All things human

I just finished watching an episode of The Fifth Estate about Interrogation Room techniques used on witnesses to break them down until they change their story….honestly it was very disturbing.  I did a bit of research on what our rights (in Canada) are when we are requested by the police to give a statement.  I found the following article:

What to do when the police want to talk to you
June 19, 2012 6:42 PM |
By THE NATIONAL
Part of our special report “Truth, Lies and Confessions”, June 24, 2012

Philip Campbell is a criminal defence lawyer and partner in the Toronto law firm of Lockyer Campbell Posner. Since 2003, he has done ground-breaking defence work in wrongful conviction cases, including the exoneration of Romeo Phillion, who was wrongfully convicted of murder in part due to a false confession. He has argued cases and consulted on the subject of Reid-style police interrogation techniques and the issue of voluntariness of confessions.

Q. How do I know when I am about to be, or am being, interrogated as a suspect by the police, as opposed to just being questioned? Does an interrogation only happen after an arrest?

A. There is no bright and identifiable line between a suspect and a witness. If the police have developed clear grounds to lay a charge and fail to inform you of your right to counsel and your right not to speak, they may then be acting unconstitutionally and there is a chance that a statement given could be excluded from evidence. But people often go from being witnesses to suspects in the course of an interview without being able to recognize it. This is not a transition the police are required to identify or announce and they may not recognize it themselves.

Q. What are my rights when the police start asking me questions?

A. If you are under arrest or detained you have the constitutional right to contact a lawyer (and to be informed of that right and given an opportunity to exercise it — though, it has been held, only once). You have the right to remain silent if you choose to do so, without negative inferences being drawn by a court from that choice. You have the right not to be subjected to questioning so coercive that your free will is overborne. But questioning by the police can be very aggressive, accusatory, prolonged, wearying and frightening without being unlawful.

If you are not under arrest, you have one right more important than any other — to say that the questioning is over and that you are leaving the police station. You will not be informed of that right but it is always available and only a desire not to displease or alienate the police prevents many interviewees from exercising it.

Q. What’s your advice to a person being interrogated, particularly an innocent person?

A. Never voluntarily subject yourself to a police interrogation where it is apparent you are a suspect or accused. If you are approached as a witness you can ask the police, on videotape, to confirm that you are being questioned only as a witness and that you are not in legal jeopardy. After an arrest, there is an enormous power imbalance. The police — hopeful of obtaining a confession, or damaging admission — will take advantage of your vulnerability, at least to the limits of the law. Your best choice is always to consult a lawyer and you have a right to free consultation with duty counsel.

I would never submit a client to a Reid Technique interrogation. It has, in my view, a powerful capacity to elicit confessions from innocent persons as it strips them of the ability to provide credible denials and to advance an innocent account of their conduct while subjecting them to relentless pressure. A technique that has such power to elicit a confession, while at the same time reducing its worth, is dangerous and deceptively convincing to a jury which can rarely understand why an innocent person, whatever the coercion, might say “Yes, I did it.”

Q. How, exactly, do I refuse to submit to an interrogation? What do I tell the police? And can I refuse to enter the interrogation room?

A. The best way to refuse to give a statement is to repeat, as often as necessary, “I do not wish to give a statement or answer questions.” Say that and nothing else — no explanation; no apology; no elaboration — just a simple, repetitive assertion of your right to remain silent. You will then be faced with innocuous questioning far from the core of the police interest. You should not fall into the trap of answering these questions because they will lead to more significant questions, and if you then assert your silence, that might actually be taken as a statement and look terribly guilty.

Under arrest you are within the lawful physical control of the police and refusing to enter the interrogation room is not a wise or useful strategy. Better to be in the room on tape if possible, repeatedly asserting your wish to remain silent.

There is a rationale for this and it is not the obstruction of lawful investigations. If you give a detailed, honest account of your actions, denying guilt of any crime, and are nonetheless charged, your convincing and heartfelt statement is unlikely to be heard by the jury. It is the prosecution, not the defence, which by law decides if a statement can be heard at trial. Thus, in a real sense, what you say to the police can hurt you, but not help you. And if you do have something to say which can decisively prove your innocence, there is little harm in telling your lawyer about it the next morning, letting the lawyer assemble the evidence, and then presenting it to the Crown who has complete authority over a case from the moment a defendant appears in a courtroom.

Q. If I tell the police that I don’t want to talk to them, do they have to stop asking me questions? That’s what the police do on the American cop shows.

A. No. Be careful here. The police do not have to stop asking questions when you say you want to remain silent. But they do have to stop when you ask to speak with a lawyer — at least the first time you ask. You and the police have, as it were, correlative and competing rights in the interview room. They have the right to keep asking and you have the right — without fear that it can be used against you in court — to keep declining to answer.

