Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Four): The Absence of an Apparent Reason to Lie Is a Neutral Factor When Assessing the Credibility of a Complainant

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Four): The Absence of an Apparent Reason to Lie Is a Neutral Factor When Assessing the Credibility of a Complainant

             …absence of evidence is not evidence of absence.

Carl Sagan, The Demon-Haunted World, First Edition, Random House, New York, 1995, at p. 213

The absence of an apparent motive to fabricate an allegation against an accused is a neutral factor when assessing the credibility of a complainant. As Trotter, J. states, speaking for a unanimous Court of Appeal R. v. Bartholomew, [2019] O.J. No. 2371, beginning at para 22:

…it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known…

… there is a "significant difference" between absence of proved motive and proved absence of motive… (citations omitted)

As Trotter, J. confirms at para. 25:

 …an absence of evidence of a proved motive…..was not capable of enhancing the complainant's credibility, as the trial judge did. At best, it was a neutral factor.

Other considerations:

There is no onus on the defence to establish a motive for the complainant to fabricate an allegation, but where such evidence exists, it may detract from the complainant’s credibility. As Trotter, J., states in Bartholomew, supra, at para. 21:

An ulterior motive, or a motive to fabricate, on the part of a complainant may be … important. From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations. 

 

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Draw Inspiration From the Work But Don’t Idolize the Individual

Draw Inspiration From the Work But Don’t Idolize the Individual

There is a natural tendency to want to connect with someone whose work we admire when the opportunity arises.

In some cases, the personal interaction may be a positive and rewarding experience. Other times, the exchange may be more challenging as we struggle to reconcile the public persona with the person behind the curtain. 

Draw inspiration from the work but don’t idolize the individual. 

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Storytelling Techniques for Advocates (Part One): Distinguishing Traits

Storytelling Techniques for Advocates (Part One): Distinguishing Traits

…When you have a lot of characters wondering around, you need to help your reader. …One of the ways I have always liked to do that is (through a technique) I call ‘funny hats’. …You give your character something that makes that character different from every other character in the book. …

Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 9, Dialogue and Character

When an alleged incident involves multiple parties, the judge or the jury has to keep track of the role of each individual. It is important to remember that the judge or the jury is hearing the account for the first time and does not know the case as well as counsel. Confusion results if it is not clear who a witness is talking about.

As the narrative unfolds, counsel may want to highlight a particular identifying trait that serves to make each party memorable during witness examinations. Just as authors use techniques to help readers remember different characters in a work of fiction, counsel may want to emphasize unique verbal or physical quirks to ensure that the actions of another party are not misattributed to their client.

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Advocacy (Part Ten): Always a Student

Advocacy (Part Ten): Always a Student

You are always a student, never a master. You have to keep moving forward. 

                                                                               Conrad L. Hall, Cinematographer, American Beauty

An advocate is always a student of the law. The law changes and evolves over time. We must be sensitive to what the law has been in the past, what the law is now and what the law should be in a fair and just society.

Our lifelong study, however, is not limited to a review of case law and legislation. Many of us leave law school naïve to the complexities of human behaviour. We discover in the early years of practice that we must also be students of the human condition and resist the appeal of simplistic narratives when dealing with complicated issues.

We are also continuing students of what it means to be a professional. The practice of law, like baseball, is replete with both written and unwritten rules that govern our conduct. We rely upon the feedback of mentors, friends and adversaries to recognize our blind spots. 

It is important to allow for reflection and self-assessment in our practices. Each time we revisit a particular issue we do so with greater understanding and sophistication. We modify and fine-tune our approaches over the years.

An advocate is an eternal student.

 (An earlier version of this post was originally published on August 15, 2016, under the heading ‘Criminal Practice Skills’.)

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Advocacy (Part Nine): Taking Ownership

Advocacy (Part Nine): Taking Ownership

When advocates make a mistake, they do not blame someone else. They accept responsibility for their actions and develop procedures to ensure that the error does not happen again.

Advocates strive to overcome their shortcomings rather than make excuses. They recognize that sanding their rough edges is a lifelong venture that rests squarely on their shoulders. 

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Advocacy (Part Eight): Showing Up

Advocacy (Part Eight): Showing Up

Advocates show up every day, whether they feel like it or not. 

