Chapter 9/ RULES Chapter Rules of Criminal At First Glanc Procedure 1. Why do poli people "their 2. Why has the to listening Each moment in the chain of events from crime to trial is sub- CHAPTER 3. What rights ject to the laws of criminal procedure. These laws balance two young perso Focus sometimes conflicting objectives: to discover the truth about a In this chapter, you criminal event and to protect civil liberties. The rules of crim- will inal procedure mark the boundary between legitimate police Crime Sc . explain the investigative practices and every person's right to liberty, privacy, Police play a cr processes of police and personal security. They reflect the beliefs that state power result of their investigation, includ should be limited, that the rule of law applies as much to police secure evidence ing collection of evi- depend to a l dence and forensic as to people accused of crimes, and that the ends do not always investigative s testing justify the means. The entrenchment of the Canadian Charter result in miso . compare the rules of Rights and Freedoms has confirmed our commitment to fair of arrest for both police process by making Canadian criminal procedure a matter of The Crim and private citizens constitutional law. A crime scer . explain the proce- dure for obtaining a The cartoon in Figure 9.1 asks you to consider the question which a crim cial that the search warrant of rights. This require analyze the proce- first at the s dures for ensuring an pects, assist accused person's cers at the attendance in court scene. The . demonstrate an tional con understanding of the personnel methods of trial Police . assess the role of crime sce Crown disclosure in and puni the trial process execution that pol admitta Det remove tigation the scer the jur GREGORY "I can read you your rights, or you can listen to your rights on tape." Figure 9.1 260Chapter / RULES OF CRIMINAL PROCEDURE 261 At First Glance 1. Why do police officers "read" people "their rights"? 4. What rights do you think the 2. Why has the cartoonist referred police officer has? to listening to rights on tape? 5. Should young people have more 3. What rights do you think the rights than adults on arrest? Why young person in the cartoon has? or why not? Crime Scene Investigation Police play a crucial role in the initial phase of criminal investigations as a result of their responsibility to investigate crime scenes and to collect and secure evidence. The strength and integrity of ensuing criminal procedures depend to a large extent on the competence of police officers during the investigative stage. Lapses can contaminate the proceedings that follow and result in miscarriages of justice. The Crime Scene A crime scene, which may be the residence of a suspect or a location in which a crime occurred, is often a rich source of physical evidence. It is cru- cial that the scene be secured so that evidence is not lost or tampered with. This requirement places a heavy responsibility on the officers who arrive first at the scene. After attending to the most pressing duties (arresting sus- pects, assisting the injured, and eliminating potential risks), the first offi- cers at the scene of a crime must determine the boundaries of the crime scene. They must take steps to protect the area from accidental or inten- tional contamination by anyone, including police officers and other official personnel. Police officers have the authority to cordon off and refuse entry to a crime scene under s. 129 of the Criminal Code, which provides for the arrest and punishment of any person obstructing a police officer in the lawful execution of his or her duties. The 1973 case R v. Knowlton has established that police officers are lawfully executing their duties when they refuse admittance to anyone attempting to enter an area cordoned off by police. Determination of the point at which a crime scene may safely be removed from police control is made by the officer in charge of the inves- tigation, unless the incident involves a death. In this case, the security of the scene falls under the coroner's authority. In Ontario, cases falling under the jurisdiction of the coroner include . sudden or unexpected deaths . deaths of persons in custody262 CRIMINAL LAW Unit & deaths occurring in institutions, including homes for the aged . deaths from violence Cha . suicides To find out more about . deaths occurring in a suspicious, unusual, or unnatural manner. the Ontario Coroners Act, visit www.emp.ca/ The Coroners Act allows polic s police officers and others acting under their dimensionsoflaw control to seize anything relevant to the investigation at the crime scene and to maintain the security of the scene until it is ordered released by the coroner following the post mortem examination. Processing the Crime Scene Once the crime scene has been secured, the focus of a police investigation To find out