Q. If I am under arrest and brought in for interrogation, how long can the police keep me there if I tell them I don’t want to make a statement or answer questions? When, or how, can I leave as quickly as possible?

A. If you are under arrest that means the police have (or believe they have) reasonable grounds to believe you have committed an offence. At that point they are entitled to hold you and you have no right to leave. The police are required to bring you to court as soon as practicable and in any event within 24 hours. This means, in effect, that you can be held until the next morning and are subject to investigation during that time. The police may choose not to hold you if they decide they cannot make a case that will satisfy a Crown Attorney and – ultimately – a jury, or they may hold you. Either way there is an end in sight to the uncomfortable process of being interrogated and your safest course is to consult counsel and say nothing until you know more about your situation and the evidence against you.

Q. When do I need to contact a lawyer? Isn’t it expensive?

A. It is impossible to offer a formula for when you need counsel. Legal liability can arise in many unexpected ways. If you feel very nervous, it cannot hurt to ask a lawyer to speak with the police before an interview to find out the ground to be covered and to provide an experienced opinion on whether you face jeopardy. In police questioning you can probably tell you are at risk if you are being asked detailed questions about your activities; your relationship with a criminal or victim; your tastes or proclivities; or your location at a certain time. The same is true if you are asked to submit bodily tissues or fluids or to undergo a polygraph. These methods may be employed simply to screen large groups of people but it might be wise to consult a lawyer if you have any hesitation about such testing.

Duty counsel is free for persons under arrest or detention in Canada. But many lawyers will probably give you basic advice in a phone call from the police station, knowing that a retainer can’t be arranged in the time period when you need the advice and supposing that if a charge is laid you may turn to that lawyer for representation. Do not ask for, or accept, legal advice from a police officer.

Q. What if I have information or evidence that proves I’m innocent? Why not tell the police about it?

A. If you can prove your innocence, or you want to give an account, you can do that in your lawyer’s office. If you have concrete evidence, then give it to your lawyer. He or she can provide the evidence to the police or Crown and deal with them on an equal footing, possessed of complete rather than selective information.

Q. But if I don’t cooperate with the police by answering their questions, won’t that make me look like a suspect?

A. Yes, it may, and that contributes to the inequality. But it’s not a reason to talk to the police. People are too concerned about looking innocent to the police. You should worry mainly about how you appear to a court where decisions about guilt or innocence are made. People think they can get themselves out of an awkward situation by talking to the police, and too often, they are wrong.

Q. What about co-operating until you get the sense that the police aren’t believing your denials and continue to treat you as a suspect?

A. That is much worse than saying nothing at all. It’s very bad to give the police some information, and then stop talking. If the case goes to trial, the jury will see you as having stopped talking and infer there are subjects you can’t discuss because you are guilty. It’s better generally not to say anything at all.

Q. Doesn’t asking for a lawyer right away and refusing to talk turn me into a suspect, even if I wasn’t one to begin with?

A. It may. The police are free to become suspicious from the exercise of rights and some — not the best — will do so. But police suspicion is not your primary worry. It does not provide reasonable grounds to lay a charge and contributes nothing to the case for the Crown.

Q. What if I am guilty, or complicit in some way in the crime? Is there any advantage to me in providing information or confessing to the police?

A. There may well be. But generally there is no need to rush into becoming a co-operating witness. In serious matters it can be a life-altering decision. Discussing it with a lawyer is always a good idea; he or she will know how to negotiate a deal for favourable treatment by evaluating the worth of your potential evidence and documenting a deal that will be honoured by the Crown and police.

Q. The Royal Newfoundland Constabulary has chosen to adopt the PEACE model of interviewing. Would your advice to a client be different in that jurisdiction in light of the policy change in interviewing techniques?

A. I have not had experience with investigative interviews based on the PEACE model and hesitate to comment on its strengths and weaknesses. Its stated goals – honest and direct factual inquiries and a renunciation of coercion, trickery and the exploitation of vulnerability – are commendable and a possible antidote to abusive questioning and unreliable confessions. I think that along with a change in policy, real reform requires a change in police culture. It would be gratifying to see the courts encouraging reform rather than holding that traditional interrogation techniques are necessary and, therefore, permissible. Once judges are persuaded that psychological coercion is not essential to effective policing, they are likely to ban it.

As to the effect on the advice of lawyers, remember that it is rarely in the best interests of a client to face police questioning in a setting where the interview could create admissible evidence against him or her. That is equally so where the questioning is performed with finesse and a genuine concern to uncover the truth. So lawyers would be unlikely to advise clients to speak freely with an officer utilizing PEACE techniques. But the point of reform is not chiefly to make people willing to talk, but to conduct a better interview when, as usually happens, they do.

