Voluntariness Voir Dire (Model Examinations)

From Criminal Law Notebook
Jump to: navigation, search

Voluntariness of Statements of Accused

Proving voluntariness of the accused's statement comes from the evidence of the police officers handling the accused before and during the statement. The evidence should cover the officers interactions and observations with the accused, focusing on the accused's physical and mental state as well as any communications that would suggest inducements to give evidence.

Witnesses used may include:

  • arresting officer
  • officers with incidental contact
  • transporting officers
  • jailers / sherriffs
  • interviewers / monitors
  • officers who strategized the interview
  • experts who can speak to physical or mental symptoms of accused

See Voluntariness for details on the law.

Officers' evidence

Areas of Questioning Comments

Background

  • identify Cst. by name, current rank, jurisdiction, current assignment, duration of employment as a peace officer
  • confirm whether working and on duty on offence date and at offence time / confirm specific assignment at the time
  • officer's training or experience in taking statements from accused

Reason to Come in Contact with Accused

  • confirm that officer made contact with an individual by the name of the accused / confirm if person is in court today
  • determine how officer was able confirm the identity of the accused
  • the cause of the officer coming into contact with accused
  • time when first made contact

Contact with Accused Prior to the Commencement of the Statement at Issue

  • Discuss what happened at initial contact / details on interaction
  • was officer in uniform / was accused informed of identity as police / informed accused of reasons for contact (investigation)
  • total duration of contact with the accused up until the statement
  • conversations between officer and the accused prior to the statement / made note of them
    • in typical practice, what sort of information do you try to elicit or tell to the accused
  • other officers present at the time / who / how long / did they interact with accused
  • conversations between any other officer and the accused prior to the statement / made note of them

Cautions Given

  • Did you give any caution or warning (right caution, police warning, secondary warning) / why or why not? / if so, read verbatim into record

Condition of the Accused Up to Statement

  • what was the accused attitude like at the time?
    • what was his reactions to you?
    • did you see any signs that he had difficultly understanding you?
    • did you see any signs that he had difficultly communicating to you?
    • noted signs of impairment by drug or alcohol
    • noted any signs of physical or mental health issues
    • the anything else of his demeanour / mood / physical condition

Inducements or Oppression

  • prior to the accused statement did offer to do anything for the accused?
  • Was their any request for him to do anything for you?
  • prior to the accused statement did suggest what would happen to the accused?
  • duration of time the accused was left in custody?
  • any requests for food / water / medicine / treatment / heat

Oral Statement

Areas of Questioning Comments

Context of Utterance

  • During the contact with accused did he make any statements to you? / when was the statement made? / were you in uniform at the time?
  • what was your proximity to the accused?
  • was anyone else present?
  • was the statement in response to something said?
  • was the statement in response to something that happened?
  • was the statement spontaneous?
  • [if response to question]
  • what was the question?
  • what did he say in response?
  • [if response to an action]
  • what had occurred to prompt the response?

If Reduced to Writing

  • upon hearing the statement was it recorded in any way? / when / how accurate
  • did accused get a chance to review it? / did he offer the accused to sign it?

Audio Recorded Statement

Areas of Questioning Comments

Context of Utterance

  • During the contact with accused did he make any statements to you?
  • What was the location at time of recording?
  • Was anyone else present?
  • What was said before the recorder was started?

After Playing the Audio Recording in Court

  • authenticate identities of voices in recording
  • authenticate questions recorded as questions that were asked
  • authenticate answers recorded as answers that were asked
  • confirm of time and date of recording
  • confirm there were no edits or breaks in the recording

Video Recorded Statement

Areas of Questioning Comments

Context of Utterance

  • During the contact with accused did he make any statements to you?
  • What was the location at time of recording?
  • Was anyone else present? / Was anyone else monitoring the interview?
  • What was said before the recorder was started?
  • What time was the recorder started?

After Playing the Video in Court

  • authenticate identities of persons in recording
  • authenticate questions recorded as questions that were asked
  • authenticate answers recorded as answers that were asked
  • confirm accuracy of time and date of video
  • confirm there were no edits or breaks in the video

<at the end of the voir dire you may wish to seek to have the evidence of the voir dire apply to the trial proper>

Accused's Evidence

  • whether he knew that he was talking to a police officer
  • whether he knew his statements could be used in court against him
  • the demeanour of the officers
  • officer's willingness to attend to accused's needs
  • whether he was given good, water, clothes, medical attention, blankets, heat, etc.