Saturday, July 14, 2012

Resistence is futile: Reid Technique in action

R. v. Armishaw, 2011 ONSC 5624 is a good case for considering whether police interrogation techniques can lead to an inadmissible, and factually false, confession:

[59]           For the next portion of this decision I shall refer, seriatim, to portions of the "interview" in the order in which they played out. I shall refer to them mainly by transcript page number, in order for me to avoid having to repeat the entire interview, or most of it. In some cases I shall refer to the text.  After each portion, I shall outline any concerns I have with what took place, and then state my opinion of the "message" that the words are likely to have conveyed to Mr. Armishaw.   Naturally the "message" will be a cumulative one as the interview progresses.

[60]           When I state my view of the message, I state it in language intended for the audience of this decision.  I consider that the message is what Mr. Armishaw divined upon hearing Staff Sergeant Smyth speak.  That does not mean that I think that Mr. Armishaw could, then or now, articulate the message if he were asked to do so. However, I am more than satisfied that he got the message or messages, and, that at some subliminal level, understood their import.

[61]           At pages 6 to 10 Staff Sergeant Smyth informs Mr. Armishaw that he has a specialized knowledge and is a member of a very special police team.  The raison d'être of this team is to help the system distinguish between two kinds of offender, the cold-blooded killer and the nice guy who snapped.  This introduces the minimization - maximization technique used in the interview.  The cold-blooded killer is given different appellations at different times, like psycho child killer, or like the robber who shoots the shop-keeper in cold blood.  For ease of reference I shall simply say "cold-blooded killer". Similarly the minimized offender I shall refer to simply as the "nice guy who snapped".

[62]           At page 10, Staff Sergeant Smyth makes it clear that the crime has been solved and that Mr. Armishaw has been identified as the perpetrator.  Message:  This fact admits of no doubt.  This is a recurring theme throughout the interview. I shall refer to it as "resistance is futile".

[63]           The notion of futile resistance is apt.  One can hardly hear those words without being put in mind of "The Borg" portrayed in Star Trek, The Next Generation.  That civilization was known to overwhelm and assimilate entire other civilizations; in stating its intent the Borg collective always announced, "Resistance is futile".  When I compare Staff Sergeant Smyth's interview with the November 19 interview conducted by Detective Sergeant Gill, I observe a great difference in Mr. Armishaw's body language. For most of the Gill interview Mr. Armishaw sits in a forward stance, often with his hands on his knees.  He actively engages Detective Sergeant Gill.  In Staff Sergeant Smyth's interview, Staff Sergeant Smyth leans forward into Mr. Armishaw's space and engages him.  He speaks quietly and with authority.  There is no issue of shouting or brow-beating or badgering Mr. Armishaw.  The best words I can think of to describe Sergeant Smyth's demeanour and tone are "quietly relentless".  That approach to Mr. Armishaw is consistent with the notion that resistance is futile.  The consequence of this approach is that Mr. Armishaw backs up as far as he can.  He sits much more upright in his chair. The chair is placed near to the wall that blocks further escape.  To be sure, it would be more difficult for Mr. Armishaw to lean forward now that he has a cast on his arm.  That said, I do not believe that it was his cast that made Mr. Armishaw assume a different posture in the second interview.

[64]           At pages 10 and 11, Staff Sergeant Smyth refers to the lengthy investigation and suggests that Mr. Armishaw has been worrying about WHEN, not whether, he will be arrested. He makes a statement that he understands the pressure Mr. Armishaw was under when "you did this".  Message: resistance is futile.

[65]           At page 12 Mr. Armishaw first asserts the right to remain silent. "I got nothing to say to you". Considering Mr. Armishaw's vulnerabilities, I am sure that this statement took a great deal of courage.  It is not something he would think of unassisted.  He is making use of the legal advice he got.  What is the result?  Staff Sergeant Smyth utterly ignores the statement.  Message:  Telling this man I have nothing to say does not seem to impress him.  Staff Sergeant Smyth then says that he does not need Mr. Armishaw to say anything.  Again, this alludes obliquely to resistance is futile.  He mentions that the investigation is complete and begins the first of many references to expert or scientific evidence.

That's all been explained to us by the medical evidence and the experts and the -- and the CSI people who do their job and they do it very well, okay?  That evidence is all there.  All right?  There's no issue about what happened.  There's no issue about the fact that you're the one that caused these injuries to Jaydin, okay?