more about moves to the collection of physical e sical evidence. Some physical evidence, such the collection of evidence as a knife left at the scene of a homicide, is readily identifiable. Other evi- at crime scenes, visit dence-fingerprints, for example-requires detection, collection, and www.emp.ca/ dimensionsoflaw interpretation by experts. Crime scene investigation is carried out by mem bers of a mobile crime lab or identification officers who are trained in the analysis of physical evidence. These officers are responsible for preparing a description of what they find, photographing the scene, preparing dia- grams or sketches, and collecting evidence. Because the field of forensic evidence is so broad, police departments often hire specialists, such as anthropologists or blood pattern analysts. Police departments have also established procedures for the seizure, handling, and storage of evidence. Procedures may vary slightly from continuity of evidence: department to department, but all are designed to safeguard the continuity continuous chain of pos- of evidence. Figure 9.3 distills some of the procedures followed by most session designed to ensure police departments. the safekeeping of evidence Figure 9.2 A police detective dusts for fingerprints at a crime scene.Chapter 9 / RULES OF CRIMINAL PROCEDURE 263 Crime Scene Procedures No exhibit is left unattended from the time of its seizure until it is deposited in the police property property -storage facility.; The officer who seized the item, or the case officer, must secure the evidence in the police property locker, which is under the control of the case officer: officer in property clerk. charge of an investigation The transfer of any evidence to the forensic laboratory is the responsibil ity of the case officer and/or his or her designate. case officer. The transfer of evidence to and from court is the responsibility of the . No exhibit can be removed from the control of the property clerk with- out appropriate authority and signatures. Figure 9.3 Processing Physical Evidence Fryi Forensic science Physical evidence collected at a crime scene is like the pieces of a puzzle. It has a long history. In is the job of forensic scientists to put the pieces together correctly. In their 1248, a Chinese book laboratories, forensic scientists examine, test, and analyze the physical evi- entitled His Duan Yu (The dence. Analysis may involve biology, chemistry, physics, anthropology, Washing Away of Wrongs) geology, and computer science. Forensic scientists are often called on to described how to distin- give expert testimony in court. guish between drowning and strangulation. The Fingerprints first documented use of physical matching Along with DNA, fingerprints are considered by many to be the best way occurred in 1784 in to identify a suspect and place him or her at a crime scene. Fingerprints Lancaster, England, where never change and are unique to each person. All fingerprint patterns can John Toms was convicted be identified as one of three types (see Figure 9.4 on page 264): of murder on the basis of a torn piece of newspaper 1. arches, forming ridges that run from one side of the print to the other in a pistol that matched a and curve up the middle second piece found in 2. loops, showing stronger curves than arches with ends that start on one Toms's pocket. side of the finger, loop around, and end up in the same place 3. whorls, forming complete ovals, often in a spiral pattern around a cen- tral point. Some fingerprints are created when a person's fingers come into contact with an object such as a piece of glass or a plastic bag. A residue of oil and perspiration from the fingertip is deposited on the object's surface. This type of print, called a latent fingerprint, is usually invisible and requires the application of chemicals or laser light. Fingerprints known as visible impres- sions are the result of a finger's contact with a surface where blood, dust, or grease has been previously deposited. Another type of print, called a moulded fingerprint, leaves a visible impression in a soft substance such as clay, wax, or putty.CRIMINAL LAW 'Unit 3 264 Tented arches Radial loop Arches Ulnar loop Central Twinned loop Whorls Lateral pocket loop pocket loop Figure 9.4 Different patterns found on fingerprints. Fingerprints taken from a crime scene are sent to a central repository administered by the RCMP in Ottawa. If an individual has prints on file as a result of a previous arrest or conviction, and if the quality of the finger- print is adequate, the individual's identity can be determined through comparison with the prints submitted by the police. The characteristics of each print are examined by experts. When a sufficient number of charac- teristics are thought to be identical (usually 10 to 12 points of comparison), an expert may form the opinion that the print submitted is that