ADMISSIONS

An admission is a statement by a person that is adverse to the person’s interest. It can be formal or informal. (It is the confession’s little brother.)

Formal admission: made in a legal proceeding. It relieves the Crown of the burden of proving a fact (eg, so as not to upset the jury and move on to eg. insanity).

Informal admission: an admission made –not in a legal proceeding- eg to a friend or stranger that the person making the admission committed a crime.

That friend/stranger can be called to testify.

Hearsay (an out of court-statement made by someone other than then witness)

Exception, but: it is only one more factor, not a decisive one.

Rationale: people do not admit to things against their own interest unless they are true.

Jail-house informant: a person who, while in custody with the accused, claims that the accused made an admission of guilt. Informants are generally promised something, eg, jail privileges, money, reduction in sentence, etc, in exchange.

Policy: jurors should be warned about the fact that witness is in jail. Supreme Court: no, not at all.

CONFESSIONS

An informal admission made to a PERSON IN AUTHORITY (police, prosecutor, prison official, parole officer, analyzed from the subjective view of the accused NOT IN THE US) about the guilt.

Admissible in court if Crown can prove (and the accused must prove that it should not be excluded by section 24 of the Charter) that it was:

VOLUNTARY

Before a JUDGE, if the judge determines it is admissible, then the Jury must consider it.

Not voluntary if obtained: (i) under a threat or (ii) under a promise of advantage.

Also, OPRESSIVE CONDITIONS: denying food, medical attention, intimidating questioning for a prolonged period of time, etc.

OPERATING MIND OF THE SUSPECT: mental cognitive capacity to understand what is being asked.

POLICE TRICKERY: pretending to be a lawyer, priest, injecting something.

Derived confession rule:

A second statement, which follows an inadmissible first statement, must be excluded if (i) the tainting features which disqualified the first statement continue, and (ii) the fact that the first statement was made as a substantial factor contributing to the second statement.

Real evidence found as a result of an involuntary confession: INADMISSIBLE.

The RIGHT TO RETAIN COUNSEL

(i) Duty to give detainees reasonable opportunity to exercise the right to retain a lawyer.

(ii) To cease asking questions or otherwise attempting to elicit the evidence until the detainee has had an opportunity to retain a lawyer.

Informational rights: when change in jeopardy (eg attempted murder to murder) AGAIN.

Waiver, but if intoxicated: NOT VALID

The RIGHT TO REMAIN SILENT

Individuals have a right to remain silent in the face of police questioning, even if they initiated police contact and volunteered some information.

In-custody admissions: Eg. Herbert told the police he wanted to remain silent. So, he was detained and then made admissions in jail to a police undercover: INVALID.

Requirements:

(i) Question may start after suspect has consulted with counsel.

(ii) Right of silence applies AFTER DETENTION.

(iii) Right of silence does not apply to voluntary statements made to fellow cellmates but police may not do anything while undercover.

(iv) An undercover agent who merely watches a suspect and hears inculpating statement without doing anything (so an agent who elicits information is in violation of the right to remain silent. Eg, friend of suspect’s sent by police officer is an agent of the police.

Elicit information (is there a causal link between the conduct of the agent and the making of the statement?): (i) elicit information is similar to interrogating, and (ii) did the agent use or exploit a relationship of trust or power?