Sometimes you don't get all the information in the first statement. Analyse the evidence you do have, and if necessary take another focussed on the missing information.
Ask witnesses not to discuss their evidence with each other nor in each others' presence.
Don't ever put two witnesses to the same event in the same place to discuss their memories. Not during investigation. Not in preparation for trial. You undermine the testimony of each because it looks like a conspiracy between witnesses to get their stories to match.
A video recorded statement about the offence taken shortly after the offence may be admitted in evidence under the principled hearsay rules, or under s.715.1 or s.715.2.
When recording such a statement, an investigator should try for:
Try to take the statement shortly after the offence, when the victim is still affected by it. The sooner it is taken, the more likely it will be admitted in evidence.
A full inquiry into a sexual offender's activities may elicit information that a court would exclude from evidence.
A court can edit out portions of a recording which bear on inadmissible material, but this works best only if the edits occur near the end of the recording. In order to make the most of the interview, you may wish to canvass risky areas at the end, or make breaks in the interview to punctuate the dangerous parts.
| Rapport |
Who
are
the people in your family? Date, time, place |
| Commitment
to
the
truth |
Child:
What's
true?
What's a lie? Promise to tell me the truth. Adult: Public mischief warning; Oath |
| Relationship with offender | How do you
know the offender? What control or authority does the offender have over you? |
| Offences | What did he do
to you? Where? How? How many times? etc Did you see him offend against others? |
| History of complaint | Who are all
the people you told about the offence before me? What advice did you receive from them? Did you discuss your complaint with other complainants? |
| Unrelated bad acts | What other bad
things did you see the offender do? How did they affect you? |
| Leads in the
Investigation Hearsay |
Can you think
of anyone else the offender may have bothered? How do you know? What did the other people say about the offender? |
| Prosecution
of
the
offender |
What
do you think the judge should do to the offender? |
As you move down this chart, you move into areas that will cause problems in court for the admissibility of a videotaped statement. There are circumstances where even the material in the last row could be admitted -- but they are extremely rare.
Even if you think you know what happened, try to get the witness to describe it in his or her own words.
Although chronological account is easiest to comprehend, some
witnesses need to recount the most traumatic parts first. Some
witnesses save the worst for last, or even wait until later.
While it's necessary to elicit as much as you can, beware of trapping the witness who's not ready to tell all with the an all-encompassing question like "Did he do anything else?"
For victims or witnesses who are:
Preconditions:
This procedure used to be available only for sexual offences. It is now generally available.
What is a "reasonable time"? It depends upon the circumstances. If people could influence what the child says, then even a few days may be too long. If the child's complaint is safe from malign influences, then courts have admitted statements taken many months after the incident. L.(D.O.) (1993 SCC).
What is "adopts"? There are basically two ways a witness can adopt a statement. Either the witness remembers today what happened, and says that the statement is true, or the witness remembers giving the statement, and that he or she told the truth at the time. F. (C.C.) (1997 SCC).
When would a court exclude an otherwise admissible statement? As mentioned above, if the statement suggests that the accused is a bad man, without probing the offences, then a court may exclude the statement because it is prejudicial.
Even if s.715.1 does not apply, courts may sometimes admit the statement of a witness if:
See this page on hearsay for more.
Always try to take a statement from the suspect. Even if you expect a completely exculpatory statement.
It's amazing how often guilty people will change their version of events. This seriously damages their credibility.
One question which raises trouble in court is "Why is the complainant saying these things about you?". Although you can ask the question in your interview, generally speaking, the judge will exclude it and any answer from evidence. If you build your interrogation around this question, it may render the entire statement inadmissible. L.L. 2009 ONCA 413.
Corroboration is evidence which confirms an essential detail of the
offence - like DNA in the complainant's vagina confirms that intercourse
occurred. The law no longer requires corroboration before a judge
or jury is allowed to convict for sexual offences. s. 274,
s.659
But the burden of proof in a criminal trial is beyond
a reasonable doubt. Anything which confirms (or rebuts)
the accuracy and reliability of the complainant's account helps the
judge or jury figure out what to believe.
Obtaining a statement from a complainant or a suspect is not the end of the investigation, but the beginning. Investigate the details, especially the unusual ones.
Medical examination
Exhibits
Witnesses
Photographs
Obtain records to show
Useful sources of records include:
Provincial and Federal Privacy Acts include exceptions which permit the disclosure of many records without warrant to police officers engaged in criminal investigations.
In Sanichar, 2012 ONCA 117, a historical sexual complaint, the appeal court complained of an absence of evidence about what old records existed about the complainant.
In K.M., 2012 ONCA 319, the complainant's mother's memories of the complainant's childhood helped the judge determine whether to trust the complainant's memory.