You can see the CBC episode on the Interrogation Room here

Comments on: "WHAT TO DO WHEN THE POLICE WANT TO TALK WITH YOU" (10)

  1. Thank you for your informative article. A few months ago I was momentarily detained by a five man one woman police patrol in West Edmonton Mall as I was photographing inside the mall on Europa Avenue. They five males positioned themselves around my on my right and the female officer was on my left side. She alone communicated with me.

    She bluntly asked me what I was doing there. I was standing there with a camera in my hand and wondered how I should answer her inquiry. I told her that I was taking pictures for my weekly blog assignment. I tried to defuse the tense situation and reached in my pocket to offer he a business card which would identify me as “harmless”.

    As I handed her the card I noticed the five officers draw nearer to me and place their hands on their holstered weapons. She read the card, smiled and then her confederates back away.

    My major concern at the time was surviving the experience without serving jail time.

    I guess sharks do hunt for the weakest prey.

    Liked by 2 people

  2. Anonymous said:

    Wow…that is just startling to me…I believe that I have rose coloured glasses on for a very long time. Very very sad and disturbing that these things happen in our country.

    Liked by 2 people

  3. This is good information that everyone should have. Once back when I was practicing law one of my partners who did criminal defense gave a talk to the entire firm. He said that if the police ever ask you if they can search you or your car for drugs or weapons (or for any reason for that matter) you should always refuse unless they have a warrant. One of my partners who, like me, practiced civil law, was incredulous. “If I’m not don’t have any drugs or guns on me or in my car, why should I say no to a search?,” he asked. Mind you this was a well-educated successful lawyer and a staunch political conservative. Yet he would allow a warrantless search of his person or car. Our rights are too important and have come and too great a cost to just toss them aside like that. Further, my criminal law partner (who had also served as a prosecutor for years) shared stories of police planting evidence. It doesn’t happen often, but it does happen.

    Liked by 1 person

    • Thanks so much Bill for the information. My eyes have definitely been opened. I always thought that if I am innocent, then I should just let the police search any where they want to. Good point you make

      Like

  4. Sounds like great advice, that could pretty much apply in the USA, also. Thanks for putting this information in your post, as I believe I’ve learned some new and potentially helpful things (in the unlikely event that I run afoul of the law).

    Liked by 2 people

  5. butchcountry67 said:

    I can tell you that Factually in Canada the legal system is designed against you, in Canada you are Guilty until Proven innocent, ( the whole idea that you are innocent until proven guilty does NOT apply here in Canada) interrogation is NOT always verbal, elevators get stuck between floors while you’re handcuffed between 2 police officers… if that happens you are guaranteed a beating (the elevator didn’t get stuck, they stopped it)… when you exit the elevator they will state you tripped and got hurt , they also like to restrain you and place a phone book against your stomach , they then beat on the phone book with either a billy bat (night stick) or heavy flashlight, it leaves absolutely no external marks, but is extremely painful and your midsection will hurt for hours afterwards. another trick ( used on me by the Calgary city police) is to put you in a holding cell with up to 16 other people, take you out an hour later then throw you in a small 4×6 cell directly across from the holding cell…. stark naked and leave you there for an hour or 2 , ( being thrown in a cell naked implies a sexual offense) ( I was arrested for possession of a controlled substance *weed* ) they then take you back out let you get dressed in front of everyone and take you to the interview room, if you refuse to talk they will throw you back in the holding cell and let the other detainees have at you ( they think you’re in for a sexual offense due to the nakedness earlier) … the police will keep taking you to the interview room and promise protection from further abuse in the holding cell if you talk.

    in Saskatchewan , the police are fond of “Starlight Tours” this happens primarily to the Native population, but whites get it as well, just not as often, a Starlight Tour usually happens in the dead of winter , they take your winter coat and sometimes your boots, drive you out to the country (usually about 5 or so miles from the city) pull over and make you get out *sans warm clothing* while hand cuffed… you walk back towards the city with them following behind in the car, after 10 or so minutes they will put you back in the car and ask if you wish to confess , this process is repeated under the threat of being left to freeze to death all the way back to the city limits, they also have been known to drive drunk people out into the country and just leave them there, and yes some have died from it.

    You would not believe the tactics used to extract a confession or to get you to rat out ( turn in) someone else ) it is a gray area of the legal system, that the police do capitalize on and use. … here is the catch…. video camera’s can be turned off, recordings lost or corrupted… the onus is on YOU the citizen to prove that the police did anything other than ask you questions, life gets very complicated if you accuse them of anything more than a simple questioning.

    Liked by 2 people

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