Dealing with False Confessions
As noted at the beginning of this chapter, the goal of ethical interviewing, questioning, and
interrogation is to elicit the truth, and the truth can include statements that are either inculpatory
confessions of guilt or exculpatory denial of involvement in a crime. Whenever an investigator
has interrogated a suspect, and a confession of guilt has been obtained, that investigator needs to
take some additional steps to ensure that the confession can be verified as truthful before it goes
to court. These additional steps are required because, although the investigator has not used any
illegal or unethical techniques, the court will still consider whether the accused, for some reason,
has confessed to a crime they did not commit. A skilled defense lawyer will often present
arguments alleging that psychological stresses of guilt or hopelessness from exposure to
overwhelming evidence have been used to persuade a suspect to confess to a crime they did not
commit. In such cases, it is helpful for the court to hear any additional statements made by the
accused, such as those that reveal that the suspect had direct knowledge of the criminal event that
could only be known to the criminal responsible.
In police investigations, there are many details of the criminal event that will be known to the
police through their examination of the crime scene or through the interview with witnesses or
victims. These details can include the actual way the crime was committed, such as the sequence
of events, the tools used in the crime; or the means of entry, path of entry/exit, along with other
obscure facts that could only be known by the actual perpetrator. There are opportunities in a
crime scene examination for the investigator to observe one or more unique facts that can be
withheld as “hold back evidence”. This hold back evidence is not made part of reports or media
release, and is kept exclusively to test for false confessions. Confessing to the crime is one thing,
but confessing to the crime and revealing intimate details is much more compelling to the court.
Regardless of the effort and care that investigators take to not end up with a false confession,
they still occur, and there are some more common scenarios where false confessions happen. It is
important for an investigator to consider these possibilities when a confession is obtained. These
situations are:
1. The confessor was enlisted to take the blame – On occasions where persons are part of
organized crime, a person of lower status within the group is assigned or sacrificed to take
the blame for a crime in place of a person of higher status. These organizational pawns are
usually persons with a more minor criminal history or are a young offender, as they are
likely to receive a lesser sentence for the offence.
2. The Sacrificial Confessor – Like the confessor enlisted in an organized criminal
organization, there is another type of sacrificial confessor; the type who steps forward to
take the blame to protect a friend or loved one. These are voluntary confessors, but their
false confession can be exposed by questioning the confessor about the hold back details
of the event.
3. The Mentally Ill False Confessor – This type of false confessor are encountered when
there is significant media attention surrounding a crime. As Pickersgill (2015) noted, an
innocent person may voluntarily provide a false confession because of a pathological need
for notoriety or the need to self-punish due to guilt over an unrelated past offences.
Additionally, those suffering from psychosis, endogenous depression, and Munchausen
Syndrome may falsely confess to a crime they did not commit (Abed, 2105). As with other
false confessors, these people can be discovered using hold back detail questioning.
Interviewing, Questioning, and Interrogating Young Offenders
Over the past century, with the Juvenile Delinquents Act (1908), the Young Offenders Act (1984),
and the Youth Criminal Justice Act (2003), there has been an increased recognition in Canada of
the need to treat young offenders differently than their adult counterparts. Recognizing the
special needs of youth, each of these acts moved to treat young offenders less punitively and
with a greater attention to rehabilitation. Further, under the Youth Criminal Justice Act (YCJA),
young offenders are regarded as a special category of suspect, and some very strict rules apply to
the process of arresting, questioning, or interrogating a young offender. For instance, the YCJA
requires the notification and inclusion of parents or guardians in situations where a youth is
being subjected to action for an investigation or a charge for an offence. As well, any young
persons must have their Charter Rights explained by the investigator with language appropriate
to their age and level of understanding. This means that the officer must talk with and assess an
accused youth to determine their ability to understand their rights before taking their statement.
The officer’s process of assessment will be questioned and examined by the court before any
statement made by a youth is admitted as evidence. During this examination, the court will
determine from the evidence whether the youth fully understood the rights being explained to
them. An officer presenting evidence of having conducted a proper assessment of an accused
youth should have notes reflecting the conversations and specific observations of the youth’s
responses to satisfy the court that adequate efforts were made to ensure that the youth did
understand their rights. Good evidence of understanding can be achieved by asking the youth to
repeat, summarize, or paraphrase their understanding of the rights that were explained to them.
In addition to the right to instruct counsel, as afforded to any adult under the Canadian Charter
of Rights and Freedoms, a youth must also be afforded the additional right of being given a
reasonable opportunity to consult with a parent or, in the absence of a parent, an adult relative or
any other appropriate adult chosen by the young person, as long as that person is not a co-
accused or under investigation for the same offence.
Further, in addition to this right, there is also an obligation on the police investigator to provide
independent notice to the parent of a detained young person as soon as possible. The requirement
for notice to the parent is a separate obligation for police, and it requires specific notification of
(a) the name of the young person, (b) the charge against the young person, and (c) a statement
that the young person has the right to be represented by counsel. If a parent is not available to
receive this notice, it may be given to a person whom the investigator deems appropriate. In the
case of some young people, this could be an older sibling, an adult caregiver, or, for those in the
care of Social Services, a social worker in charge of the young person care. In any case, these
requirements and others specific to young offenders are spelled out under Sec 146 of the Youth
Criminal Justice Act:
Youth Criminal Justice Act (Section 146)
(1)Subject to this section, the law relating to the admissibility of statements made by persons
accused of committing offences applies in respect of young persons.
