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.