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Manitoba Justice
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Recommendations
POLICE INTERVIEWS WITH SUSPECTS
- Tunnel vision
- Police notebooks
- Exhibits - whether filed in court or gathered in the course of the investigation.
MATERIAL LINKING SUSPECTS TO A CRIME
RAISING PREJUDICIAL ISSUES WITHOUT ADEQUATE EVIDENCE
ATMOSPHERE OF SUSPICION AS BETWEEN CROWN AND DEFENCE BAR
ESTABLISHMENT OF AN ENTITY TO CONSIDER AND REVIEW CLAIMS OF WRONGFUL CONVICTION
POLICE INTERVIEWS WITH SUSPECTS
- The evidence pertaining to statements given by an accused will always be of great importance in a trial. The possibility of errors occurring in manually transcribing a verbal statement by anyone other than a skilled shorthand reporter is great; the possibility of misinterpreting the words of the accused is great; and the possibility of abusive procedures, although slight, exists in those circumstances. That, coupled with the ease with which a tape recording can be made, make it necessary to exclude unrecorded statements of an accused. It is the only sure means of avoiding the admission of inaccurate, misinterpreted and false statements.
- I would recommend that videotaping of interviews with suspects be made a rule and an adequate explanation given before the audiotaping of an interview is accepted as admissible. This is to say, all interviews must be videotaped or, at the very least, audiotaped.
- Further, interviews that are not taped should, as a general rule, be inadmissible. There is too great a danger in admitting oral statements. They are not verbatim and are subject to misinterpretation and errors, particularly of omission. Their dangers are too many and too serious to permit admission. Tape recorders are sufficiently inexpensive and accessible that they can be provided to all investigating officers and used to record the statements of any suspect.
EYEWITNESS IDENTIFICATION
- The third officer who is present with the prospective eyewitness should have no knowledge of the case or whether the suspect is contained in the line-up.
- The officer in the room should advise the witness that he does not know if the suspect is in the line-up or, if he is, who he is. The officer should emphasize to the witness that the suspect may not be in the line-up.
- All proceedings in the witness room while the line-up is being watched should be recorded, preferably by videotape but, if not, by audiotape.
- All statements of the witness on reviewing the line-up must be both noted and recorded verbatim and signed by the witness.
- When the line-up is completed, the witness should be escorted from the police premises. This will eliminate any possibility of contamination of that witness by other officers, particularly those involved in the investigation of the crime itself.
- The fillers in the line-up should match as closely as possible the descriptions given by the eyewitnesses at the time of the event. It is only if that is impossible, that the fillers should resemble the suspect as closely as possible.
- At the conclusion of the line-up, if there has been any identification, there should be a question posed to the witness as to the degree of certainty of identification. The question and answer must be both noted and recorded verbatim and signed by the witness. It is important to have this report on record before there is any possibility of contamination or reinforcement of the witness.
- The line-up should contain a minimum of 10 persons. The greater the number of persons in the line-up, the less likelihood there is of a wrong identification.
Photo pack line-up
- The photo pack should contain at least 10 subjects.
- The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
- Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.
- Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
- The photo pack must be presented sequentially and not as a package.
- In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
- Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
- It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.
Trial instructions
- There must be strong and clear directions given by the trial judge to the jury emphasizing the frailties of eyewitness identification. The jury should as well be instructed that the apparent confidence of a witness as to his or her identification is not a criteria of the accuracy of the identification. (In this case, the evidence of Mr. Janower provides a classic example of misplaced but absolute confidence that Thomas Sophonow was the man whom he saw at the donut shop.)
- The trial judge should stress that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. It should be explained that the vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification. These instructions should be given in addition to the standard direction regarding the difficulties inherent in eyewitness identification.
- Further, I would recommend that judges consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification. This is certainly not junk science. Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors would benefit from the studies and learning of experts in this field. Meticulous studies of human memory and eyewitness identification have been conducted. The empirical evidence has been compiled. The tragic consequences of mistaken eyewitness identification in cases have been chronicled and jurors and trial judges should have the benefit of expert evidence on this important subject. The expert witness can explain the process of memory and its frailties and dispel myths, such as that which assesses the accuracy of identification by the certainty of a witness. The testimony of an expert in this field would be helpful to the triers of fact and assist in providing a fair trial.
- The trial judge must instruct and caution the jury with regard to an identification which has apparently progressed from tentative to certain and to consider what may have brought about that change.