of the individual whose prints are on file. ersonal Viewpoint Can Fingerprints Lie? In 1998, at a murder scene in a small Scottish At Mckie's request, Allan Bayle, arguably the town, forensic experts made an unexpected dis- foremost fingerprint expert in the United Kingdom, covery: a fingerprint found in the victim's house examined the print. Bayle asserted that it was not matched that of Shirley Mckie, a young police Mckie's. How could such an error have been made? officer assigned to the case. The problem was that Mckie had never been in the victim's house. Mckie In the words of journalist Michael Specter, who testified to that effect at the subsequent trial of investigated the case, "When fingerprints are prop- the victim's handyman, whose conviction depend- erly recorded (inked, then rolled, finger by finger, ed on fingerprint evidence. Prosecutors, enraged onto a flat surface, or scanned into a machine that Mckie had cast doubt on the validity of their that captures and stores each finger as a digital fingerprint evidence, charged her with perjury. image), identification works almost flawlessly. The trouble is that investigators in the field rarely seeChapter 9 / RULES OF CRIMINAL PROCEDURE 265 the pristine prints that can be quickly analyzed by a computer .. . Crime scenes are messy, and the FILIA Scan Images average fingerprint taken from ingel from them represents only a fraction of a full fingertip-about 20 per cent. They are frequently distorted and hard to read, having been lifted from a grainy table stained floor." "table or a blood - Mckie was eventually acquitted of perjury, but she was unable to return to work on the police force. Later, she told the Fingerprint Society that block the system it represents is "incestuous, secretive, Middle block black 44 41 7905% and arrogant. ... You are indicted on the basis of a Push [RETURN) to start sensing fingerprint. You are not innocent till proven guilty; if the police have a print, you are assumed to be guilty. We need to start a new culture. The view that the police and fingerprint evidence are always right, the rest of the world be damned, has to end." Bayle's involvement in Mckie's case caused a furor and forced him from his job with the Metropolitan Police after 25 years' service. He commented, "When you know something is wrong, Figure 9.5 An image sensed by a microchip capable how can you stay silent? It's a valuable craft, but of identifying fingerprints. The image shown at right is it a science like physics or biology? Well, of is the computerized thinned image of the left image, course not. ... It is such a subjective job." for ease of identification. Source: Adapted from Michael Specter, "Annals of Crime: 2. Examine your fingerprints. What type of finger- Do Fingerprints Lie?," http://www.michaelspecter.com/ print patterns do you have? Check a class- ny/2002/2002_05_27_fingerprint.html. mate's. Are the patterns different? 3. Are there dangers in presenting the evidence Questions of fingerprint experts in court? Give reasons 1. Suggest reasons why fingerprint analysis is not for your answer. Suggest ways in which any an exact science. dangers might be overcome. Trace Elements Dirt, dust, and residue, even in the minutest quantities, are known as trace elements. The origin of these elements may provide a link between a suspect and a crime. For example, wood or other materials at an arson scene may produce trace elements of the accelerant used to start or maintain a fire. Further examination by experts may uncover the specific chemical com- position of the fluid, thus linking it to a suspect who possesses the same material. During an investigation into a series of fires in Hamilton, experts linked the fluid used to start fires to fluid found in the garage of one of theCRIMINAL LAW Units 266 suspects. Both samples were mixed in exactly the same proportions and were not sold by any manufacturer. The transfer of trace elements such as hair and fibres between perpe. trator and victim is common in crimes such as homicide, aggravated assault, and kidnapping. Finding hair as a trace element on either the accused or the victim may link the two individuals. Although hair alone cannot positively identify someone, expert analysis may reveal a person's racial background if the sample contains the root, shaft, and tip. Experts can also determine the area of the body from which the hair originated and, if the root is present, the person's blood ty Expert examination of fibres may determine their point of origin or manufacturer. During the Atlanta child murder investigation of the 1970 experts were able to determine that fibres found on the soles of the shoes of one of the victims were left behind after contact between the victim and a rug in the accused's residence. In contrast, h rast, however, fibre evidence led by the Crown was no doubt partially responsible for the wrongful