(2)No oral or written statement made by a young person who is less than eighteen years old, to
a peace officer or to any other person who is, in law, a person in authority, on the arrest or
detention of the young person or in circumstances where the peace officer or other person has
reasonable grounds for believing that the young person has committed an offence is admissible
against the young person unless
(a)the statement was voluntary;
(b) the person to whom the statement was made has, before the statement was
made, clearly explained to the young person, in language appropriate to his or her age and
understanding, that
(i)the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings
against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in
accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence
of counsel and any other person consulted in accordance with paragraph (c), if any,
unless the young person desires otherwise;
(c)the young person has, before the statement was made, been given a reasonable
opportunity to consult
(i)with counsel, and
(ii)with a parent or, in the absence of a parent, an adult relative or, in the absence of a
parent and an adult relative, any other appropriate adult chosen by the young person,
as long as that person is not a co-accused, or under investigation, in respect of the
same offence; and(d) if the young person consults a person in accordance with
paragraph (c), the young person has been given a reasonable opportunity to make the
statement in the presence of that person.
(3)The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral
statements if they are made spontaneously by the young person to a peace officer or other
person in authority before that person has had a reasonable opportunity to comply with those
requirements.
(4)A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver
(a)must be recorded on video tape or audio tape; or
(b) must be in writing and contain a statement signed by the young person that he
or she has been informed of the right being waived.
(5)When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with
subsection (4) owing to a technical irregularity, the youth justice court may determine that the
waiver is valid if it is satisfied that the young person was informed of his or her rights, and
voluntarily waived them.
(6)When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the
youth justice court may admit into evidence a statement referred to in subsection (2), if
satisfied that the admission of the statement would not bring into disrepute the principle that
young persons are entitled to enhanced procedural protection to ensure that they are treated
fairly and their rights are protected.
(7)A youth justice court judge may rule inadmissible in any proceedings under this Act a
statement made by the young person in respect of whom the proceedings are taken if the young
person satisfies the judge that the statement was made under duress imposed by any person
who is not, in law, a person in authority.
(8)A youth justice court judge may in any proceedings under this Act rule admissible any
statement or waiver by a young person if, at the time of the making of the statement or waiver,
(a)the young person held himself or herself to be eighteen years old or older;
(b) the person to whom the statement or waiver was made conducted reasonable
inquiries as to the age of the young person and had reasonable grounds for believing that
the young person was eighteen years old or older; and
(c)in all other circumstances the statement or waiver would otherwise be admissible.
(9)For the purpose of this section, a person consulted under paragraph (2) (c) is, in the
absence of evidence to the contrary, deemed not to be a person in authority. (Government of
Canada, 2015)
Ancillary Offence Recognition
Criminal acts can be complex and persons committing crimes can be devious. For every law
prohibiting a criminal act, there are those who seek to avoid prosecution or to subvert the law
completely. Criminal law has evolved into the current model to reflect the different types of
crimes that are possible, and this evolution now includes laws known as ancillary offences. For
an investigator, part of the investigative skill set is learning to recognize the evidence and fact
patterns that constitute these ancillary criminal acts. These offences include:
• Conspiracy to commit an offence
• Attempting to commit an offence
• Being an accessory after the fact to an offence
• Aiding and abetting an offence
• Counselling a person to commit an offence
• Compounding an indictable offence
For any of these offences, an investigator needs to be aware of the types of information and
evidence that will support these charges. Sometimes an investigation will identify a suspect
participant where there appears to be a nexus of involvement to the crime, but that nexus is not
sufficient evidence of a criminal act to support an arrest or a charge. In these cases, an ancillary
offence may be appropriate.
Conspiracy to Commit an Offence
A conspiracy to commit any offence requires an agreement between two or more persons to
commit a criminal act.
Conspiracy Offence Criminal Code of Canada
(1)Except where otherwise expressly provided by law, the following provisions apply in
respect of conspiracy:
(a)every one who conspires with any one to commit murder or to cause another person
to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to
a maximum term of imprisonment for life;
(b)every one who conspires with any one to prosecute a person for an alleged offence,
knowing that he did not commit that offence, is guilty of an indictable offence and liable
(i)to imprisonment for a term not exceeding ten years, if the alleged offence is one
for which, on conviction, that person would be liable to be sentenced to
imprisonment for life or for a term not exceeding fourteen years, or
(ii)to imprisonment for a term not exceeding five years, if the alleged offence is one
for which, on conviction, that person would be liable to imprisonment for less than
fourteen years;
(c) every one who conspires with any one to commit an indictable offence not provided for in
paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as
that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d)every one who conspires with any one to commit an offence punishable on summary
conviction is guilty of an offence punishable on summary conviction. (Dostal, 2012)
The offence that is being conspired upon is called the “target offence”, and that offence does not
need to be carried out to constitute the offence of conspiracy. All that is required to establish the
offence of conspiracy is evidence that two or more persons conspired together and formed a
common intent to commit the targeted offence.
