the opposing philosophical theories of David Hume and Thomas Reid on the subject.

Much of the intractable disagreement between the two philosophers is really more about religion than it is about philosophy. Thomas Reid, was a deeply religious man and a curate for the first few years of his professional life. David Hume, a staunch critic of religious belief systems, was a religious skeptic. Reid, a proponent of “common sense” and the human ability to sense his or her surroundings, argued that human beings innately believe in the veracity of another person’s testimony. In other words we are genetically disposed or “hard wired” for this belief. This “principle of credulity” as he termed it was connected to our human nature, which is naturally disposed to community, and our desire to trust our senses or feelings in accepting another person’s testimony. Therefore, this divine intuition was an appropriate and logical reason to accept another’s testimony.

Hume, ever the skeptic, required independent evidence that a person’s testimony was likely to be correct. In Hume’s opinion, humans have an incentive to lie when doing so would benefit their own self-interest. Politicians may come to mind as the example. Further, Hume argued, humans are naturally disposed to telling, and enjoying, unsubstantiated stories for the sheer pleasure these stories give themselves and others. The popularity of gossip magazines and the longevity of The National Enquirer can attest to this point.   

Immanuel Kant, who was awakened from his “dogmatic slumbers” by Hume’s philosophical theories, also weighed in on the issue. Kant went a step further than Hume by praising “intellectual autonomy” or the ability to be guided, not by another’s testimony, but by an individual’s own understanding and beliefs.

In light of this, how does the law approach testimonial evidence? Does the criminal justice system side with Hume and Kant requiring independent evidence before testimonial evidence will be accepted or does it side with Reid and the God-given nature of people to speak truthfully?

The general rule, it seems, is for Reid – permitting testimony to stand on its own, without requiring corroboration, but in the heightened circumstances of an oath or promise. This binding over of the witness to tell the truth does have a hint of Reid as it invokes the support or, in some ways, corroboration from a higher deity in the case of an oath or a higher power in the case of a promise. However, it is questionable whether Reid himself would deem this precaution necessary.

The criminal justice system relies on testimonial information to support two distinct aspects of a crime. Firstly, testimony is needed as part of the investigation of a crime. Secondly, it is required for at the trial of a crime. Although both aspects view testimony differently, clearly Reid’s principle of credulity applies to both.

During an investigation, the police interview witnesses and possibly the accused to provide the evidence of a crime. Such evidence gathering may precede the officer’s RPG (reasonable and probably grounds) for arrest or it may be gathered after the arrest, when RPG is already present. Although there may be some consideration of the credibility or believability of the testimony given, typically the police will leave the assessment or weighing to the Courts.

Once in the courts, the testimony is received without corroboration or without requiring independent evidence of the testimony. Historically, corroboration was required for a child’s unsworn testimony and for accomplice evidence, but these requirements were abolished or relaxed (Vetrovec warning for accomplice evidence), leaving the trier of fact to determine credibility by assessing the whole of the evidence.

So it appears our laws have applied both Hume and Reid and that the “common sense” approach of Reid has prevailed.

Touching On The Biographical Core of Personal Information: The Supreme Court of Canada’s Decision in Cole

As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.

Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.

The second paragraph reads as follows:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.

The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.

The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.

In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.

Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.

To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that

s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)

Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.

As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure

to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)

Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.

This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.

Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.

Is There Evidence In This Courtroom? Admissibility of Evidence At A Criminal Trial

In the last posting I discussed police interviewing or interrogation of an accused and the difficulties presented by oppressive and inappropriate techniques. The issue was the manner in which the police interviewed the accused, using the Reid technique, an interview technique created in the nineteen fifties, which, according to critics, is “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” Indeed, statements taken from an accused in such an atmosphere have, unsurprisingly, resulted in the exclusion of the statements from trial evidence.

I say “unsurprisingly,” but perhaps an assumption that we understand why such a statement would ever be inadmissible as evidence, is assuming too much. To understand this, we must step back and first understand the purpose of evidence in a criminal trial.

Let’s look at an example: Bea Goode is charged with taking a toothbrush from the local drug store. She is charged with theft under $5000.00. In the Criminal Code, section 322 sets out the definition of the crime of theft and section 334 outlines the punishment and procedure, which differs if the value of the property is over $5000.00. The least serious mode of proceeding, and therefore attracting the lesser punishment, is reserved for the offence of theft under $5000.00. This value amount changes over time as the value of our dollar becomes more inflated: when I started law school in the early eighties the crime was theft over or under $200.00.

