The milieu is such that shame is reserved for the weak and a killer is to be embraced.
The Boss – ‘Mr. Big’ - is a person invested with enormous power in this lawless world who, according to the subordinate, will demand proof of the nominee ’s bona fides as a criminal to hold over him should he ever become disloyal.
The Boss must approve the candidate so a meeting with ‘Mr. Big’ is set up and what to tell him is well rehearsed.
The ‘truth’ to be told must be a confession to an unsolved crime.
The suspect is arrested and the key evidence against him is the confession to the undercover police officers.
Admissions of guilt are not always prompted by internal knowledge of guilt but are often motivated by external influences
“ I did it” may assume the damming form of a confession, but it may be the calculated lies of the determined job applicant or a desperate attempt to belong or even the repetition of facts drawn from other sources
Confessions are not always reliable
Jurors treat confessions as more probative than any type of evidence
False confessions are a significant cause of wrongful convictions
The extreme biasing effect of false confessions on the perceptions and decision making of all participants in the administration of justice is likely to lead to miscarriages of justice.
A false confession to any crime is both counterintuitive and self-destructive yet continues to be a key contributing cause to wrongful convictions.
Police and prosecutors rarely consider the possibility that a confession may have been mistakenly elicited or coerced, because they are reluctant to admit mistakes and are committed to the principle that innocent people do not falsely confess.
Retracted confessions are viewed with derision and the presumption of dishonesty can not be displaced.
The presumption of guilt set in motion in jurors and the administration of justice by a suspect’s confession is all but irrefutable even when the confession discloses no verifiable fact only known to the perpetrator.
Interrogation of a suspect can lead to a false confession:
Coercion or threats,
protection of friends or family,
promise of reward,
avoidance or ending physical harm or discomfort,
Fear or violence,
diminished capacity or mental impairment,
‘ dirty tricks’ – [ie. dressing up like a priest or lawyer]
In Regina v. White the Supreme Court of Canada focused on the issue of the coercive power of the state when a person is not detained. The Court identified four factors which compelled the exclusion of the statements (para. 53 – 55, 56 – 60, 61 – 62, and 63 – 66):
Existence of coercion – the Motor Vehicle Act compels a driver to give a statement to the police following an accident;
Adversarial relationship – the police investigating the incident put law enforcement interests against the right to silence;
Unreliable confessions – because of the prospect of a criminal conviction based on the coerced statement, there is a strong incentive for a driver to give a false statement to the police – even if the person is innocent. The Court held that a rule forbidding the prosecution from using such a statement at trial would “enhance, rather than impair, the effectiveness of the statutory reporting scheme”.
Abuse of power – police officers may well misconduct themselves including failing to seek independent evidence of the crime. Preventing abusive state action was a “major concern underlying the principle against self-incrimination”. The Court found that such abuse could operate “to circumvent or defeat a driver’s s.7 right to remain silent when under when under investigation for a criminal offence”.
The Court did not strike down the statute; it simply ruled that the elicited statements could not be used by the Crown to incriminate an accused at trial. Obtaining the evidence did not violate s.7, but its admission at trial would violate the Charter . Exclusion takes place by virtue of s. 24(1) of the Charter because the trial would be rendered unfair because rights would be violated by the police obtaining the evidence.
A coerced confession unencumbered by any substantive or procedural protections accorded an accused during a police interrogation infringes s.7 of the Canadian Charter of Rights and Freedoms and the elicited utterances must be excluded from evidence to be proffered at a criminal trial pursuant to s. 24 (2) of the Charter.
The “Mr. Big Technique” lays claim to the forensic value of “an admission against interest’ while debasing the coinage of confession. Everything that makes a false confession improbable and counter-intuitive is stripped away and replaced by powerful incentives to admit a crime, truthfully or otherwise. The trick circumvents both the common law protections against courts receiving unreliable confessions and the constitutional guarantee against unfairly obtained evidence. Are courts powerless?
The Supreme Court of Canada in Regina v. Swain held that courts of competent jurisdiction are not powerless to remedy the injustice that would be occasioned by the unprincipled formalistic adherence to unconstitutional judge made laws:
“ The Charter analysis here, because the appeal involved a Charter challenge to a common law, judge-made rule, involved somewhat different considerations than would apply to a challenge to a legislative provision … after the existing common law rule was found to limit the s. 7 Charter rights. It would be appropriate to consider at this stage whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.