Advocates recognize that some days will be better than others. They develop systems to offset the whims of motivation. They wrestle with their own mind on a daily basis – pushing through self-sabotaging thoughts that jeopardize their best efforts.

Regardless of what life throws at them, they stick to the schedule and consistently do the work.

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Advocacy (Part Seven): Preparation

Advocacy (Part Seven): Preparation

Advocacy demands diligent preparation, the extent of which may only be appreciated by practitioners and their families. 

 Every hour of trial time involves countless hours of pre-trial preparation, including:

·     Reviewing the disclosure materials;

·     Interviewing the accused;

·     Conducting any necessary defence investigation, including interviewing potential witnesses and visiting the scene;

·     Performing necessary legal research; 

·     Preparing trial binders;

·     Annotating transcripts for ease of reference during cross-examination; 

·     Memorizing all pre-trial statements to allow counsel to recognize when a witness is providing a different account on the stand relative to what was said before trial;

·     Drafting witness examinations and experimenting with sequencing of different topics;

·     Preparing the accused and other witnesses to testify; 

·     Preparing exhibits; and 

·     Drafting submissions. 

What may appear effortless to the casual observer belies the hard work that goes on behind the scenes. 

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Three): Repetition Does Not Enhance Honesty or Accuracy

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Three): Repetition Does Not Enhance Honesty or Accuracy

When assessing the testimony of a witness, the mere fact that the witness has said the same thing before trial does not indicate that it is an honest or accurate account - consistency, without more, is a neutral factor. As stated by a unanimous Court of Appeal R. v. Nault, [2019] A.J. No. 112, beginning at para 19:

Prior consistent statements are viewed with caution because there is a danger in associating repetition with reliability. The fact that a witness has said something more than once does not make it more likely to be honest or accurate… Therefore, as explained by David M. Paciocco, …the common law has developed:

... two important rules that apply even where prior consistent statements are admissible pursuant to exceptions. The first is the "prohibited inference." Even where a prior consistent statement is admitted, "it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth." The second is the "rule against corroboration." Even where a prior consistent statement is admitted, it is an error to treat the prior consistent statement as corroborating the in-court testimony. [citations omitted]

These rules and their rationales are sound and should continue to be respected. Any witness can lie twice or be mistaken twice. The mere repetition of a statement by the same witness does nothing to enhance its reliability. Even where an out-of-court statement is in evidence for the truth of contents, the trier of fact may not engage in either form of prohibited reasoning. He may not reason, without more, that because the witness has made the statement on a previous occasion, she is more likely to be telling the truth. He may not reason, without more, that a witness' out-of-court statement corroborates her own testimony. (emphasis added)

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On Interruptions

On Interruptions

My friend Bushnell Keeler…said an artist needs at least four hours of…uninterrupted time, to get one good hour of painting done. …Every interruption is like a knife stab in the middle of thought and getting into it. You have to start again. …It’s horrible. These days there are interruptions around every corner. Almost every second. 

David Lynch, David Lynch Teaches Creativity and Film, Masterclass.com, 2019, Lecture 4, Creativity and the Writing Process

Interruptions are the plague of modern professional life.

You do not have to be subject to the unrelenting intrusion of electronic devices – doomed to spend your waking hours being buzzed and prodded at the whim of others. 

If you want to produce anything of substance, you have to focus. This means creating a protective environment that insulates you from distractions – a space that allows you to collect your thoughts and to come up with creative solutions for difficult problems.

Close your door. Put away your cell phone. Turn off your e-mail.

Inform your office and your clients when you do not want to be disturbed.

                                                                     

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Advocacy (Part Six): Organization

Advocacy (Part Six): Organization

In the fray of trial, disorganization yields anxiety and frustration. Disorganization also fuels negative perceptions with respect to your competency. 

Every exhibit should be properly accounted for on a running exhibit log.

Every document has a proper place in a trial binder. Counsel should be able to locate effortlessly any necessary material.

Checklists are also useful for ensuring that counsel do not overlook important questions or arguments.

