Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Live, from court it's . . . last week getting permission to re- port live news stories from inside the courtroom during the bribery trial of Ottawa Mayor Larry O'Brien. That means news outlets are able T to provide immediate coverage of the proceeding via things like instant messaging service Twitter and/or live blogging. And it doesn't apply only to journalists; anyone with a portable electronic device can tap a message or story in and send it off to the Internet without moving from the cheap seats to the corridor to do it. It isn't a "first in Canada" since The London Free Press has been tweeting for weeks from the first-degree murder trial of six Bandidos bikers, but this is his gives new meaning to the old news term, "This just in." The media won a big one still an important decision for media. "It's a powerful precedent," said one of the media lawyers, Richard Dearden, of the decision made by our hero-of- the-week Superior Court Justice J. Douglas Cunningham, who is also the court's associate chief justice. "This is the world in which we live," said Cunningham, agreeing with the media that courts have to go with the flow and adapt to new technology. But while the Ottawa Citizen, Can- west News Service, and Global TV suc- ceeded in convincing Cunningham to allow their reporters to blog and tweet from the courtroom, the CBC failed to get permission to stream a live video feed of the trial to its web site. The judge said that while allowing the instant messages is a "novel" report- ing procedure he would allow in his court for this particular case, bringing in cameras would be "changing dra- matically" the way trials proceed and thus such a bid would need weeks, if not months, of hearings. He said that would disrupt the start of O'Brien's trail prejudicing his rights, and noted the application was only filed the prior week, which was "woefully late." The camera debate is for another day as we revel in Cunningham's en- lightened decision that should blast a gust of fresh air through other courts in the province. Meanwhile, photography is still banned within courthouses, and laws governing contempt of court, libel, and publication bans apply. As long as the rules are followed and nobody infringes upon fair trial rights, it's a neat way for the general public to be exposed to our court sys- tem via new media platforms with no bearing on how justice is served. And, given that so many will be following, it's not hard to imagine if an errant tweet treads over the legal line some- one in the ether will call them out. The only downside is pity the poor reporters who these days have to juggle the old notebook and pen, but also a tape recorder and video camera for scrums, hand-held communication de- vices, cymbals between their knees . . . And so, for those with a hankering to know what's going on around here, follow Law Times on Twitter at www. twitter.com/lawtimes. — Gretchen Drummie Go to www.lawtimesnews.com for an audio version. Benefits of understanding statement analysis techniques W hat is it about some statements that makes you skeptical about the veracity of the wit- ness? And how important is this for defence lawyers? I first encountered the con- cept of "statement analysis" quite by accident, without knowing that it is a technique. The case was a domestic. The complainant said my client had thrown her down the stairs. The Crown's offer was sweet, but the client insisted on going to trial. How good were my client's chances? I looked at the com- plainant's statement – 25 pages long. After 17 pages of slagging off my client and detailing how horrible he was, the complainant began a brief outline of her very serious allegation: being thrown down the stairs. I realized that her focus was off. Crossing things out is some- thing I have always found sugges- tive of deception, especially where the writer switches to a word more favourable to him or herself. Since the witness wants you to skip over what they crossed out, I almost always cross-examine on the cross-outs. Lawyers can benefit from understanding the techniques used in statement analysis be- cause it helps them prepare for negotiations and for court. You may be able to show the Crown or the judge why you think the witness is being de- ceptive, is concealing evidence, or was involved in the crime. I am in the midst of read- ing quite an interesting book: Psychology of Criminal Investiga- tions: The Search for the Truth, by Michel St-Yves and Michel Tan- guay, translated by Jeffrey Miller. There is a brief but useful chapter on analyzing written statements and some useful tips. Firstly, St-Yves and Tan- guay consider that a statement should have an introduction, a "development" or middle section setting out the alleged crime, and some conclusion, perhaps about the end of the incident and calling the po- lice. St-Yves and Tanguay say A Criminal Mind By Rosalind Conway that in a normally constructed statement the description of the crime takes about 50 per cent of the statement. It is all wrong, as in the witness' state- ment above, if the history of the relationship so consumes the witness that the police of- ficer wearies while waiting for an account of the incident. The use of pronouns and articles: the witness should feel comfortable naming a per- son if he knows that person's name. The "ex-co-worker" has a name, one's own child is not usually "the baby" – this distances the writer from the events, and detaches the speaker or writer from them. Verb tenses: normally the allegation is in the past tense. To use the present tense is www.lawtimesnews.com suggestive of imagining or creating the narrative. Narrative connectors like "then" and "after" suggest that the witness has omitted some- thing that he would like to avoid discussing. Other giveaways are "because" and "later." Literature on statement analysis cautions that a decep- tive person may emphasize their own veracity: "As God is my witness," or "I swear on the graves of my children." The lat- ter is particularly difficult if the children are alive. Also, an account of events has to be logical. You cannot be left wondering how someone got in, how someone got out, and how the whole chain of events occurred. If the witness' account is confusing, that may be indicative of deception. There have been notori- ous cases where a person let slip during the investigation knowledge that the missing person was dead. When Scott Peterson was asked about his marriage to Laci, he answered, May 11/18, 2009 • Law TiMes Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. "The first word that comes to mind is, you, know, glorious, I mean we took care of each oth- er very well. She was amazing. She is amazing." There is a three-day course in SCAN (Scientific Content Analysis) offered by Avinoam Sapir, which some police offi- cers take. The advertising on the Internet says that an officer can send out a "view questionnaire" in written form to 100 people, have it faxed back, and in less than an hour the investigator will be able to review the ques- tionnaires and solve the case. Another place where infor- mation is available on state- ment analysis is, of course, the Internet. You can find online "Statement Analysis: What Do Suspects' Words Really Reveal?" by FBI Special Agent Susan H. Adams at www.fbi.gov/publica tions/leb/1996/oct964.txt LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

• Cover
• LSUC Financially Stable
• Statement Analysis
• Focus On Securities Law