Should you talk to the cops?

The issue of whether you should ever speak to the police is very contentious in society. Apart from the moral civic duty question of whether one should agree to a polce interview request, the legal advisability question is another thing. Defense lawyers will always say "no", especially in the United States. Martha Stewart, notwithstanding, what about people who are completely innocent? In these two clips (h/t Adam Knisley), Professor James Duane presents a cogent case for why you should never speak to the cops, and a police officer (who is also a law student) speaks and agrees also:

I would love to hear from Canadian defense lawyers or police officers on whether any of this applies in Canada. (cross posted at the Western Standard)

Update: Over at the other blog, the comments suggested to me that I wasn't clear in the purpose of my post (no shock there). My purpose was to ask from a narrow legal perspective whether there the two linked videos had merit in Canada under its jurisprudence.

Comments

[Grant Brown]

The key issue is whether you are a suspect or just a witness. My understanding of Canadian law is that if you are only a witness, not a suspect, then the police will not read you your rights because they cannot use your testimony in Court, anyway (it would be hearsay). If you are a witness, the only interest the police have in your evidence is for investigative purposes, or to build their case in the event that the Prosecutor needs to subpoena you to testify in Court. So if you are not read your rights, you should have nothing to fear in speaking to the police (assuming you do not inadvertently incriminate yourself in one of the other 25,000 crimes on the books...).

The problem is very acute in cases of alleged intimate partner violence (IPV). As soon as one party makes an allegation to the police against the other party, the other party becomes a suspect and is well advised not to speak to the police, for all the reasons Professor Duane mentions. But this gives altogether too much power to the person who is the first to make an accusation; the other party cannot safely get their story heard. How can the police possibly get to the truth of what happened in a he-said-she-said situation when one party is effectively precluded from speaking?

My suggestion is that when investigating an alleged incident of IPV, the police should do all of their initial interviews deliberately without giving the constitutionally required warnings, so that nothing the parties say in these initial interviews can be used in Court. Only after they have developed a theory of the case based on all available information should they re-interview the ultimate suspect(s) with the proper warnings. That would almost certainly prevent a lot of false or vexatious allegations being pursued into Court.

I have often wondered about the constitutionality of Practice Note 8 in Family Law in Alberta. That Practice Note directs an automatic investigative process by a social worker and a police officer working in tandem as soon as an allegation of child sexual abuse arises in the context of a custody dispute. I once advised one of my clients not to speak to the police in the course of a Practice Note 8 procedure, for all of the reasons Professor Duane gives. As a result, no report could be produced to Court, as contemplated by the Practice Note. Justice Trussler said that as long as my client was unwilling to speak to the police, and as long as she had no report to go on, he would not get any unsupervised access. I pointed out that this in effect negates my client's constitutional rights, by holding his right to remain silent ransom to seeing his child; but Justice Trussler wouldn't make a ruling in the absence of a full-blown challenge to the Practice Note (with all the notices being sent to the Justice Ministers, etc.). She said that the initial purpose of Practice Note 8 was to protect parents from false allegations, and in fact over 80% of the reports came back as "unfounded." My client couldn't afford to finance a constitutional challenge to Practice Note 8, so he ended up talking to the police and was exonerated in the end. Not only did the police want to talk to him, they asked him to do a polygraph test, which he refused. His refusal was even noted in the report to the Court (as an indication of guilt?). When we went back before Justice Trussler, she asked why he had refused the polygraph test. I replied that a polygraph result is inadmissible in Court (and ipso facto, so should mention of a non-result); and anyway, if 80% of these investigations come back as "unfounded," then the better question is why the police don't require the person making the allegation to undertake a polygraph test in the first instance, to determine if there is even any reason to interview the respondent. The answer, obviously, is that the police are ONLY interested in catching the accused; they are NOT interested in determining that the accuser is guilty of perjury, making a false statement to the police, or obstruction of justice.

Professor Duane is right that you can never talk a police officer - or a prosecutor, for that matter - out of pursuing charges. I had a case where a client's wife had disappeared with their child, and he knew that three of her friends were sheltering her because he saw her vehicle around their homes and workplaces at various times. The mother successfully evaded service of Divorce papers, so we got an order for substitutional service on the three friends, and he tracked them down and served them. They made a complaint to the police that he was "stalking" them, and the police charged him. He showed the police and the prosecutor his order for substitutional service, which gives him the legal right to serve them with the papers they were assisting his wife to evade, but that made no difference. They wasted two days in Provincial Court at his criminal trial - examining and cross-examining the three women - before the judge threw out the case and told the prosecutor he was wasting everyone's time. This was at the same time as the provincial Prosecutor's Office was publicly complaining about not having enough lawyers and resources to deal with all the criminals in Alberta...

[Gareth Morley]

Defence lawyers suffer from a selection bias. The people who talk the police out of charging them never become their clients. Of course, police and prosecutors have limited resources and aren't usually interested in pursuing charges that have no chance of sticking.

[Edward Prutchi]

While the jurisprudence is not exacty the same the principal absolutely is. One of the toughest thing I ever had to do in a case is convince new clients NOT to run off and make statements to police. The root cause of the problem lies in the asymetrical informational situation the client finds him/herself in -- the police have a complete (or near complete) picture of the case at the time of the interview whereas the client knows almost NOTHING.

For a nice summary of the Canadain position, I invite you to check out our FAQ page in answer to the question "Why shouldn't I just go in and talk to the police". http://www.crimlawcanada.com/faq.html

[Marnie Tunay]

To Grant Brown: are you an American attorney? There are no constitutionally required warnings in Canada.

Marnie Tunay
Fakirs Canada
http://fakirscanada.googlepages.com/

[Grant Brown]

Marnie, have you never heard of R. v. Feeney (1997) 129 SCC?

[Stewie]

No, Grant, she probably hasn't. But it never seems to stop her from holding forth. Try googling her and you'll see what I mean.

[Marnie Tunay]

To "Stewie" - Since you are the one who is holding forth on a question to you have admitted you don't know the answer - hello, pot. (From now on I shall call you "Stewpot.")

Grant, I see three cases in the SCC database for 1997 cited as R. v. Feeney - is it one of these that you would like to talk about? (If not, why don't you PDF the case you are thinking of to me, because I don't see one cited as "129 SCC.")*
R. v. Feeney, [1997] 2 S.C.R. 13
R. v. Feeney (application), [1997] 2 S.C.R. 117
R. v. Feeney, [1997] 3 S.C.R. 1008

*My email address is: marnietunay@shaw.ca

[Marnie Tunay]

P.S. to Moin Yahya:
The posts on the U of A law blog have, to my mind, improved so much of late that I have done it the great honour of adding it to the short list of uber-bloggers on my spaceslive site:

http://fakirscanada.spaces.live.com/default.aspx

Upper right-hand corner.

Just thought you'd like to know, Moin, that I do notice the difference - (since I have complained in the past, and I haven't been nice to you about it.)
If the quality of posts goes down, or you stop talking about law, I'll bounce it from the list.

[MA Yahya]

Marnie

Thanks.

Moin

[Marnie Tunay]

Moin
You're welcome. I just noticed I accidentally included it in the list of my own blogs. I have put it in its rightful place one section below, titled uberbloggers.