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Advocacy (Part Five): Composure

Advocacy (Part Five): Composure

Litigation is mentally taxing work. The court process involves a commitment by all parties to resolve contentious and emotionally charged disputes in a solemn setting. The stakes are often high and the outcomes uncertain. Demanding and difficult personalities come with the territory, along with stress and frustration. 

Through it all, advocates must maintain self-control.

A loss of self-control signals disrespect for the Court and the other parties involved. Counsel must keep their emotions in check and not succumb to temper tantrums or emotional outbursts.

Maintaining an even keel is also critical for staying focused. Litigation demands a steadiness of mind under pressure. Counsel cannot afford to be distracted by a loss of composure.

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Advocacy (Part Four): The Human Element

Advocacy (Part Four): The Human Element

The criminal justice system is administered by human beings, not computer algorithms. While the decision-making process for each actor is governed by defined core principles, there may be significant individual variation in their application.

Everyone brings a distinctive pattern of behaviour and way of thought to the exercise of their role. Each person has their peculiarities, preferences, strengths and weaknesses.

For the advocate, behavioural idiosyncrasies matter. Counsel must tailor their approach to take into account the human element when advocating on behalf of a client.

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Criminal Law and Literature: Ethan Frome (USA, 1911)

Criminal Law and Literature: Ethan Frome (USA, 1911)

I had the story, bit by bit, from various people, and, as generally happens in such cases, each time it was a different story.

Edith Wharton, Ethan Frome, Penguin Classics Deluxe Edition, New York, 1911, at page 1

At the turn of the twentieth century, a visiting engineer endures a harsh New England winter in a remote farming village. As he picks up his mail at the local post office, his curiosity is piqued by the striking appearance of Ethan Frome – a ruined, twisted hulk of a man whose grim expression conveys despairing resignation. After making casual inquiries with several locals, the engineer slowly begins to piece together the disturbing circumstances surrounding Ethan’s “accident” some twenty-four years earlier. 

Through the bleak setting of an impoverished and isolated rural farmhouse and an oppressive winter climate, Wharton examines the impact of our environment on our mental health. Ethan’s well-being is compromised by a lack of meaningful human connection and intellectual starvation. This is a theme that echoes for counsel regarding solitary confinement in our correctional facilities. 

The story is a case study of an emotionally abusive relationship. The manipulations of Ethan’s wife Zenobia serve as a stark reminder that harmful abuse may be psychological, as well as physical. The practice of law is as much about understanding human nature as it is mastering the law, and literature assists us in recognizing underlying patterns of behaviour. Zenobia is a prime example of individuals who use toxic psychological tactics to exert influence over others.

Wharton also reminds us that we have less control over our lives than we like to admit. As Ethan learns, life imposes burdens on us that are out of our control and influence the choices that we make. The neat and tidy narratives that we tell others are usually imposed after-the-fact upon the messier, more chaotic truth.

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Criminal Law and Literature: Do Androids Dream of Electric Sheep? (USA, 1968)

Criminal Law and Literature: Do Androids Dream of Electric Sheep? (USA, 1968)

…we stand between the Nexus-6 and mankind, a barrier which keeps the two distinct.

Philip K. Dick, Do Androids Dream of Electric Sheep?, Ballantine Books, New York, 1968, at page 141

A devastating nuclear war has triggered a mass extinction of animals and blanketed much of Northern California with radioactive dust. Most survivors have emigrated to off-world colonies, encouraged by the promise of a fresh start and a personal android to assist them with settling into their new environment. 

Some androids, however, have dreams of their own. Following a bloody rebellion, eight intellectually superior models have made their way to Earth in search of a better life, hiding in plain sight amongst the remaining human population. The only one standing in their way is Rick Deckard, a bounty hunter hired by the San Francisco Police Department to detect, and terminate, rogue androids.

Phillip K. Dick’s novel is a rich tapestry of philosophical ideas about the legal regulation of artificial intelligence and what it means to be human in the face of AI. Deckard realizes that the line between humanity and AI has blurred irrevocably as he develops romantic feelings for one of the next-generation androids.

Through the creation of false memories in AI, Dick considers the malleability of our own memory, and the fragility of identity when memory is manipulated or destroyed. Dick also encourages us to untangle our identity from our possessions and recognize the extent to which our actions are driven by concerns about what others think of us.

