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Afficio Undergraduate Journal
Letter to Justice Brothers
Winner, Early Undergraduate Social Sciences
Author: Rebecca Ryan
Dear Justice Brothers,
I would like to begin this letter by thanking you for reaching out to me for an expert opinion. I would be happy to offer my expertise on your decision on the R. v. Webber (2018) case. On May 24th, 2016, Renee Webber was arrested on various charges related to human trafficking. There were two voir dires in your decision on this case, the first regarding the voluntariness of Webber’s statement to police, and the other regarding whether or not the complainant, M.S., should be allowed to testify behind a screen and have a support person present during her court testimony.
At the time of the offences, M.S. was just 16 years old, and therefore her identity was protected by a publication ban. Webber is indicted on various charges under the Criminal Code in relation to the complainant, namely trafficking a person under 18 contrary to Section 279.011; obtaining a material benefit from trafficking contrary to 279.02; procuring a person for sexual services or prostitution contrary to Section 286.3; advertising an offer for sexual services for consideration contrary to Section 284.4; sexual assault and sexual touching against the complainant contrary to Section 271 and 153; uttering threats and assault against the complainant contrary to Section 266 and 264.1; and obstructing the police contrary to Section 129.
There are many important issues in this case that can be addressed, however I feel that it would be in my best decision to bring your attention to the psychological evidence that can be applied to the second voir dire of your decision. Your decision to allow the complainant, M.S., to use a screen during her testimony is justified and important for ensuring she gives an accurate testimony, as well as maintaining her mental health. However, your decision to allow the complainant to testify with the presence of a support person needs to be reviewed, as there is evidence that the presence of a support person can hinder the perception of reliability that the jury has of the complainant and their testimony (McAuliff et al., 2015). There is ample research on testimonial support usage among children (Chong & Connolly, 2015; McAuliff, Lapin, & Michel, 2015); however, there is minimal research including adolescent and adult populations (McAuliff & Kovera, 2012). As M.S. was just 16 when the offences occurred, I believe that this research on child victims is still applicable to her case. There are multiple aspects to consider when reviewing whether or not the complainant should be allowed the use of testimonial supports: specifically, how they may impact stress and consequently memory, as well as how the trier-of-fact perceives the statement given by the victim when using supports. I agree with your decision to allow the complainant a screen during her testimony, as it can minimize her stress; however, due to the impact that a support person has on the trier-of-fact, your decision to allow her a support person should be reviewed.
I would first like to bring your attention to the defence team’s concern for the defendant’s rights during the second voir dire. The defence team’s argument, as you are aware, is that they believed the screen and support person requested by the complainant would give the jury a biased view against the defendant, thus creating an unfair trial for Renee Webber. They believe the use of a screen would create a guilty bias because the complainant appears so fearful of the defendant that they cannot even face them, thus making the defendant appear more guilty to a jury. Although their concerns for a fair trial are valid, a near identical argument was brought before the Supreme Court of Canada during an appeal in 1993 (R. v. Levogiannis, 1993). At Levogiannis’ initial trial, the Crown requested that the 12-year-old complainant be permitted to testify behind a screen pursuant to s. 486(2.1) of the Criminal Code (R. v. Levogiannis, 1993). At appeal, Levogiannis argued that the use of s. 486(2.1) was in violation of his right to a fair trial, as per sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (1982) (R. v. Levogiannis, 1993). The Supreme Court dismissed Levogiannis’ appeal, stating that the complainant’s use of a screen does not infringe on any of his rights, and that s. 486(2.1) is constitutional (R. v. Levogiannis, 1993). The decision made in this case is a highly applicable reference for Renee Webber’s case as her defence team is arguing the constitutionality of s. 486 of the Criminal Code, much like Levogiannis. Although case law is an important consideration when making your decision on this case, I am writing to you to educate on the psychological evidence on the usage of testimonial supports.
Despite the benefits and drawbacks to the usage of various testimonial supports—such as support persons, screens, closed-circuit television (CCTV), or video—the case in discussion warrants the use of a screen during M.S.’s testimony; however, the allowance of a support person should be reconsidered. When considering the usage of testimonial supports, memory, stress, perceived credibility, and ability of the trier-of-fact to detect deception have been prominent areas of research for psychologists (Chong & Connolly, 2015). In the case of M.S., maintaining an accurate and detailed account of the crimes while minimizing the stress she may experience by testifying about traumatic events must be a primary consideration in deciding the use of supports.
The crimes that Webber is being tried for occurred over three years ago. This is important to consider, as there is a prolonged time period between the time of the initial offences against M.S., and her testimony in Webber’s trial. Section [109] of your decision states that the complainant, M.S., confided in D/Cst. Murray, crying, stating that she is always thinking about the sex work that she was forced to engage in and the allegations against the accused. Furthermore, you demonstrate an awareness in Section [111] of your decision that victims of sexual assault and abuse have experienced great trauma and stress, which can be exacerbated when recounting the details of their assault in open court, especially if the perpetrator of the assault is present. The effects that both stress and trauma have on memory have been largely debated amongst psychologists. However, studies suggest that children who were given the opportunity to use testimonial supports that would prevent them having to face their perpetrator gave more accurate testimonies and had lower stress levels than those who had given live testimonies in a traditional court setting. (Goodman et al., 1998, as cited in Chong & Connolly, 2015; Chong & Connolly, 2015). This finding is significant because it means if we can provide the complainant with supports that decrease stress, we can ultimately minimize the effects of stress on their memory.
