10 October

Behavioural Science on Trial

By: Byron Xavier Alvares, BA, JD

Central to the criminal trial is the determination, by the trier of fact, on issues of reliability and credibility. Now, science has permitted advancement and offers great assistance in many areas of our lives, including the courtroom. However, we must keep in mind that certain behavioural scientific methods are not so “scientific”, and can pose great dangers in the just determination of a trial.

I’m often asked by my non-lawyer friends, “why don’t they just give that witness the polygraph”, to figure out if they are telling the truth? The following will examine why certain behavioural sciences are not considered to be of assistance in a court of law.

Polygraph Test Result in Court

A polygraph machine is an instrument that measures and records physiological responses while the subject answers questions. It is said that false answers often produce distinctive responses that can be detected when compared to the reactions of the subject to control questions.[i] The polygraph is not a scientifically-based, nor a fully standardized procedure. Rather, the outcomes of polygraph examinations depend heavily on the examinee, examiner, and their relationship.[ii]

The use of polygraph tests have been a controversial topic in the law.  In R. v. Phillon[iii] the accused declined to take the stand under oath, but instead wished to call the polygraphist to testify that he had been lying when he confessed to the police. The Court held that the evidence was hearsay and inadmissible. If the statements had been made to the polygraphist alone, they would be clearly inadmissible. The mere presence of a polygraph machine was not enough to make them admissible. While “[t]here may be circumstances where such evidence would be admissible…in the present case such evidence was certainly inadmissible”[iv]. Thus, the Supreme Court left open the possibility of having polygraph evidence admitted in other circumstances.[v]

R. v. Beland[vi], closed off this possibility where the Court noted several evidentiary problems with admitting polygraph results into evidence aside from hearsay, including that it amounted to oath-helping, and was a violation of the character evidence rule. The Court stated that the opinion provided by the polygraphist is cloaked under the mystique of science and this would risk usurping the role of the trier of fact in deciding the credibility of a witness. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence.[vii] Furthermore, the Court held that admission of polygraph results would cause delays and complications in proceedings, which would not be balanced by any improvement in the degree of certainty in the trial process.

Polygraphs Outside Court

While Beland rejected the use of polygraph results as evidence in court, it has not diminished its usefulness as a confession-inducing device used by police.[viii] In R. v. Oickle[ix] the Court held that an officer administering a polygraph test can elicit a statement after the test which could be admissible if found to be voluntary. The accused was advised that the polygraph results were not admissible, while anything said was. However, the Court made clear that the mere failure to tell a suspect that the polygraph is inadmissible will not automatically produce an involuntary confession. The most it can do is be a factor in the overall voluntariness analysis.[x]

In Oickle although police exaggerated the accuracy of the polygraph test, merely confronting a suspect with exaggerated adverse evidence did not, in itself, render a confession involuntary.[xi] Furthermore, as seen in R. v. Chalmers,[xii] lying to a potential suspect regarding potential evidence they have against him is not necessarily considered improper. In Chalmers the accused consented to a polygraph test after the police lied to him about evidence they had against him regarding a homicide. Following the polygraph test, he was reminded of his rights and his tone abruptly changed. The police indicated that there was no doubt that he committed the murder and urged him to admit responsibility. Shortly thereafter, a confession was given in writing. However, the rights and cautions were not re-administered at this point.[xiii] Correspondingly, if the nature of the investigation does not change,[xiv] if the accused’s emotional state is not at issue, and if the confession is temporally close to the administering of one’s rights prior to, or immediately after a polygraph test, voluntariness will not be at issue.

