Relationship between Polygraph, Right to Counsel, and Confessions: R. v. Chalmers (2009) 1 Ontario Court of Appeal By Gino Arcaro M.Ed., B.Sc.

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1 Relationship between Polygraph, Right to Counsel, and Confessions: R. v. Chalmers (2009) 1 Ontario Court of Appeal By Gino Arcaro M.Ed., B.Sc. I. The polygraph paradox A polygraph test is both part of the interrogation process and a separate, specialized interrogation strategy. In some investigations, it is the entire interrogation. In others, the polygraph test is one stage of a questioning pathway. Polygraph tests are usually scheduled when only mere suspicion connects the suspect to the crime. The accused attends the police station by consent as a suspect, not under arrest. Although the right to counsel is required by law only after a person is detained or arrested, suspects consenting to a polygraph test are usually informed of the right to counsel before the test even though this is not required by law. The inadmissibility of polygraph test results, combined with the consent requirement form a complex relationship between the test and confession admissibility. A crucial part of this complicated relationship is the right to counsel. In most cases involving a polygraph test, where a confession is obtained, the accused s status changes. After a confession is made, the officer s belief changes to reasonable grounds, changing the accused person s status from a voluntary visitor to an arrested person. The question becomes, Is the original right to counsel before the confession sufficient or does the right to counsel have to repeated after the confession? In March, 2009, the Ontario Court of Appeal, in R. v. Chalmers answered the question by ruling that the original right to counsel is generally sufficient under certain circumstances. In this case, the right to counsel did not have to be repeated. The ruling explains strategies that prevent sec. 10(b) Charter violations in polygraph cases. II. Circumstances Offence: second-degree murder Summary: The accused person was charged and convicted for killing his wife, 15 years after the offence occurred. The victim had been found dead in a rural side road ditch, her horse running loose nearby. At the time, the police classified the death as a riding accident. The case was re-opened when the original detective was cleaning his desk and found photos of the victim s body. A colleague, who was a horse rider himself, reviewed the photos, questioned the accidental death theory, and re-opened the case as a homicide investigation. The victim s husband became a suspect and was asked to take a polygraph test. He voluntarily attended the police station. During the interview that preceded the actual test, the accused confessed that he killed his wife. Additionally, he agreed to write 1 R. v. Chalmers, 2009 ONCA 268, Date , docket C41357

2 a letter of apology to his mother-in-law, and attend at the crime scene to conduct a reenactment of the crime. A year later, the accused changed his story, recanting both his statements and the re-enactment. III. The confession The accused made several statements to the police during the re-opened investigation. During the interview preceding the polygraph test, he confessed to hitting his wife when she got off her horse. The defence conceded that he had been properly and repeatedly advised of his right to counsel on several occasions during the interview preceding the confession. The accused was informed of his right to counsel before his first confession, when only mere suspicion existed. However, he was not informed again after reasonable grounds was formed. The accused argued that his status changed from voluntary accompaniment to detention changing his jeopardy significantly, which should have required a second right to counsel. The Ontario Court of Appeal disagreed and denied the appeal. Summary of the re-opened investigation Mere suspicion was formed after the inquisitive detective took the crime scene photos to experts for their opinion. One expert thought that the death could have been caused by the horse. Another expert, considered that possibility unlikely. In addition to the accused, two other suspects took polygraph tests. One admitted that he had been having an affair with the victim shortly before she died. The other owned the farm where the victim stabled her horse. He and the accused found the body by the side of the road in the ditch. Interview #1: Conducted by the primary detective and an OPP Criminal Behaviour Analysis Services detective. The accused was phoned and asked if he would attend at the police station to discuss an on-going investigation. He attended by consent. When he arrived at the station, the detective told him that the police had received some information suggesting that [victim s} death might not have been an accident. The accused denied any involvement and gave an exculpatory statement. The detective told the accused two lies: (i) Someone had seen the accused s car on a road, near the crime scene on the morning of the death. The accused conceded that he could have travelled down that road to check whether the owners of the stable were home, but did not recall doing so, and (ii) The detective told the accused that the police were aware that both of them (husband and wife) had had affairs, not just his wife. The accused denied ever having been unfaithful to his wife and said that no one had ever suggested to him that she had been having an affair. The interview ended with the detective asking the accused to submit to a polygraph test in order to help the investigation along. They later phoned the accused and scheduled a test for two days later.

3 Interview #2: The polygraph interview and first set of inculpatory statements. The accused voluntarily arrived at the police station. Reasonable grounds did not exist at this time. Five-and-a-half hours later, reasonable grounds did exist. The evidence included the verbal confession, the letter of apology written by the accused to the victim s mother, and the accused s crime re-enactment at the crime scene. The polygraph detective was briefed by the investigators. His manner was courteous and solicitous throughout the lengthy process. In his ruling on the statement voir dire, the trial judge noted that the polygraph detective s communication style was gentle and sensitive, and persistently persuasive, but not aggressive. The interview was divided into three general phases: Phase one: Leading up to and including the administration of the polygraph test. The accused was informed: (i) of his right to counsel, (ii) (iii) (iv) (v) of the polygraph process, that he was not then being detained the door was unlocked and he was free to leave any time he wished. He could stop the interview process at any time if he wished to do so. of his right to remain silent, that he was a homicide suspect. There was general discussion about the victim s death. The accused was told that the polygraph detective s opinion, based on the results of the test was not admissible in court but that the contents of any conversations between the two of them may be. Regarding the right to counsel, the detective informed the accused: (i) that under the Charter he had the right to consult a lawyer, (ii) that the police had the names and phone numbers of legal aid lawyers and duty counsel, (iii) if at any time during the interview he wanted to speak to a lawyer just let me know and I ll I ll get a telephone for you and you can make a phone call in private. This was an open offer. The accused at no time, prior to his admission, said he wanted to call a lawyer. When asked if he wanted to do so, the accused replied, No, just you Hopefully, this will clear it and we ll move on. The Provincial Police Polygraph Examination Consent form was reviewed. Having read the form and later initialled his understanding of each of the foregoing rights before signing the form, the appellant had specifically been made aware of the toll-free number that he could use to access free legal advice. It was made clear to the appellant almost from the outset of questioning that he was a suspect in a homicide case. He was asked repeatedly nine times during the test alone whether he had done anything physical to cause his wife s death. By the trial judge s count, there had been 27 references to the appellant s potential jeopardy by the time the polygraph test had been administered. Phase two: Following the polygraph test.

