Legal Policy Issues:



          In the last few years, my colleagues and I have turned our attention to exploring how legal decisions mesh with the scientific literature relevant to those decisions, and the extent to which the protections built into the Canadian and US legal systems actually protect the innocent in court. We have published one paper (see Patry et al., 2009) exploring how the Supreme Court of Canada’s recent decision on the admissibility of hypnosis evidence was consistent with the scientific knowledge on the topic. In February of 2007, the Supreme Court of Canada issued its ruling in R. v. Trochym, a case in which the Court addressed the admissibility of post-hypnosis witness testimony. The holding by a majority of five Justices established a presumption of inadmissibility for post-hypnosis evidence that is very unlikely to be overcome. Although not a clear bar against this form of testimony, this ruling makes it extraordinarily difficult for such testimony to be admitted in the future. In our paper, we discussed the case, the relevant empirical literature, and implications for the Canadian psychology community, including some general recommendations for improved integration of psychology and law. Fundamentally, this decision highlighted that there is much psychology can do for the law, but psychologists must be willing to understand how the legal system considers evidence and expert witnesses. To get science admitted in the courtroom, psychologists must understand how the law and the legal system work.



          We have also explored the role of recent legal cases on the admissibility of confession evidence in Canada. Canada’s legal system recognizes that police interrogation procedures may contribute to false confessions and has provided safeguards designed to protect the rights of the accused and reduce the likelihood of these errors. Although it is difficult to determine how often false confessions occur we know they do occur. Thus, it is worth considering the extent to which legal protections are likely to be effective and the degree to which they address the relevant psychological issues that might increase the likelihood of a false confession. We have written two papers on the topic. The first two (Smith, Stinson, & Patry, 2009; 2010) were published in Psychology, Public Policy, and Law, and Law and Human Behavior. The papers focuse on the “Mr. Big” technique currently being employed by Canadian police forces. With this technique, suspects are embroiled in a criminal organization (really run by the police), commit several crimes, and are paid large sums of cash for little work. As they work their way up the organizational ladder, they are told they will be interviewed by the Big Boss, or “Mr. Big”. In order to get a highly sought after promotion, the suspects are told they must confess to a crime, often the one under investigation. Suspects are given substantial inducements and even threats to obtain a confession. Remarkably, this undercover (in that suspects do not know they are speaking to law enforcement officers) interrogation technique boasts a 75% confession rate and a 95% conviction rate when used (Gardner, 2004). However, it is likely that innocent suspects in these situations experience undue pressure to falsely confess. Our paper explored the nature of the Mr. Big technique, summarized some recent Canadian legal cases relevant to confession evidence (e.g., R. v. Mentuck), examined Canadian law and police practices in the context of different jurisdictions around the world, and discussed the scientific evidence relevant to the Mr. Big procedure.

In a another paper, accepted for publication in Psychology, Crime & Law we have done a thorough review of legal cases in Canada relevant to confessions and the admissibility of confession evidence in general (see Smith, Stinson & Patry, in press). The purpose of that paper was to explore some Canadian legal cases relevant to confession evidence (e.g., R. v. Oickle, 2000; R. v. L. T. H., 2008; R. v. Spencer, 2007), to analyze Canadian law and police practice in the context of the scientific evidence relevant to the legal landscape, and to provide recommendations for policy and practice. We also discuss directions for future research, and the ways in which psychological research could inform legal process and policy in the future.



          Importantly, our work has not gone unnoticed by the legal community. Marc Patry, Veronica Stinson and I have been asked to give talks and workshops to police, judges, prosecutors, defense attorneys, and law students to discuss what we know about confessions and media influences on the legal system. In addition, I have been asked on numerous occasions to give presentations on eyewitness issues to a variety of legal groups across the province. We have also been working on a project (led by Marc Patry) with the Nova Scotia Law Reform Commission to explore the public and the legal community’s perceptions of the Nova Scotia Small Claims Court system (see Patry Stinson & Smith, 2008).