[66]           There is much discussion in the cases about manufactured evidence, false evidence and fabricated evidence.  The Crown has argued that no actual misrepresentation of fact was made; no false pretence can be proved against Staff Sergeant Smyth.  All he has done, it is argued, is to exaggerate the effect of the evidence he has.  In the context of this interview, I reject that argument.  Staff Sergeant Smyth's reference to the evidence that he had surpassed mere exaggeration by a country mile.  He had in fact no evidence of identification of the perpetrator.  Period. That was a fact.  He told Mr. Armishaw repeatedly that the expert, medical, scientific and/or CSI evidence accumulated by police over a lengthy investigation, identified him as the perpetrator beyond the shadow of a doubt.  That was a lie.  It was meant to be a lie.  It does no credit to Staff Sergeant Smyth's testimonial honesty that he refused to admit that it was a lie.  Oickle makes it clear that the mere presence of trickery or an allusion to false evidence is not necessarily fatal to admissibility.  Oickle also makes it clear that the technique is dangerous; that the use of such techniques can easily cross the line of what is permissible.  The analysis is a contextual one.  It is fact-specific.

[67]           Message:  all of the above statements further reinforce that resistance is futile.

[68]           At pages 12 to 13, Staff Sergeant Smyth conveys understanding and sympathy for the pressure Mr. Armishaw was under.  He paints the scenario of Mr. Armishaw's unfaithful partner who leaves Mr. Armishaw to cope with a child, who is not even his own.  Only male officers serve in his unit, because female officers would not understand.  Male officers want to minimize the "grief" they will cause to Mr. Armishaw. Message:  this implies that his unit, i.e., the police have it within their power to minimize the grief, i.e., the sanctions or consequences that will be caused to Mr. Armishaw.

[69]           At page 13, he tells Mr. Armishaw that the time has arrived for him to accept responsibility after 8 months of waiting.  He says police are not here to judge Mr. Armishaw.  Message:  this statement implies both understanding and that the police have it in their power to judge him but will not.

[70]           At page 14 of the transcript Staff Sergeant Smyth says:

Okay, I've got two boys of my own, all right?  And I can remember when they were first born and when they were young infants, all right?  And I didn't have nearly the stress going on in my life that you had and it was a tough go.  The toughest thing I've ever had to go through in my life.  And that's why I got into this line of work. 

There's all sorts of things I can do as a police officer.  I've got all sorts of opportunities to me, okay?  But the reason I started getting into this line of work is because I wanted people to understand that you should not be treated the same by the justice system as that guy who walks in and shoots that poor innocent shopkeeper in the face.  Wouldn't you agree?  Okay?

[71]           Staff Sergeant Smyth continues to try to forge a bond with Mr. Armishaw by identifying with his difficulties.  He says he has been through the same ones though not as bad as Mr. Armishaw's.  Then he says that that is the very reason why he got into this line of work.  What is the line of work?  To make people understand that you, i.e., the nice guy who snapped, should not be treated like the cold-blooded killer.  Building on the minimization - maximization technique, he implies that a police officer has "all sorts of things he can do"; he has "all kinds of opportunities" to promote understanding for the nice guy who snapped.  The message: he and/or the police have the power to see to it that the nice guy who snapped is not treated like the cold-blooded killer.

[72]           At [ages 14½   to 15½ he repeats that he understands that Mr. Armishaw is the nice guy who snapped.  But as he continues the analogy he asks

Now, I could be wrong here, Cory.  I could be looking at a guy who maybe you are a little more cold-hearted than I've -- I've seen in the file, okay?  Maybe you are the kind of guy who was out there thinking, you know, "one day I'm going to take this kid and I'm going to -- I'm going to teach the kid a lesson by -- by doing this to the kid".  But I really don't think that's the case here, okay?  I mean, I could be wrong.  Maybe that's who I am dealing with, maybe that's who I'm sitting across from right now but I don't think that's the case at all.  Okay? 

[73]           Staff Sergeant Smyth here sows the seeds of doubt that Mr. Armishaw is the nice guy who snapped.  He might be wrong and he sets the stage for a maximized version of events that paints Mr. Armishaw as the cold-blooded killer.  He says:

But the key difference between you and the guy who walks in and shoots that shopkeeper in the face, is you're somebody who can take responsibility who can stand up and say, "I made a mistake".  That's who I think you are.  Now, if I'm wrong, so be it.  Okay?  But I'm rarely wrong in these cases.  I've been doing this for a long time. 

This is the time to stand up and take some responsibility, Cory.  Okay?  The guy in -- in the store, the shopkeeper, he's not taking responsibility.  If I was dealing with him tonight instead of you, he'd be telling me to screw off because he doesn't care about anybody but himself. 

Staff Sergeant Smyth gives Mr. Armishaw the means to demonstrate how he can be seen as the nice guy who snapped.  He tells Mr. Armishaw that the nice guy who snapped is the one who admits his mistake and owns up.  The message:  the only way in which Mr. Armishaw can be assured of being seen as the nice guy who snapped is by owning up. Left unsaid but understood is that the only way in which he can own up is to admit what he did; to admit his actions involves speaking to Staff Sergeant Smyth, i.e., giving up the right to remain silent.  The alternative is to tell Staff Sergeant Smyth to "screw off".  Message:  to remain silent, is to become, in Staff Sergeant Smyth's eyes, the cold-blooded killer.


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