Polygraphs: Considerations for the Defence

It is interesting to note that in R. v. Oickle[xv], the Court found that those in the accused’s situation would not be overwhelmed by the polygraph (regarding voluntariness). Yet, in the aforementioned cases, there has been recognition that a jury may be overborne by the scientific mystique of the test. In Oickel the Court opined that while a confession after a failed polygraph is irrelevant to its voluntariness and ultimately exclusion, it may suggest a prejudicial effect and diminish the weight afforded to the statement. As defence counsel, one may be able to use this point in conjunction with Arbour J’s dissent to their advantage. She stated that confessions should be excluded where the accused, because of the “intimate causal and temporal connection between a ‘failed’ polygraph and a subsequent confession, is unable to demonstrate fully the impact of the circumstances surrounding its making without inevitably introducing the polygraph evidence”.[xvi]

Other Inadmissible Behavioural Sciences

There are other behavioural sciences which have been ruled inadmissible. One such example is hypnosis. R. v. Trochym[xvii] applied the test for “novel sciences” developed in J.-L.J.[xviii] and held that hypnosis is not sufficiently reliable as a science for judicial purposes. All testimony by a witness on matters covered during hypnosis are presumptively inadmissible. This includes any new memories or details recovered by a witness through the procedure and to memories that a witness may have had before hypnosis if they are brought up during the hypnosis.

Similar to the polygraph, the inadmissibility of post-hypnosis testimony does not mean that hypnosis may not be used for other purposes.[xix] However, investigators must be conscious of the potential consequences of hypnotizing a witness given that even evidence that is not covered within the hypnosis session will be subject to increased judicial scrutiny and if admitted, must be accompanied by a caution to the jury.[xx]

Experts testifying on the dangers of eyewitness identification is another example of a behavioural science that has been ruled inadmissible. In R. v. McIntosh,[xxi] the trial judge was held to be correct in rejecting the proposed expert evidence and in his application of the test for novel science. It was said that the evidence was not essential and a reminder from the judge on the frailties of identification evidence was adequate, especially when incorporated into the standard jury charge. Courts have shown reluctance in abdicating their responsibilities to “experts” who testify on matters within the normal experience of the trier of fact. The Manitoba Court of appeal has taken McIntosh further by virtually taking judicial notice of its holding by stating that trial judges need not even provide reasons for refusing to admit the expert evidence given that it is well accepted that “educating the jury on the frailties of eyewitness identification was generally best left with the trial judge through strong jury instructions”.[xxii]

Some scholars have been critical of the Court’s reluctance to admit the evidence of the expert in McIntosh arguing that in most, if not all of the issues, the expert proposed to address would be outside of “the ken of the average juror” going well beyond the standard charge to the jury on the dangers of identification evidence.[xxiii] This point is well illustrated in scholarly literature on the flaws of eyewitness identification and its contribution to wrongful convictions. R. v. Miaponoose[xxiv] noted that psychological studies have revealed the inherent unreliability of this kind of evidence and that studies have confirmed “that fact finders do place undue reliance on eyewitness testimony in comparison to other types of evidence.” However, in R. v. Myrie[xxv] the Court stated that

“[t]he inherent frailties of eyewitness identification of evidence addressed at length in Miaponoose are hardly a novel development and were recognized in McIntosh. They will be recognized and made the subject of appropriate instructions to the jury in the present case. In sum,…Miaponoose [is not regarded] as [an] authority to support the introduction of expert opinion evidence as to eyewitness identification….”[xxvi].

So, while technology and science has come a long way, it is important to keep these lessons in mind as we forge forward, in considering how other new behavioural sciences ought to apply, and more importantly their limitations in the courtroom.

End Notes

[i] Don Macaulay, “Polygraph” (Lecture delivered to CML 3193 at the Faculty of Common Law, University of Ottawa, (3 November 2008)[unpublished].

[ii]Alan D. Gold, “Keeping Current: Some Post-Phillionic Flights of Polygraphic Fancy” Ontario Criminal Lawyers’ Association Newsletter, 6: 4 (January 1985) 5.

[iii] [1978] 1 S.C.R. 18.

[iv] Ibid at para 2.

[v] For example, an independent expert may have been able to conduct a polygraph test and conclude an accused is guilty. The crown could then potentially have the results admitted via distinguishing their case from Phillion on the basis that an adverse expert’s testimony is not self-serving hearsay and therefore admissible (see: L.H. Tepper “Admissibility of Confessions to Police Polygraphy Expert” Ontario Criminal Lawyers’ Association Newsletter, 7: 1, (July 1985) 14.).