The androids’ limited four-year life span serves as a reminder of the transience of life. Their desire to seek fulfilment echoes our ambition to realize our aspirations before our little time is used up.

Other considerations

-      Dick’s novel was the basis for Ridley Scott’s landmark science fiction film Blade Runner (1982) and Denis Villeneuve’s worthy sequel Blade Runner 2049 (2017).

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Advocacy (Part Three): Courage

Advocacy (Part Three): Courage

Advocacy requires courage – a resilient steel-frame foundation beneath the exterior façade. 

Advocates hold the line with respect to the fundamental principles of the criminal justice system even when it is unpopular to do so. Advocacy is not a popularity contest nor an exercise in self-promotion.

Advocates are not deterred by aggressive behaviour. Advocates adopt psychological armour and are not distracted or intimidated by techniques designed to undermine their confidence. 

Advocates learn to accept fear and to push through it, rather than deny its existence. As stated by Neil Gaiman:

            …being brave doesn’t mean you’re not scared; it means you do it anyway. 

Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 2, Truth in Fiction

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Advocacy (Part Two): Accept the Uncertainty

Advocacy (Part Two): Accept the Uncertainty

Everyone has a plan until they get punched in the face.

                                                                        Mike Tyson

A criminal trial, like life itself, is an improvisation. 

When a trial begins, you are live on the air. You are responding in real time to a dynamic situation where there may be no clear course of action. Your pre-trial plan may have to be set aside when unforeseen issues arise. 

Litigation demands a high degree of comfort with uncertainty and an ability to adapt quickly to changing circumstances.

It also requires an acceptance that the best course of action may only reveal itself with the benefit of hindsight. 

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Advocacy (Part One): Developing Your Own Style

Advocacy (Part One): Developing Your Own Style

As with creative writing or playing an instrument, in legal advocacy you have to find your own voice.

Learn by observing others, but also recognize that imitation will only take you so far. You dilute what you have to offer by pretending to be someone else.

Advocacy allows for a wide array of personality types, as long as you are willing to ask the necessary tough questions. Develop an advocacy style that is consistent with your personality and your values.

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Legal Writing (Part One): Pay by the Word

Legal Writing (Part One): Pay by the Word

The first place that I start is …with the idea that instead of being paid by the word, I am paying by the word, that the fewer words I can use to tell my story the better, that compression, that economy, all of these things are good.

Neil Gaiman, Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 7, Short Fiction

Neil Gaiman’s advice is also applicable to legal writing. Words are a precious commodity, a valuable resource to be used only when necessary.

A written submission should be a succinct and precise analysis of the issues, not a meandering display of excess verbiage. 

Pay by the word – keep it lean.

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Improper Crown Opening Addresses

Improper Crown Opening Addresses

Defence counsel must be vigilant to guard against improper Crown opening addresses. At a minimum, an improper Crown opening will warrant a corrective instruction from the judge. In more egregious cases, a Defence application for a mistrial may be appropriate. 

When listening to the Crown’s opening address, Defence counsel may want to keep in mind the following comments from a unanimous Court of Appeal in R. v. Mallory, [2007] O.J. No. 236 at para. 338:

It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case… Simply put, "the Crown's opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call": R. v. Griffin at para. 31. At the opening of the trial the rules constraining the Crown "should apply with even more vigour" than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23. (citations omitted) 

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Final Submissions (Part Six): It's All About Reasonable Doubt

Final Submissions (Part Six): It's All About Reasonable Doubt

The crux of final submissions in a criminal trial is whether there is a reasonable doubt as to the accused’s guilt based on the evidentiary record.

It is useful for defence counsel to reiterate that the onus is on the prosecution to prove an allegation beyond a reasonable doubt. The starting point in the analysis is that the accused is presumed to be innocent. There is no burden on the defence – the accused is not required to testify nor to produce any evidence in response to an allegation.

The Crown must address any weaknesses in its case, and explain how the evidence is sufficient to quell any reasonable doubts. 

The Defence must articulate how the prosecution has failed to eliminate all reasonable doubts. In lengthy trials, it is helpful for defence counsel to keep a running list of specific points that raise reasonable doubts about the accused’s culpability. 

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