- During the instructions, the trial judge should advise the jury that mistaken eyewitness identification has been a significant factor in wrongful convictions of accused in the United States and in Canada, with a possible reference to the Thomas Sophonow case.
INVESTIGATION OF SUSPECTS
- Tunnel Vision is insidious. It can affect an officer or, indeed, anyone involved in the administration of justice with sometimes tragic results. It results in the officer becoming so focussed upon an individual or incident that no other person or incident registers in the officer's thoughts. Thus, tunnel vision can result in the elimination of other suspects who should be investigated. Equally, events which could lead to other suspects are eliminated from the officer's thinking. Anyone, police officer, counsel or judge can become infected by this virus.
- I recommend that attendance annually at a lecture or a course on this subject be mandatory for all officers. The lecture or course should be updated annually and an officer should be required to attend before or during the first year that the officer works as a detective.
- Courses or lectures that illustrate with examples and discuss this problem should be compulsory for police officers and they would undoubtedly be helpful for counsel and judges as well.
- At the present time, officers, upon retiring or leaving the force, are required to keep their notebooks. This is unsatisfactory. At the Inquiry, evidence was given by conscientious officers that notebooks, which they kept in their homes after retirement, had been lost or irreparably damaged by fire or flood. This should not happen. The Municipality should be responsible for saving officers' notebooks. They should be kept preferably for 25 years, or at least 20 years, from the date that the officer leaves the force or retires. There are changes that occur in forensic science; witnesses emerge; or new physical evidence is discovered; and any of these elements may make a reinvestigation necessary. In those circumstances, the original notes would be of great importance. I realize that storage is a problem. However, the notebooks might be preserved by way of microfiche. In any event, storage should not become an insurmountable problem for the Police Service or the Municipality. The notes must be kept on file for the requisite time.
Exhibits - whether filed in court or gathered in the course of the investigation.
- These exhibits should also be stored for at least 20 years from the date of the last appeal or the expiry of the time to undertake that appeal. These should be preserved for the same reasons set out for the preservation of police notebooks. They should only be given to someone, such as an officer who investigated the crime, if a court order to that effect is obtained. Notice of such an application should be given to the Attorney General of the Province and to the accused. Exhibits should not be given to a police officer or former officer unless a court order has been obtained.
MATERIAL LINKING SUSPECTS TO A CRIME
- Whenever the police seek to link material at a crime scene to a particular geographic location or a specific manufacturer which, in turn, links a suspect to a crime, that material must be tested if a test can identify a specific location or manufacturer. The duty to perform the test lies with the prosecution, whether it be the police or the Crown. The failure to perform the test on the material in question constitutes a serious omission. As a consequence of that omission, evidence as to the material's location or provenance must be ruled inadmissible.
RAISING PREJUDICIAL ISSUES WITHOUT ADEQUATE EVIDENCE
- Crown Counsel should always maintain high standards of fairness in their role of prosecutor. That duty requires them to consider issues carefully and to exercise great restraint before raising an issue which will be highly prejudicial to the accused in situations where there is little evidence to support it. To do so may well result in an Appellate Court very properly finding that the trial was unfair.
ATMOSPHERE OF SUSPICION AS BETWEEN CROWN AND DEFENCE BAR
- It may seem trite but I recommend that regular meetings be held once or twice a year for the Crown and Defence bar. At those meetings, counsel on both sides could put forward their problems, discuss them and seek mutually satisfactory solutions to them. At some of these meetings, high-ranking police officers should attend and explain their position with regard to the issues raised. Some members of the judiciary and, perhaps, the media might be invited to attend occasionally so that all would be aware of the problems and could contribute to their solution. In that way, solutions satisfactory to all concerned could be reached. The entire administration of justice has too much at stake to permit any feelings of mistrust to fester and spread, thereby jeopardizing the ability of the courts to arrive at a fair and just result.
ALIBI EVIDENCE
- The alibi defence should be disclosed within a reasonable time after the Crown disclosure has been completed and the Defence has reviewed it and is in a position to know the case that must be met. When that disclosure should be made by the Defence will vary from case to case. It will obviously depend upon the extent of the Crown disclosure, how long it will take the Defence to review that disclosure and how quickly Defence Counsel can prepare the alibi evidence disclosure. To the extent that it is possible, the disclosure of the alibi evidence should be in the form of statements signed by the witnesses. Alibi evidence may well establish innocence and the Defence should spend all the time and energy required to put forward a complete and detailed position on the alibi evidence.
