R. v. B.W.

Charges:

(1) Sexual Assault;
(2) Sexual Interference

The client, B.W., was charged with one count of sexual assault and one count of sexual interference as against a 5 year old little girl who was the daughter of one of the client's friends. The little girl maintained that the client had touched her three times with his tongue in the vaginal area.

When the client was contacted by the police, he eventually agreed to undergo a polygraph examination commonly known as a lie detector test. The entire examination was video recorded. At the conclusion of the examination, the client provided an inculpatory statement to the polygrapher who was a police detective. The client was then advised of his right to counsel and cautioned following which he provided a second inculpatory statement.

The primary issue at the client's trial was the admissibility in evidence of the client's two inculpatory statements.


The detective who had administered the lie detector test to the client had used what is commonly referred to as the Reid technique. The problem with his technique is that it is designed to elicit confessions. It is not designed to elicit the truth. The technique involves building a rapport with the suspect, using false evidence to convince the suspect that the polygraph device is actually capable of determining with precision when someone is lying, minimizing the offence that is the subject of investigation and then becoming more and more aggressive and confrontational with the suspect, while offering the suspect an "opportunity to do the right thing" and assuring the suspect that everything will turn out just fine. The process takes several hours to complete and often results in confessions. The technique sometimes elicits false confessions. The client maintained that both of his inculpatory statements were false.

False confessions are not uncommon, probably because the human mind can only tolerate high levels of stress for a limited period of time. It must be extremely stressful for a suspect to have to keep denying false allegations over and over again for several hours during a police interrogation. Throw into the mix a means for the suspect to ease the stress by agreeing to the suggestions of the police and you have the makings of an environment in which a suspect may very well make a false statement. I've had more than a few clients who have told me that being interrogated by the police was like talking to a brick wall, the police just kept asking the same questions over and over again until they got the answers that they wanted. The statistics in the United States indicate that in one out of every four death row cases in which the accused is eventually proven innocent by D.N.A. evidence, the accused had falsely confessed. This means that regardless of the possible consequences, innocent suspects will sometimes confess to crimes that they have not committed.

Going back to the case of B.W., at the conclusion of his trial, the client was found not guilty of both of the charges which he was facing. The defence obviously succeeded in raising a reasonable doubt with respect to the reliability of the client's two statements. Also, the evidence of the little girl was inconsistent with the evidence given by her mother and had to be treated with caution by the trial Judge in light of her young age and in light of the fact that it was provided on a promise to tell the truth. The little girl was too young to appreciate the significance of swearing an oath or providing a solemn affirmation.