Testifying on the stand in an open court room would be a stressful situation for any complainant and will likely be no different for M.S. Considering how stress can affect a person’s memory, or the ability to perform an entire testimony, it is important that we try to minimize the amount of stress that M.S. experiences on the stand as much as possible, without interfering with the administration of justice (Chong & Connolly, 2015). Considering the complainant’s crime occurred a few years ago, it is crucial to maintain the accuracy and details of her memory of the crime. For this reason, I believe you made the right decision in allowing M.S. to testify behind a screen.
Besides the positive effects that supports can have on stress levels, they can also have negative effects on deception detection, and the perception of credibility of the victim. The idea behind this is that it would be more difficult for the person testifying to lie in court when facing the defendant than if they were to testify behind a screen, through CCTV or recorded video (Chong & Connolly, 2015). As you are aware, lying under oath is against the law. While we expect that a person will not lie during their testimony, it is up to the jury to decide whether or not to take the testimony as truth. In Chong and Connolly’s (2015) analysis of the ability of mock jurors to detect deception amongst child and adult witnesses, they found no significant difference in the jurors’ ability to detect deception between the support and no support groups. Despite this finding, a study by McAuliff et al. (2015) found that even though jurors’ ability to detect deception is not changed by the use of supports, children who had support persons present during testimony were perceived by participants as less trustworthy and accurate than those children who had no supports present. This finding suggests that the use of a support person actually hinders the perceived credibility of the victim, thus damaging their case.
In a study investigating how jurors expected a child abuse victim to behave during a testimony, both with and without testimonial supports, McAuliff & Kovera (2013) conducted a survey of people reporting for jury duty, asking them a series of questions regarding how they think a child victim would behave during their testimony in a sexual assault trial in various situations. The community members stated that they felt a child without a testimonial support would be more nervous, fidgety and tearful, less confident and cooperative, have less fluent sentences or shorter answers, and would have less eye contact with the members of the court, than a child provided with testimonial supports. This data was used to determine that the expectancy violation theory plays a key role in how people perceive child victims. The expectancy violation theory, with respect to this survey, is the difference between how a child actually behaves on the stand versus the expectation that jurors have regarding how a child testifying about a sexual assault would actually behave (McAuliff & Kovera, 2013). The expectancy violation theory can be damaging to a testimony, as if the victim does not act how the jury expects a victim to act, they may perceive them as dishonest or not credible. Amongst the various forms of testimonial supports discussed, McAuliff and Kovera (2013) found that a child testifying with a support person, or over CCTV, would be more confident, less nervous, and less tearful than without this support. It was also found that the presence of a support person made people believe the child had rehearsed their testimony (McAuliff & Kovera, 2013).
Further to these findings, McAuliff, Lapin, and Michel (2015) focused their research on a specific form of testimonial support: the presence of a support person. Although in this study the participants are viewing the testimony of an 11 year old girl, I still feel it is applicable to your decision as it is related to how the presence of a support person can impact the opinion of the jury (McAuliff, Lapin & Michel, 2015). McAuliff, Lapin, & Michel (2015) were interested in identifying whether a child’s testimony when in the presence of a support person would be perceived any differently than a testimony with no support present. They asked 200 jury-eligible community members to complete a questionnaire regarding their views on child victims, and then view a video of a child giving a courtroom testimony either with or without a support person present. Following the testimony, participants were asked to complete a survey with questions regarding the child’s accuracy, trustworthiness, defendant verdict, the guilt of the defendant, and the likelihood that they have expressed abusive behaviour in the past (McAuliff, Lapin & Michel, 2015). Truthfully, the results of this study surprised me, and I feel it is very important that you review and consider the results of this study when deciding whether or not the complainant should be using a support person.
The participants who viewed the support person condition reported that the child was less accurate during their testimony than those who viewed the no support person condition (McAuliff, Lapin & Michel, 2015). When considering that expectancy violation theory has an effect on how a child’s accuracy is perceived, they found a negative correlation between the child’s accuracy and use of a support person. This is due to the fact that the presence of a support person made the child less stressed, thus minimizing certain behaviours that participants expected to see in a child victim. Further, this study found that women reported the child to be more accurate than men had when the support person was present; however, the accuracy perception rate was still significantly lower when the support person was present than when they were absent.
