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37631NCJRS.Pdf If you have issues viewing or accessing this file contact us at NCJRS.gov. , <-"c. .., "; '-I\,~' , : 11 . This ,tudv p,lpc'r, pr t'P,H t'i.j by til,· fI, ,dt'flCt' , Pr')lt'ct ~'l trw LdW f~t'tL': i'1l:"nH11ISSI,'!1 •.>t l~,H1,1lL1. I'; C!fCUi,ltt'd t,,, l',lrnmt'nt df1d (1'(,(ISm Tht' prl'!~hJS~lts lh) l'tOt ~t'pll'St.'tlt ftlt' \,It~\.\'~ ,1~ the C.' [1HI11"I,)I1. 1..- ." This mlcroflr.he rtas produced from documents rec(iJlvau for ., [. IncluSion In the MCJRS data base. Since iiCJRS cannot exercise :' centro! over ~!l!~ physical condition of the documonts submitted, j;:. -~: _ ,c,, the nillvlGuai hame quality i'Jill vary The resolution chart on tlll ~ .~ f a!l1f~ m" V be use rl toe valli ate the dI.l cum en t Qua lit Y. ,'":.'.•.... do :. .,~ •. r'., -~~TI ~'~ ';' [1 J III I 1.0 I !EV~DENCf. \ j \ ! I 5. COMIP!ElL~\B~l~TV or THE t~CCUS!ED 1111.1 18 I AND THE AIDM~SS~!8~l~TV or 11 111111. 25 11111~' .~_ H~S STATlEWHENTS r ,- ~, '," . ';""" ...... ,. ~,.. ,.- f,ilCfoiilming procedures used to create tilis fiche comply ('lith W) Tilt' L,m: Ht'hlrm C,)11Ifl1IS$IOn l1t l:,ll1add \'vdl\1t­ the standards set forth in 41CFn 101·11.504 ~lf dtdul !(lr c, 'r1H11l'nts IwfQt t' 1\1.3\ 30, 107 ~~. f ! r:?\ ~~..... \~;.j" Ali COli e~p()!1denct' Shl1llid bt' dddr t'ss,'d t". \;~.'.~""'.>' Mr. Jean Cott:" SL'CretdlV Points of vieH"J or opinions stated in this dOC[jliHlIit (Jf8 L1W Rt'fLlf m CornrnlssiLl!l of C,lIldd,l, '."""".'.""'~"'."" 130 Albp! t Str \'l't. those of the author!:;) and do not repreljent the official \ , ". Ottaw J, Ont,1f 10. position or policies of the U.S. Dep€Jrtment of Justice. ~ K1A OLe ~"'r)l'.'" ''.'./!:.. ··S '" U.S. DEPARTMENT Of JUSTICE "'J LAW ENfORCEMENT ASSISTANCE ADMINISTRATION JJIlU.1ry 1973 NATIONAL CRIMINAL JUSTICE REFERENCE SERVICE WASHINGTON, D.C. 20531 418 77 ) a , ; I I m e d -.-~~,-::. " A:.~ _T- '___ :.::",; 'Q..; _. ~," \ :'.1 : J \ LAW REFORM COMMISSION COMMISSION DE REFORME DU DROIT / EVIDENCE 5. COMPELLABILITY OF THE ACCUSED AND THE ADMISSIBILITY OF' HIS STATEMENTS A study paper prepared by the ~ Law of Evidence Project I January 1973 I. I 130 Albert Street I Ottawa, Canada I K1A OL6 ! I NOTA BENE This paper is the fifth of a series ~f eleven study papers prepared by the La~ of Evidence Project of the La~ Reform Commission of Canada. The first four papers deaZt ~ith: (Z) Compe tence and Compe l labi Ii ty ~ (2) Manner of Questioning Witnesses .. (3) Credibility .. and (4) Character. The next papers .. to be published during the course of this year .. ~iZZ be on: (6) Ju~iciaZ Notice~ (7) Burden of Proof and Presumption.. (8) Expert and Opinion Evidence .. (9) Hearsay .. (ZO) Documentary Evidence .. and (ZZ) PriviZeges. TABLE OF CONTENTS Page INTRODUCTION •.. '" ......•.. 0 • • • • • • • • • • • • • • • • • • • • • • • 1 Scope of the Paper .•••.....••••.•...•..•••.•• 1 Basic Dilemma in Criminal Evidence .....•.•... 1 Purpose of the Paper .•...••.••..•.••.••.•. ',' . 2 HI STORICAL SKETCH ...•.•••.•.....•.•••.•.•....•.•. 2 Compellability of the Accused ..••..••...•... 2 Admissibility of Statements •••••••••..••...• 4 PRESENT LAW •••••••••••••••••••••.•••••••••••••••• 5 Compellability of the Accused ..•.•.••..•.•.• 5 Admissibili tJ:' of Statements •••••.••....•.•. " 6 CRITICISMS OF THE PRESENT LAW ••.••.•••.••.•.••..• 7 Compellability of the Accused •...••......... 7 Admissibility of Statements •.•.•••••...•.... 8 PROPOSAL FOR A SYSTEM OF SUPERVISED ..QUESTIONING ..• 12 ARGUMENTS IN FAVOUR OF THE PROPOSAL .••..•.•••••.• 15 ARGUMENTS AGAINST THE PROPOSAL ..•••.•...••.•..••. 17 END NOTES ......................................... 22 INTRODUCTION Compellability of the Accused A number of rules of evidence apply uniquely to the accused person in a criminal trial. Special rules relate to the right of the accused to remain silent in the face of pre-trial questioning, the admission of out-of-court statements made by the accused, and the compellability of the accused as a witness at trial. Since these rules all relate to the questioning of the accused, and because they are designed to support the same interests, the Evidence Project decided that they should be considered together. Basic Dilemma in Criminal Evidence These rules of evidence form an important part of the rules of law that are designed to achieve a fair balance between the need to prosecute criminals effectively and the need to protect the innocent and ensure the moral acceptability of our criminal justice system. The elementary democratic values defining this balance are embodied in our Canadian Bill of Rights - which is largely a document of criminal procedure. Rights declared by that document include: due process of law, equality before the law, the right to retain and instruct counsel without delay, protection against self­ incrimination, a fair hearing in accordance with the principles of fundamental justice, and the right