conviction of accused child murderer Guy Paul Morin in Ontario in 1992. Blood The evidentiary value of blood is paramount in impaired-driving cases, since the offence of impaired driving is based on the percentage of alcohol in the suspect's blood. Blood is also relevant in cases where a suspect's mens rea is in issue as a result of the ingestion of intoxicating substances. Because it is a fluid, blood conforms to the laws that govern the motion and properties of other fluids. A study of the size and shape of blood drops on a floor can indicate the height from which they fell and thus the loca- tion of the wound that produced the drops. The shape of the drop may indicate movement. A person who is in motion while bleeding produces a tear-shaped drop, with the narrow end indicating the direction of travel and the rounded end pointing toward the bleeder. An examination of blood spatters on a wall may indicate the force and direction of a blow. It may also indicate how far the victim was from the wall when the wound was inflicted. Gunshot Residue When a firearm is discharged, many materials other than the bullet are gunshot residue (GSR): trace substances left on expelled from the muzzle. These materials, known as gunshot residue surfaces, including the (GSR), include gases, unburned or partially burned powder grains, carbon hand of the shooter, after particles, traces of the bullet lubricant, traces of primer components (lead, the discharge of a firearm barium, nitrates), fragments of soft bullets (lead, antimony), fragments of the bullet jacket, and metal traces from the cartridge case or gun barrel. These trace elements are deposited on the hands of the person discharging the gun and are, under certain circumstances, detectable and identifiable.ns and Chapter 9/ RULES OF CRIMINAL PROCEDURE 267 perpe- ravated At one time, a procedure known as a paraffin test was used to detect er the GSR; however, because of its lack of specificity, this test has been replaced alone by a handwash test. It requires the suspect to wash his or her hands in a rson's chemical solution that 's leven n that is then sent to the laboratory for analysis. This test xperts is able to detect elevated levels of lead, barium, and antimony, which may inated indicate that the suspect has fired a gun recently. However, handling a weapon after it has been fired may contaminate the hands, thus leading to gin or an incorrect conclusion. The GSR test cannot determine the time at which 1970s, the suspect may have fired the gun. It is also less effective when the time between firing the gun and taking the handwash sample exceeds four hours. shoes A newer test for GSR shows promise. The scanning electron microscopy n and (SEM) test provides results that appear to be more accurate and consistent led by than those of the handwash test. Acquiring a sample is also less cumber- iction some. A special utensil containing a gummed substance is held against the skin and then removed. The GSR adheres to the gummed substance, which is then prepared for examination by the scanning electron miscroscope. DNA cases, All human beings have a distinctive genetic code within their 46 chromo- cohol somes, which are composed of deoxyribonucleic acid (DNA). Laboratory deoxyribonucleic acid pect's analysis of blood stains, semen, saliva, vaginal secretions, skin, and hair (DNA): biological com- pound that forms cell nces. follicles can lead to the identification of an individual through his or her chromosomes, from which otion distinctive genetic code. When DNA is properly analyzed, it can identify an genetic information can be drops individual with a certainty exceeding one in several billion. Minute sam- obtained loca- ples of human material are sufficient to produce reliable results even when a sample combines two or more substances. For example, blood taken may from a homocide victim may have several of a suspect's skin cells mixed ices a with it. This apparent contamination does not affect the reliability of the travel test. DNA testing has also been used to rule out suspects. on of ow. It ound Turning Points in the Law The Discovery of DNA DNA testing has been available since the the early 1980s, as Jeffreys experimented with t are early 1980s. Despite its relative newness, it removing DNA from human muscle tissue, he idue has had a dramatic impact on the collection of discovered that certain segments of human rbon evidence at crime scenes. In Canada, it has been DNA were genetic markers, each as unique to an used to prove the innocence of accused murder- individual as his or her fingerprints. Realizing lead, ers Guy Paul Morin and David Milgaard. that his discovery could benefit law enforcemen ts of DNA testing was invented by Alec Jeffreys, a Jeffreys found a way to process these genet arrel. geneticist at Leicester University in England. In markers by using electricity and radioacti ging able