4 The polygraph detective changed the tone and abruptly challenged the [accused] by indicating there was no doubt in his mind that [he] caused his wife s death. He immediately reminded the accused of his rights before embarking on a lengthy monologue. During that monologue, the polygraph detective suggested that: (i) (ii) the accused had been wronged by his wife, and was upset because of that, the accused met his wife on the road to talk things through, but things just got out of hand a less serious scenario than deliberate murder. Ultimately, the polygraph detective obtained a verbal confession. Finally (in the denouement) the confession was fleshed out, the [accused] confirmed the confession in writing in the form of a letter of apology to Ms. Chalmers mother, and agreed to attend at the scene of the murder for a re-enactment. Interview #3: The following day, the accused made more admissions of guilt about the offence to two relatives who came to visit him at the police station, as well as further admissions to a detective during a twenty-five minute interview. IV. Ontario Court of Appeal The ON. C.A. gave the following reasons for denying the appeal: 1. The statements were voluntary and no sec. 10(b) Charter violation occurred. 2. The accused clearly understood all of his rights through the continuum from the point when [polygraph examiner] elaborately explained them to the point when he expressed a desire to exercise his right to call a lawyer (in relation to seeking bail, after the initial confessions and letter, after he was placed under arrest, and after he had agreed to participate in the re-enactment.) 3. The statements were videotaped, allowing the trial judge to be in an excellent position to gauge the appellant s demeanour and reactions during the interrogation and to draw inferences which he did about the nature and extent of the appellant s understanding and volition during the process. 4. Detention started at the point in the interview immediately following the accused s admission that he started to hit his wife when she got off her horse. This was about 3 hours and 53 minutes into the interview. There was a sufficiently close temporal and factual link between the right to counsel and the first confession. 5. There had been a clear waiver of his right to counsel throughout. The accused was told and understood at all times that he was being questioned as a suspect and that his jeopardy was with respect to an offence of homicide he was asked repeatedly whether he had done anything to cause his wife s death. Thus, his status was as a murder suspect, and the nature of his jeopardy did not change after his first admission. There was nothing coercive or oppressive in the approach taken by [polygraph detective] or in the techniques he employed. The accused was fully advised of his rights, including his s. 10(b) right to counsel, at the outset of the interview. He freely waived those rights. Roughly three hours and twenty minutes later after the appellant had submitted to the polygraph test and after [polygraph detective] had returned to the room and announced that he had

5 absolutely no doubt the appellant had caused [victim s] death, thus reinforcing the appellant s jeopardy [detective] immediately reminded him of his rights. The videotape shows the appellant nodding twice and saying uh hum. This was about thirty minutes before the first admission. 6. While the appellant s status may have shifted from a person who was being questioned as part of the investigation to a person who was being detained, at the point of his first admission, there was no magical change in his understanding of the position he was in, or of his rights and how to exercise them, or of his jeopardy. The fact that the appellant and [polygraph detective] engaged in a discussion about ready access to a private call with a lawyer barely seconds before his admission is particularly telling. 7. The accused did not suffer emotional disintegration that would have made the confession involuntary and may have deprived him of his ability to appreciate the s. 10(b) caution and make an informed decision about retaining counsel. Here, the accused remained composed and appeared to be in a controlled and stable emotional state throughout. V. Conclusions Strategies The following strategies can be used to prevent a sec. 10(b) Charter violation during the interrogation of an adult involving: (i) a polygraph test and (ii) a change of belief from mere suspicion to reasonable grounds as the result of an interrogation. 1. Provide maximum consistent information to the suspect before and after the confession. Build a continuum a seamless path of information from mere suspicion belief to reasonable grounds belief. 2. Keep the suspect s knowledge the same before and after the confession Tell him: a. he is definitely a suspect b. the reason why he is a suspect c. that the purpose of the interrogation and/or polygraph is to find the truth d. a general narrative that summarizes the crime e. he is not under arrest, not detained and he is free to leave at any time f. he may stop the interrogation at any time g. his right to silence caution him, even though he is not under arrest h. his right to counsel, even though he is not under arrest 3. Don t conceal your beliefs. Tell him exactly what you suspect him of your theories, your conclusions. Hide nothing. 4. Videotape the interrogation to prove the accused s comprehension of his situation, contextually (by his words and conduct). 5. When the start of the interrogation and the confession are linked closely together, (in time) a repeat of the right to counsel is not compulsory. However, to be safe, repeat the right to counsel after the confession.

6 Even though the caution/right to silence and right to counsel are not compulsory instruction when an adult suspect is not under arrest, telling the suspect that he doesn t have to answer your questions and that he can call a lawyer at any time will not impede your interrogation or investigation. The process actually heightens his cognitive dissonance, a major element in determining the outcome of the interrogation. Additionally, these strategies prevent Charter violations.