In any event, Bea is charged and required to attend in court. There is a whole process involved before the setting of the trial date, but let’s imagine for our purposes that Bea’s trial is scheduled. What then is the purpose of the trial? The purpose is to determine what happened and whether or not what happened is or is not a crime. Obviously, we want to determine what really happened as if we had been there ourselves. We want information, as objective as possible, so that if more than one person saw what happened there would be a general agreement as to the facts. In other words, we want the truth. As a result, there is a truth-finding function of the trial.

If the main purpose of the trial is to find out the “truth” and to allocate responsibility on that basis, then how does the criminal trial accomplish this through the admissibility of evidence? First, let’s define “evidence” and its purpose at trial.

In our adversarial system, we require both the Crown and the defence to vigorously pursue a legitimate result to the best of their ability. At all times these advocates must conduct themselves in a manner consistent with the codes of conduct of the various law societies, the legal rules of process and procedure, and the rules of court. For example, counsel has a duty, as an officer of the court, not to mislead the court by offering false or misleading information. Some of this information may be called “evidence.”

Evidence is the data or facts with which the trier of fact, either a judge or a jury, uses to come to a decision. The trier of fact, upon receiving this data, applies legal rules and principles to these facts in arriving at a final decision on the case. In a judge alone case, the judge is the trier of fact and is also the arbiter of the law: the judge will decide which rule of law applies to any given set of facts.

Where there is a jury, the judge determines the applicable law, instructs the jury on those principles, and then the jury, as the trier of fact, takes the rules as given and applies the rules to the accepted facts. In our adversarial system, the trier fact must decide if the required elements of a crime, both legal and factual, have been proven beyond a reasonable doubt before finding guilt. It is only evidence, which under our legal rules has been deemed admissible, that can be considered by the trier of fact. Then, the trier of fact must decide, on the basis of all of the admissible evidence, whether the case has been proved beyond a reasonable doubt. To come to this conclusion, the trier of fact can accept all, part or none of the admissible evidence. However, only admissible evidence may be considered.

There are many legal rules surrounding the admissibility of evidence. Many of these rules are designed to enhance or ensure the truth-finding function of a trial. These rules are historical and have arisen through the English common law or custom for hundreds of years. These rules were fashioned to protect the accused: if we are going to punish an individual for their actions by stigmatizing them as criminals or by depriving them of their liberty or livelihood, we want to be certain we are doing it in a fair and just manner based on relevant, proven, and truthful evidence.

Indeed, many of the rules of evidence are in place to ensure as much as possible the truthfulness or objectivity of the facts. A good example would be the rule against admitting hearsay evidence. Hearsay is information coming from a third person, not the witness, who is merely repeating the information. The problem with admitting this kind of information is obvious: the witness could have heard the information in error or could be adding their own interpretation. Thus, the truthfulness of the information is suspect. Furthermore, the person who actually said the information is not before the trier of fact and therefore their demeanour, credibility, and observation skills cannot be assessed. In other words it is not the best evidence and therefore is more open to inaccuracy: it is unreliable and possibly untruthful.

There is now a trend towards admitting hearsay evidence if it is reliable evidence and necessary to the case. The difficulty is in deciding what makes such evidence reliable and necessary. The legal view has definitely changed over time with the result that necessity and reliability has been given a generous interpretation; not necessarily an interpretation to the benefit of the person on trial and therefore not consistent with protection of the person whose liberty interests are at stake. Supporters of this trend suggest it is more consistent with a societal interest in protection of the public. Others also suggest that this trend is merely accepting the realities that the search for truth may be an impossible quest and a naïve one. What was once inadmissible becomes admissible depending on the shifts in our fundamental values.

What does this mean for confessions? In a future posting, I will discuss more specifically the confessions rule and the special place evidence involving self-incrimination has in our criminal law.

“Reid” This: Is It Time To Change Police Interrogation Techniques?

Recently, a news story made its way across the Calgary news landscape: Alberta Provincial Court Judge Dinkel ruled an inclupatory statement made by the accused, Christa Lynn Chapple, inadmissible as evidence at the trial. The ruling found the statement was not given freely and voluntary as a result of the police interrogation. The actual ruling was made earlier this summer, but received media attention as journalists connected the decision to a recent field study on police questioning practices.