to be presumed innocent until proven guilty. Are these ideals achieved by our present rules of evidence concerning the admissibility of accused's statements and his right to silence? Those persons whose main concern appears to be the security of the state argue that the rules weight the balance too much in the accused's favour and consequently impair the effectiveness of the criminal justice machinery. Those whose main concern appears to be the protection of the innocent and the fairness of the system argue that the safeguards provided by the present rules are largely illusory and that they take advantage of the poor, the ignorant and confused. In studying these rules the Project began with the assumption that the ri<3hts of the individual should not be viewed as being opposed to the welfare of the state, but rather as being embraced within it. l We therefore recognized that while the aims of the criminal process are the prompt conviction of the guilty and the prompt acquittal of the innocent, it must accomplish thes~ aims with a minimal disruption of basic human values. The criminal process has always sought these ends, with varying degrees of success, anq has adopted various procedures over the years toward their magistrate. There'was apparently no time limit on the interrogation; the accused might be detained in gaol and accomplishment. In this paper we ask whether our current law re-examined after new evidence was obtained; the accused provides the best means of achieving our ideals. had no right to know the evidence of other witnesses against himi and the accused was not entitled to have Purpose of the Paper counsel with him during the questioning. Following the interrogation, the justice transmitted his record of the Wh~le th~ purpose of this study paper is primarily evidence to the trial judge and the compulsory examination to begin a dlScusslon about the adequacy of the existing law of the accused was read to the jury.6 While some commentators to focus that discussion the Project is here making a ' have argued that the procedure created b these statutes was proposal for a new procedure as a substitute for the current opposed to earlier coronlon law tradition, 1 the better opinion seems to bf. that the practice of interrogating the accused systeI:l. Th(.~ project hopes that the form of this paper does 8 not mIslead; the extent of the argument in favour of the had existeJ in England for some time prior to their enactment. proposal is to ensure a fair reaction to its merits and ~hould nol lead the reader to the conclusion that the Project Tl,is practice of questioning the accused prior to IS wedded to the proposal. trial fell into gradual disuse during the eighteenth century, and by the beginning of the ninetee~th the practice The format of the paper is somewhat different from had become limited to the recording of any voluntary other Project Study Papers. In particular we have not statements that the accused wished to make. 9 By statute inc lud(:d any prC?posed legislation: the proj ect has not agreed enacted in 1848,10 the change from inquisitorial examination on all. the detalls of the proposal and our final recommendations to preliminary inquiry was completed: the accused could be to the Commission will naturally be affected by your responses asked no questions; he was invited to make a statement if (Jnd by tlt(~ work of the Criminal Procedure Project on Pre-Trial he wished and cautioned that it would be taken down and might Procedures. We decided to distribute this Study Paper in its be given in evidence against him; the witnesses were examined prCsuDt form because we think it is essential that all in the accused's presence and could be cross-examined by him in~c're~ted persons be involved in the development or or his counsel. Ihis, of course, is the procedure now in 1 re~oc~lon of th~ pro~osal from the very outset. Not only is force in Canada. t.h.1S In conforml ty WIth the Law Reform Commission's stated policy ()f proceeding as openly as possible, but also this will enable Why did the procedures for questioning the accused the Evidence Project to benefit from a discussion of the change between the sixteenth and nineteenth centuries? One philosophy of the proposal. Moreover, if we eventually ~eason lies in the development of professional police which recomnlend to the Co~~issiJn a proposal similar to the one 'elieved the justices from having to supplement the deficiencies outlined. in this Study Paper, we anticipate that the ideas of the earlier constables untrained in the investigation of we receive will be useful to us in working out the details. crimes. 12 Another reason was the growth of the privilege against self-incrimination. 13 In the sixteenth and seventeenth centuries the accused was both competent and c~mpellable as a HISTORICAL SKETCH witness in the Ecclesiastical Courts and the Court of Star Chamber.
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