- How should the police investigate the alibi evidence? Obviously, it is incumbent upon
them to ensure that the alibi defence is credible. However, because of the importance of
the evidence, the same care should be taken in interviewing the alibi witnesses as is
taken with the interviews of suspect. That is to say, wherever possible, the interview
should be videotaped and, if that is not feasible it must, at the very least, be
audiotaped. The entire interview must be on tape. Anything which is alleged to have been
said that is not transcribed should be considered inadmissible.
The interviewing of alibi witnesses should be undertaken by officers other than those who are the investigators of the offence itself.
It has been suggested that it should be done by members of other police forces. However, this is cumbersome and may be unnecessarily expensive. If the interview is conducted by an officer other than one involved in the investigation of the crime itself and if the interview is videotaped or audiotaped, this will provide sufficient safeguards.
- The alibi witnesses should not be subjected to cross-examination or suggestions by the police that they are mistaken. The alibi witnesses should be treated with respect and courtesy. They should not be threatened or intimidated or influenced to change their position. However, I agree that it is appropriate for the police to instruct the witnesses that it is essential that they tell the truth and that a statement can be used as proof of its contents. The witnesses should be advised that they should be careful to tell the truth and of the consequences of a failure to do so.
- If, as a result of the disclosure of the alibi and the interviewing of the alibi
witnesses, the Crown deems it appropriate to conduct further interviews of Crown witnesses
expected to be called at the trial, a procedure similar to the interrogation of the alibi
witnesses should be followed. That is to say, if there is to be a further interview of a
Crown witness, it should be conducted by someone other than the investigating officers.
The police conducting the interview should make every effort to avoid leading questions or
questions which suggest the position of the police on the case.
4(a) It is essential that any further interviews of Crown witnesses following the disclosure of the alibi evidence should as well be videotaped or, if that is impossible, audiotaped. Every portion of the interview should be transcribed. Any statement alleged to have been made by the witness and which does not appear on the tape recording should be deemed to be inadmissible.
JAILHOUSE INFORMANTS
- As a general rule, jailhouse informants should be prohibited from testifying.
They might be permitted to testify in a rare case, such as kidnapping, where they have, for example, learned of the whereabouts of the victim. In such a situation, the police procedure adopted should be along the following lines.
Upon learning of the alleged confession made to a jailhouse informant, the police should interview him. The interview should be videotaped or audiotaped from beginning to end. At the outset, the jailhouse informant should be advised of the consequences of untruthful statements and false testimony. The statement would then be taken with as much detail as can be ascertained.
Before it can even be considered, the statement must be reviewed to determine whether this information could have been garnered from media reports of the crime, or from evidence given at the preliminary hearing or from the trial if it is underway or has taken place.
If the police are satisfied that the information could not have been obtained in this way, consideration should then be given to these factors:
Has the purported statement by the accused to the informant:
- revealed material that could only be known by one who committed the crime;
- disclosed evidence that is, in itself, detailed, significant and revealing as to the crime and the manner in which it was committed; and
- been confirmed by police investigation as correct and accurate.
Even then, in those rare circumstances, such as a kidnapping case, the testimony of the jailhouse informant should only be admitted, provided that the other conditions suggested by Justice Kaufman in his Inquiry have been met. In particular, the Trial Judge will have to determine on a voir dire whether the evidence of the jailhouse informant is sufficiently credible to be admitted, based on the criteria suggested by Justice Kaufman.
- Further, because of the unfortunate cumulative effect of alleged confessions, only one jailhouse informant should be used.
- In those rare cases where the testimony of a jailhouse informant is to be put forward, the jury should still be instructed in the clearest of terms as to the dangers of accepting this evidence. It may be advisable as well to point specifically to both the Morin case and the Sophonow case as demonstrating how convincing, yet how false, the evidence was of jailhouse informants.
- There must be a very strong direction to the jury as to the unreliability of this type of evidence. In that direction, there should be a reference to the ease with which jailhouse informants can, on occasion, obtain access to information which would appear that only the accused could know. Because of the weight jurors attach to the confessions and statements allegedly made to these unreliable witnesses, the failure to give the warning should result in a mistrial.
ESTABLISHMENT OF AN ENTITY TO CONSIDER AND REVIEW CLAIMS OF WRONGFUL CONVICTION
- I recommend that, in the future, there should be a completely independent entity established which can effectively, efficiently and quickly review cases in which wrongful conviction is alleged. In the United Kingdom, an excellent model exists for such an institution. I hope that steps are taken to consider the establishment of a similar institution in Canada.
