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Put the confession to the test

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A confession to committing a crime is probably the most powerful piece of evidence in a criminal case. When the accused, in one form or another, says "I did it" police, prosecutors, judges and juries have consistently and not unreasonably considered that the rest of the evidence is almost unnecessary because in the rational world, people don't admit to things they didn't do, especially when the stakes are so high in the criminal law. After all, the consequences of a confession often lead to a prison term. Who would confess and face prison unless the confession was true?

However, as the study of wrongful convictions has evolved, we've seen a disturbing number of cases in which convictions have been overturned because the confessions were false. Some studies suggest up to 25 per cent of wrongful convictions occur because of false confessions.

(These are not necessarily cases where confessions were beaten out of the accused or obtained through other oppressive means -- there are judicial safeguards that are supposed to prevent such confessions from being used in court because they are not considered voluntary.)

It turns out there are many different, complex and counterintuitive psychological factors that can lead to false confessions, and if we want to avoid the horror of not just imprisoning an innocent but also missing prosecution of the real perpetrator, then we have to be very careful about confessions, especially where there is no other evidence to support it.

Such is the situation in a case recently heard by the Manitoba Court of Appeal, ably reported by the Free Press's James Turner.

In that case, Michael Pearce was convicted of manslaughter by a jury where the only evidence against him was his confession. I don't know if this person is innocent and am not an advocate for his particular cause. He has a capable lawyer doing that. But I am very concerned about the integrity of the criminal justice system and the effect wrongful convictions can have on public confidence in it.

The trial judge had limited the scope of questioning of police by the defence lawyer who wanted to probe the interview technique used to get the confession. In addition, the trial judge prevented the defence from calling an expert who assessed the confession and concluded it was unsafe and may be false.

I read portions of the trial transcript. Having seen how the defence was not allowed to examine the full anatomy of the confession in order to give the jury a better basis to evaluate whether it was true, I have to hope the Court of Appeal will step in and set things right.

How the police interview suspects has become a highly developed process based on deep psychological considerations. We're not talking about a police officer sitting down and asking a subject to "tell me what happened."

In this case, something called the Reid technique was used. It is well-known this technique has produced both reliable and unreliable confessions. In fact, there is a lot of scholarly work and even judicial decisions that have criticized and identified the perils of the Reid technique and its connection to false confessions. If the essence of the Crown's case against the accused is a confession obtained via the Reid technique, then surely the reliability of that evidence must be subjected to a full scrub, including examination of any subtle manipulation that can occur through the questioning process. Any denial or limitation of this kind of questioning simply flies in the face of all that we know about false confessions and wrongful convictions.

Similarly, independent expert psychological evidence that can assist judges and juries to understand the things they should watch for in evaluating whether a confession is reliable must also be admitted into the case. The impact of a confession is huge, and if it's false, the accused has to be able to fully develop the argument on that point. These issues involve complicated psychological factors and are not pop culture.

Moreover, what exactly is the risk of hearing expert evidence? Someone's liberty is at stake so why wouldn't the justice system seek to have the most relevant information possible in deciding the matter?

Most concerning about the Pearce case is that fully stress-testing the confession didn't seem to be a shared interest of those we entrust to make the criminal justice system work properly in this trial. The law on the issues raised in the Pearce case varies across Canada. It is to be hoped Manitoba will become a place where our judges take an aggressive and open approach to the examination of false confessions.

None of this is to say the confessions by Pearce are in fact false and he shouldn't be convicted. But if the system is to convict him, it should do so properly, and if his confession was false and he isn't the perpetrator, then police should focus on who is.


David Asper is a Winnipeg lawyer and businessman.

Republished from the Winnipeg Free Press print edition December 19, 2013 A15

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