As an interesting side note to the conspiracy charge: if two persons conspire together to commit
any offence outside of Canada and that offence would be an offence if committed in Canada,
they may be charged with conspiracy (Government of Canada, 2017). In other words, two
persons may conspire in Canada to commit a murder in the United States, and, even if that
murder is not committed, they could be charged with conspiracy to commit murder.
Conspiracy opens the door to many possibilities where persons not otherwise chargeable may be
held accountable for their part in a criminal act or in a proposed criminal act.
Consider the situation where an armed robbery of a bank occurs and three suspects flee the scene
as police respond. The last suspect to exit the bank, William Tooslow, is stopped and arrested by
police responding to the alarm, but the other two suspects escape. As the investigation proceeds,
no additional evidence is found to identify the two robbers who escaped, but searches of Mr.
Tooslow’s cell phone reveal book messages and emails with another male, Iben Faster, where
plans to rob this bank were clearly being made over the past week.
Although there is not enough evidence to place Mr. Faster in the bank at the time of the robbery,
he could still be charged with conspiracy to commit armed robbery, while Mr. Tooslow is
charged with the actual offence of armed robbery. During an interrogation, a suspect may
attempt to minimize their involvement in the crime and admit only to participating in making the
plan. An investigator needs to recognize that this is still a chargeable offence.
Attempting to Commit an Offence
Like conspiracy, attempting to commit an offence does not require that the offence is committed.
Attempts – Criminal Code of Canada
24.(1) Every one who, having an intent to commit an offence, does or omits to do
anything for the purpose of carrying out the intention is guilty of an attempt to commit
the offence whether or not it was possible under the circumstances to commit the
offence. (Dostal, 2012)
Unlike conspiracy, attempting to commit an offence only requires one person planning the crime
to commit the target offence. For the offence of attempting to commit an offence to be
completed, there must be evidence to show that the accused went past the point of mere planning
and did something or omitted to do something in the furtherance of their plan. This attempting to
commit provision can be a useful strategic tool for investigators because it provides the option to
intervene before an offence in the planning stage takes place.
Consider the scenario where a suspect, Franky Yapsalot, tells a friend that he is planning to do a
home invasion at the residence of a wealthy local businessman on Saturday night. The friend
informs to the police and investigators conduct surveillance on Mr. Yapsalot. On Saturday night,
Mr. Yapsalot is observed wearing dark clothing and gloves and gets into his car with a sawed off
shotgun. As he drives into the residential area of the businessman’s home, police stop his car and
make the arrest. In this case, sufficient evidence would exist to make a charge of attempted break
and enter with intent to commit an indictable offence.
The offence of attempting to commit an offence can sometimes allow police to take effective
enforcement action and intervene before the target offence occurs, without endangering the
proposed victim of the planned offence. At the interrogation stage of an investigation, a suspect
wanting to minimize his culpability may admit to sufficient planning and action to make out the
offence of attempting to commit.
Being an Accessory After the Fact to an Offence
Accessory after the fact is another offence where a person can be charged with participating in a
crime, even if they were not directly involved in planning or carrying out the primary offence.
Accessory after the fact – Criminal Code of Canada
23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a
party to the offence, receives, comforts or assists that person for the purpose of enabling that
person to escape. (Dostal, 2012)
A person can be charged as an “accessory after-the-fact” to an offence, if evidence is discovered
to show that they knew that another person had committed the primary offence and they
received, comforted, or assisted that person to enable them to escape justice. An example of this
offence could be where a person receives a phone call from a friend asking to be transported and
hidden away after escaping from prison. If the friend complies with this request, they would
become an accessory after the fact to the offence of escaping lawful custody.
Counselling a Person to Commit an Offence
In this type of ancillary crime, the person providing the counseling becomes a party to the
offence if it is committed.
Person counselling offence – Criminal Code of Canada
22.(1) Where a person counsels another person to be a party to an offence and that other
person is afterwards a party to that offence, the person who counselled is a party to that
offence, notwithstanding that the offence was committed in a way different from that which
was counselled.
Idem
(2)Every one who counsels another person to be a party to an offence is a party to every
offence that the other commits in consequence of the counselling that the person who
counselled knew or ought to have known was likely to be committed in consequence of the
counselling.
Definition of “counsel”
(3)For the purposes of this Act, “counsel” includes
procure, solicit or incite. R.S., 1985, c. C-46, s. 22; R.S.,
1985, c. 27 (1st Supp.), s. 7. (Dostal, 2012)
Like conspiracy and aiding/abetting, it is not necessary for the person providing the counselling
to participate in the offence, and the offence does not even need to be committed following the
exact instruction of the counsellor. A condition to this offence is that the counsellor will only be
a party if they knew or should have known that the other person was likely to commit that crime
in consequence of the counseling. An interrogator recognizing this offence would seek to draw
out admissions of what the counselling suspect knew or should have known about the likelihood
of the perpetrator committing the offence.