[vi] [1987] 2 S.C.R. 398; One of the reasons provided by the Court for not admitting the results of the polygraph test were that it would be self serving and an accused could just polygraph-examiner-shop until he got a favourable result. Some scholars are critical of this reasoning given that an accused is free to do this with forensic psychiatrist and this is not considered oath helping (see Ron Nichwolodoff “Psychological Opinion Evidence in the Courts”, (1998) 6 Health L. J. 279-301).

[vii] Supra note 6 at para. 74.

[viii]Supra note 2.

[ix] [2000] S.C.J. No. 38.

[x] Ibid at 91.

[xi] Supra note 9 at para. 100; Recently,  R. v. T.E [2009] O.J. No. 4298 (S.C.J) grappled with the question of whether the police had been sufficiently clear and forthcoming in (1) telling the accused about the evidentiary purpose to which the polygraph results might be used, and (2) deceiving him regarding their ability to detect lies. The court concluded that any shortcoming or deception in this regard did not meet the high standard of “shocking” the community, and it could only be a factor in the overall voluntariness analysis.

[xii] [2009] O.J. No 1254 (Ont.C.A.).

[xiii] Chalmers can be distinguished from Amyot [1991] R.J.Q. 954 (C.A.), where the accused’s emotional disintegration rendered the statement involuntary and deprived him of the ability to appreciate the s. 10(b) caution. It was also distinguished from Paternak [1996] 3 S.C.R. 607, where it was clear that the status of the accused’s jeopardy had changed significantly.

[xiv] Read R. v. Black, [1989] 2 S.C.R. 138, and R. v. Schmautz, [1990] 1 S.C.R. 398) together. They stand for the proposition that the factual connection will be broken if the underlying offence to the investigation changes and the extent of the detainee’s jeopardy also changes as a result.

[xv] Supra note 9.

[xvi] Supra note 9 at para 147.

[xvii] [2007] 1 S.C.R. 239.

[xviii] R. v. J.(J.-L.), [2000] 2 S.C.R. 600.

[xix] In  R. v. Pritchard, [2007] B.C.J. No. 24, the accused underwent hypnosis in an apparent effort to revive his memory regarding the location of a body. However, here it did not prove helpful and its efficacy was disputed by a Crown expert in any event.

[xx] Some scholars are critical that e.g. in a situation where a witness may, under hypnosis, be able to provide information to help identify a suspect, such information may never be obtained because the police and the Crown will now be very wary of using the procedure for fear that it will taint all evidence by that witness (see Yu-Sung Soh, “The Taint of Post-Hypnosis Evidence and the Fallibility of Memory”, The Court, (26 April 2007), online: <http://www.thecourt.ca/2007/04/26/the-taint-of-post-hypnosis-evidence-and-the-fallibility-of-memory/>

[xxi] (1997), 35 O.R. (3d) 97 (C.A.).

[xxii] R. v. Woodard, [2009] M.J. No. 132.

[xxiii] Martin Peters, &Michael Lacy “R. v. Owen McIntosh & Paul McCarthy”, Ontario Criminal Lawyers’ Association Newsletter 18:3 (June 1997) 7. (The Court creates distinctions between evidence which would inform all witnesses, in this case with regard to problems of perception and recall, and evidence meant to make the testimony of a particular witness more understandable to the trier of fact, and thus, more believable. On the basis of this distinction, the Court would approve of expert opinion evidence relevant to repressed memory syndrome or battered spouse syndrome while denying the admissibility of evidence relevant to, for example, cross-racial identification. The authors go on to note that this distinction is arbitrary).

[xxiv] (1996), 110 C.C.C. (3d) 445.

[xxv] [2003] O.J. No. 1030 (Ont. Ct. J)

[xxvi] R. v. Myrie, [2003] O.J. No. 1030


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