Small children rarely have the vocabulary nor the life experience to describe or portray sexual acts with adults. On the other hand, small children do explore their own bodies. Therefore:
Historically, rape complainants were not believed unless they complained immediately. Therefore, the Crown was obliged to call evidence about what the complainant said after the incident. This ancient idea was rejected by legislation in 1983. s.275
The courts now say that they know there can be lots of reasons why someone might delay complaining. D.D., 2000 SCC 43.
This change in the law left a tension between two conflicting rules of evidence: the "rule against self-serving statements" excludes the words the complainant's first complaint; but the "narrative exception" allows the prosecution to explain who the complainant told, when she told it, and what happened as a result. A.J.B., [1995] 2 S.C.R. 413; Ay (1994), 93 C.C.C. (3d) 456 (BCCA).
Therefore, ask the complainant who s/he told. Ask those people:
Where the complainant delayed complaining, investigate why. Often, delay makes eminent sense:
For many sexual offenders, old offences shed light on new ones. Gathering the details of old offences - even non-sexual ones - can reveal much about a suspect. The rapist's old conviction for B&E might be for theft of underwear. The paedophile's old peace bond might have kept him away from a child.
These details may prove the case through similar fact evidence, or at least provide the prosecution with excellent information for sentencing.
When you conduct a non-consensual search, you must know what you are looking for, and why you think it's there.
Computers offer many resources to sexual offenders which leave
evidence:
| Chat |
communication
with victims |
logs of chats on suspect's and
victim's computers |
| email |
inbox and outbox of suspect's and
victim's computers |
|
| SMS |
telephones / Twitter / computer
files |
|
| Browser |
internet pornography |
browser history, temporary files |
| Filesystem |
pornography storage |
image files |
Computers can hold large quantities of private information. Be clear what authority you have to seize or search a computer or digital device.
Beware: many electronic devices are essentially computers: digital cameras, iPods and other music players, Backberries & cell phones. Stop to think before you act.
There are no fingerprints on bits. Linking the suspect to the data requires more than finding the data in the computer in the suspect's house:
In R.S.L. v. R., 2006 NBCA 64, the complainant spoke of a rape 14 years earlier by people known to her. Police obtained judicial consent for her to wear a wire and contact those people "for closure". She confronted them with her allegations, and they made some admissions which were admissible at trial. This technique has proved successful in other jurisdictions as well.
A "hit" from the DNA Databank is not admissible in trial. To prove a match with the suspect, you must obtain an independent sample. The "hit" is admissible in the ITO to obtain a DNA warrant. s.487.08.
The court can grant DNA warrants only for "designated offences", which are defined at s.487.04 of the Criminal Code. Current and past sexual offences are designated offences.
When executing such a warrant, take care to follow the steps required by s.487.07.
"Cast-off" DNA refers to bodily samples over which the suspect has
abandoned his rights to privacy. If the suspect throws a cigarette
butt away, or blows his nose and throws the tissue in the garbage, then
you can seize these items and analyze them for DNA. eg. Marini,
2005 CanLII 55694 (Ont. S.C.J.)
Prisoners don't control their environment. When a prisoner discards tissues, he may have had no choice where to put them. In these circumstances, the prisoner may not have abandoned his privacy in his bodily samples. Cast-off DNA from prisoners may not be admissible unless the prisoner enjoyed a real choice whether to abandon his privacy in it. eg Nguyen [2002] O.J. No 3 (Ont CA); Stillman [1997] 1 S.C.R. 607.
Surprisingly many suspects consent to the taking of their DNA sample, often on bravado "they won't think I'm guilty if I consent". Courts impose a high standard of voluntariness to this kind of consent. Consent should be:
| Voluntary |
Suspect/witness can say "no"
without fear of negative consequences like getting arrested. |
| Informed |
Suspect/witness knows what you
intend to do - where you're going to look, how much you're going
to search, and generally what you're looking for. |
| Revokable |
Suspect/witness can revoke consent
at any time, and knows it. |
| Authorized |
Suspect/witness has authority to
access the place you want to search. |
When you approach a suspect to obtain a DNA sample, consider preparing a script and a consent form, such as was done in Nicholas (2004 Ont CA) or Simon, 2008 ONCA 578.
If you approach someone close to the suspect, to obtain their consent to search for items which might provide DNA, be careful to determine what authority they have themselves to access the place you want to search.
Experts are not permitted to testify as to whether the child's complaint is true. However, appropriately chosen experts can explain:
| Medical | Whether injuries (or absence of injuries) are consistent with complaints. |
| Psychological | Why victims of sexual abuse:
|
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