Similar to the results of the child accuracy variable, jurors found that in the presence of a support person, the child was less trustworthy during their testimony than the testimony absent of a support person (McAuliff, Lapin & Michel, 2015). The expectancy violation theory had an effect on the perception of trustworthiness as well, and McAuliff, Lapin & Michel (2015) found that this caused a negative correlation between the presence of a support person and child trustworthiness. One reason for the lack of trust in the child with a support person is the false belief that the support person has had significant time with the child before the court appearance, and that they have coached the child victim and told them what to say before testifying on the stand (McAuliff, Lapin & Michel, 2015). However, this is not the case, and the support person usually has very limited, if any, time with the child before the testimony to coach them (McAuliff, Lapin & Michel, 2015). They are there for exactly what their title suggests: to be a support to the child if it is needed. This study suggests that the support person actually adds a bias against the complainant, and in favour of the defendant.
The defendant verdict variable focuses on what percentage of the participants give a guilty verdict based on the child’s testimony, and the comparison of those results between the two conditions (McAuliff, Lapin & Michel, 2015). Unlike previous outcomes, there was not a significant effect of whether or not a support person was present on the final verdict. In total, 79% of the participants found the defendant guilty of committing the accused crime against the child testifying, and just 21% found the defendant not guilty (McAuliff, Lapin & Michel, 2015). Despite there being little difference in the verdict between the groups, researchers did find that the defendant in the support person group was less likely to be viewed as an abusive person than in the no support person group. This is significant considering it could have been expected that the negative effect that the support person had on the participants would have influenced their final verdict; however, we see that was not the case.
These findings support the hypothesis that having a support person present during testimony causes negative perceptions of the young victim and more positive perceptions of the defendant. This can be dangerous in court, as it may unjustly give the defendant an unfair advantage in the trial. I am aware that the defence team had concerns with the fairness of the trial for Renee Webber, but I feel the Crown should review the fairness for M.S. during this decision, as well.
Overall, I feel that the research supports your decision to allow the complainant, M.S., a screen to testify behind. The ability to testify behind a screen will decrease her stress and anxiety in facing the defendant, thus decreasing the negative effects those could have on her memory. With the aid of the screen, she will be likely to give a more accurate statement than if she was forced to face her defendant, something she expressed would be highly stressful. In terms of allowing her a support person, I recommend that you review your decision after considering the research provided above. The presence of a support person has the potential to cause an unfair bias against the complainant, although McAuliff, Lapin, & Michel (2015) did suggest further research be done to confirm their findings.
In conclusion, I want to thank you again for reaching out to me for an expert opinion on your decision regarding the R. v. Webber (2018) case. I hope that the research and insight I provided was helpful in your decision. I would like to remind you that I am not attempting to convince you to do anything in particular, I am simply providing research regarding issues in the case to support your final decision. Thank you for taking the time to consider what the psychological literature has to say regarding the usage of testimonial supports in sexual assault court cases. I hope the research I provided was valuable, and in the future you feel inclined to reach out to me again when you require help with the psychology of a case.
Sincerely,
Rebecca Ryan
References
Bottoms, B.L., Peter-Hagene, L.C., Stevenson, M.C., Wiley, T.R.A., Mitchell, T.S., & Goodman, G.S. (2014) Explaining gender differences in jurors’ reactions to child sexual assault cases. Behavioural Sciences and the Law, 32, 789-812. In McAuliff, B., Lapin, J., & Michel, S. (2015). Support Person Presence and Child Victim Testimony: Believe it or Not. Behavioral Sciences & the Law, 33(4), 508-527. https://doi.org/10.1002/bsl.2190
Chong, K., & Connolly, D. A. (2015). Testifying through the ages: An examination of current psychological issues on the use of testimonial supports by child, adolescent, and adult witnesses in Canada. Canadian Psychology/Psychologie Canadienne, 56(1), 108–117. https://doi.org/10.1037/a0037742
Goodman, G. S., Tobey, A. E., Batterman-Faunce, J. M., Orcutt, H., Thomas, S., Shapiro, C., & Sachsenmaier, T. (1998). Face-to-face con- frontation: Effects of closed-circuit technology on children’s eyewitness testimony and jurors’ decisions. Law and Human Behavior, 22, 165–203. In Chong, K., & Connolly, D. A. (2015). Testifying through the ages: An examination of current psychological issues on the use of testimonial supports by child, adolescent, and adult witnesses in Canada. Canadian Psychology/Psychologie Canadienne, 56(1), 108–117. https://doi.org/10.1037/a0037742
McAuliff, B. D., & Kovera, M. B. (2012). Do jurors get what they expect? Traditional versus alternative forms of children’s testimony. Psychology, Crime & Law, 18(1), 27–47. https://doi.org/10.1080/1068316X.2011.613391
McAuliff, B., Lapin, J., & Michel, S. (2015). Support Person Presence and Child Victim Testimony: Believe it or Not. Behavioral Sciences & the Law, 33(4), 508-527. https://doi.org/10.1002/bsl.2190
R. v. Levogiannis, 4 S.C. R. 475 (1993).
R. v. Webber, 2018 NSSC 308.