Confessions Flashcards
Where is RTS in charter
Implied in s7 (not in s13 since that is only for during trial)
Why is it dangerous for confessions to go in front of jury
Usually fatal. Leading cause of wrongful convictions.
What is a prereq for pre trial RTS
Detention under s9 or 10 of charter.
Established either where there is a legal obligation to comply or a reasonable person would conclude by reason of state conduct that they had no choice but to comply
Where not physical or legal, consider:
Circumstances giving rise to encounter as reasonably perceived by the individual.
(Were police providing general assistance, maintaining general order, making general inquiries of a particular occurance or where they singling out an individual for a focused investigation?)
The nature of the police conduct
(Language, physical contact, location, presence of others, duration of encounter)
The particular characteristics or circumstances of the individual where relevant
(Age, stature, minority status, level of sophistication)
Fundamental purpose of right against self incrimination (RTS)
Fundamental purpose: to protect right of accused to make meaningful choice as to wehther or not to say anything to investigative authorities
Threshold issue for RTS
Threshold issue: RTS only concerns statements made to agents of the state
State agents will violate charter if they obtain the state in a way that violates meaningful choice. Consider:
Did agent actively elicit statement (not OK), vs did they passively receive the statement
No benefit to prosecution if a state agent goes beyond his instructions in eliciting statement
Is there a causal link btwn the relationship of state agent and accused and the obtaining of the statement?
Exploitation of special characteristics, trust relationship, vulnerability, mental state manipulation
(RTS) Can crown use accused remaining silent before trial as evidence to support conviction?
No
Exceptions:
Accused raises an issue that renders accuseds silence relevant
Accused fails to disclose alibi in timely or adequate fashion
Accused RTS is bound up with a larger narratvie or with evidence that is material to other issues and cant be easily extricated.
Courts are hesitant to go with exception cause still implicates RTS.
(RTS) Can co accuseds use an accused remaining silent before trial to support crim allegations against the accused?
May use accused’s silence to challenge credibility but not as evidence of guilt
Requires complex direction by judge:
Existence of RTS
Right to full answer/defense
Distinction between permissible uses (credibility only - not guilt)
Accused remaining silent may not have any bearing on credibility at all, may reflect having received legal advice
What is Confessions rule
Special type of hearsay admission made by accused and admissible in crim prosecutions
To be admissible:
Admission to person in authority (policy, but inquires as to subjective belief of authority)
Has to include entirety of statement, not just those favourable to crown
Crown must establish voluntariness of statement in voir dire BRD
Voluntariness = will of accused has not been overborne
By inducements (interrogation tactics)
Quid pro quo
Violence
Intimidation
Offers of medical help not likely to be as much of an inducement
By oppressive circumstances (environmental factors)
By lack of an operating mind
Limited cognitive ability to understand what they are saying
Intoxication, sleep deprivation, coercion, mental illness
No Police trickery (independent from voluntariness and RTS) → shocks conscience test
What are considerations in determining voluntariness under confessions rule
Voluntariness = will of accused has not been overborne
By inducements (interrogation tactics)
Quid pro quo
Violence
Intimidation
Offers of medical help not likely to be as much of an inducement
By oppressive circumstances (environmental factors)
By lack of an operating mind
Limited cognitive ability to understand what they are saying
Intoxication, sleep deprivation, coercion, mental illness
No Police trickery (independent from voluntariness and RTS) → shocks conscience test
List of reqs for confession rule
- entirety of statement
- to person in authority
- established BRD that will of accused has not been overborne
- by inducements (interrogation tactics - quid, intimidate, violence, maybe med help)
- by oppressive circumstances (environment)
- By lack of operating mind (sleep, intox, mental illness, coercion)
- by police trickery (shock conscience)
Why should police record confessions
Police should record or else
Trial judge can rule inadmissible on voir dire
Trier may be instructed as to lack of accurate recording when deciding whether to rely on confession
What if confession is mixed inculpatory and exculpatory
The duncan instruction is no longer to be given, whole statement goes in, fairly the subject of closing arguments by counsel and is for trier of fact to assesss
What are the major differences btwn confessions rule and RTS?
Difference Between the Confessions Rule and the Charter RTS
1.Different aims
Charter = limiting state power over individual
Confessions = evidentiary reliability
2. Confession must be shown voluntary by crown BRD, RTS must be established by defense on BOP
3. If RD is raised on voluntariness for confession then inadmissible, if defense establishes violation of RTS defense still has to justify exclusion under s24(2)
4.Confessions requires accused to believe they are making statement to person in authority. RTS is applicable to statements made to undercover cops actively eliciting statements.
5. Confessions rule is CL and can be overridden by statute. RTS is charter and can be used to challenge statutes compelling accused to speak to authorities.
6. Under confessions rule, any evidence found as result of confession couldnt be excluded on basis of confessions rule. RTS can be used to exclude derivative evidence under s24(2).
* should take a run at both