This study is one of a series of studies on Canadian police practices researched by the psychology department at the Memorial University of Newfoundland. The primary researcher, Brent Snook, associate professor of psychology at the university, also co-authored another published study from 2012 on the training of Canadian police in the “technique” of interviewing witnesses. The same Memorial team, of Snook, MacDonald, and Eastwood, also published an earlier study in 2010 on how Canadian police administer the right to silence and the right to retain and instruct counsel – both are required cautions to be given to an accused in police detention as a result of the Charter and Charter case law interpretation. Eastwood and Snook both published a paper in 2009 on how understandable to the accused the right to silence caution was when actually given by the arresting police officer.

Clearly, this group of researchers has looked long and hard at Canadian police investigatory practices and techniques and are well equipped to comment on police practices generally. Comment, they did - in the opening statement of the police training study paper, the authors find that “Two recent field studies on how Canadian police officers interview witnesses suggest that most interviewers are not employing best practices.”

This deficiency in practice was further identified in the most recent study on police questioning. Specifically, the researchers were concerned with the practice of the police to ask “close-end” or leading questions, which did not permit a free flow of information from the witness. Often, the interrogators “violated the recommended 80–20 talking rule and interrupted witnesses … in almost 90% of the interviews.” Such line of interrogation, which requires the investigator to control the interview and the information flowing from the questioning, does not, in the researchers opinion, allow for accurate and complete statements. A lack of training, supervision, and feedback was identified as the main reasons why the interview practices were so inadequate.

It is this kind of interview technique which was at the core of the Chapple case. Christa Lynn Chapple was an operator of a day home for children and had in her care a young child who subsequently suffered an unexplained head injury. At the time of the incident, Chapple was interviewed twice with no charges laid. A year later, after the police received forensic information from Dr. Matshes, a forensic pathologist, Chapple was arrested for aggravated assault and brought in for questioning. It must be noted, as Judge Dinkel also noted, that Dr. Matshes was under investigation for coming to “making unreasonable conclusions” in his forensic findings. In any event, Dr. Matshes opinion that the injury was done by non-accidental blunt force trauma caused the investigators to believe that Chapple was involved despite the lack of evidence to tie her to the injury and despite her previous denials.

The interview spanned over eight hours. It was an arduous interview in which Chapple tried to exercise her right to remain silent at least 24 times. Each time she attempted to exercise her right, the police interviewer ignored Chapple and immediately took over the interview by talking over her. In this interview the 80-20 rule, also known as the Pareto Analysis, requiring the suspect to speak 80% of the time, while the interviewer spoke 20% of the time, was practically reversed. The interview was peppered with long monologues from the police questioner, leading questions, and a repeated disbelief in the statements of Chapple, when she was actually given the opportunity to say something.

This form of questioning is known as the Reid Technique, a line of questioning formulated by Joseph Buckley in the 1950’s, where the investigator uses control of the witness and lengthy monologues to extract a confession. The technique, as Judge Dinkel described in Chapple, “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” The interview, according to Judge Dinkel’s findings, “was bent on extracting a confession at any cost.” The cost was, in fact, too high as the statement, taken in utterly oppressive circumstances, was deemed involuntary.

There are fortunately lessons to be learned from the courts when evidence is not admitted. The administration of justice, when faced with such findings of a judge, must rethink the practice or the implementation of a technique to ensure the system does not come into disrepute. Fortunately, Calgary Police Services is doing a review of their practices and training. Hopefully, they will be reviewing the studies of Snook and his team as well.

The Reid Technique is still being used across North America. This is in stark contrast to the studies from Memorial University and in defiance of a global trend to ensure miscarriages of justice, through false confessions, do not occur. The only way we can ensure this will not happen is by preserving and protecting the rights of an accused person, which goes to the very core values of our criminal justice system such as the presumption of innocence.

In previous postings, I have discussed the importance of the presumption of innocence to our criminal justice system. Those postings can be found here and here. In the next posting I will expand on the reason why a statement made by an accused to a person in authority, such as a police officer, must be freely and voluntarily given to be admissible in court. The reasoning, as I will discuss, ties into one of the major “themes” of criminal law: choice.

The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue.