Ethnomethodology in Criminal Justice: Key Insights and Policies
School
University of Toronto**We aren't endorsed by this school
Course
CRI 391
Subject
Law
Date
Dec 10, 2024
Pages
18
Uploaded by AdmiralMagpie4782
CRI391 –Special TopicsEthnomethodology for CrimSLDr. P. G. WatsonFall 2024University of Toronto2024-11-05© P. G. Watson 2024
Some More EM Policies•The Unique Adequacy Requirement for Methods (Garfinkel, 2002; p. 175-176; see also Smith, 2024)•For Garfinkel, there is no distinction between ethnomethodological research methods and member’s methods of doing work•Recall, “Member” indicates a fluid competence in a linguistic community –whether that be fluency in a generic culture or a workplace culture•Manchester school variant of EM is primarily focused on the ‘praxeological (practical) grammars’ of language and rule use –rules are conveyed to us in language (i.e. law textbooks, legislation, etc.) but take their meaning through practice•“A certain way to lose the phenomenal field that EM texts, as instructions for doing real world jobs, would get you, is to read the text and not do the work that it describes.” (Garfinkel, 2002; p. 147)2024-11-05© P. G. Watson 2024
Some More EM Policies –Unique Adequacy•In brief, Unique Adequacy is the condition of describing the work we (ethnomethodologists) study in the same way that bona fide practitioners of that work would know it –the seen-but-unnoticed elements of the work being done•Weak use –researcher is familiar with the “vulgar competencies” in producing the local order of the phenomenal field under study •Strong use –research is interchangeable with the practitioner, can undertake the practice themselves and speak/write of it professionally•None of us will have met the strong requirement any time soon, but weak use is ascertainable with attentive “thick description” (Geertz, 1973)2024-11-05© P. G. Watson 2024
Some More EM Policies –Unique Adequacy•In some cases Garfinkel demanded his students attend law school before completing their PhDs•But, with law, one thing to keep in mind is despite the technical vernacular in practice of law, the rulings themselves are meant to be readable by the populace•Other cases, students of Garfinkel’s took up the study of law independently of formal legal training•Either is possible, albeit there is something to be said about having a “final word” on legal procedure with backing of a law degree2024-11-05© P. G. Watson 2024
Some More EM Policies –Unique Adequacy•Significance for us: important to recall Canada Evidence Act is only 27-pages long (compare six volumes of Federal Rules of Evidence in US)•Canadian rules of evidence are largely based in judge-made law (precedent) and do not have formal codification•Note in the textbook, Justice L’Heureux-Dube is cited as defining the subjective nature of admissibility tests, that these are particular areas where biases, stereotypes, and myths may expose themselves•We don’t make these allegations, but we might take an interest in cases where such allegations are levelled, and may explore the constitution of such allegations2024-11-05© P. G. Watson 2024
Admissibility –Probative Value•Especially as investigative techniques become more sophisticated, so too does the evidence that is used to sustain a criminal allegation•Anything that can be used to prove (again, beyond reasonable doubt) any element of a criminal allegation is, in theory, admissible•We have already covered some of the conditions in the Charterthat would make evidence inadmissible •Later we’ll cover some rules that make certain statements from certain types of people inadmissible•But ultimately, judges have huge latitude in deciding admissibility of evidence2024-11-05© P. G. Watson 2024
“Proof”•Hester and Eglin (2017) note that “proof” in court is “proof for all practical purposes” (i.e. beyond reasonabledoubt)•Reasonable doubts are not all doubts –doubt based on not-widely-shared-beliefs (i.e. the existence of long-lost genetic twins, supernatural forces, aliens, etc… are not “reasonable” even if they’re doubts)•Reasonable doubt is always subject to revision and appeal –our system allows for new evidence to be admitted post-conviction that would exonerate an accused, and decisions are then, in principle, always open to revision•Burden of proof lies with Crown –almost never the case that an accused must prove innocence, although a defense (if made) must be a “reasonable defense”2024-11-05© P. G. Watson 2024
R. v. Forcillo (2016) and Suicide-by-Cop•In Forcillo, defense proffered an expert witness, Rick Parent, who would opine victim, Sammy Yatim, intended to commit Suicide-by-Cop•Parent was subject to admissibility hearing, where evidentiary burden was on defense to prove reliability of evidence•During cross in vior dire(admissibility hearing) Parent divulged he had not examined Yatim’s toxicology report and changed assessment of Yatim’s intentions on the stand•Judge ruled Parent’s testimony inadmissible, unreliable witness, disproving an element of the defense theory of self-defense in the case2024-11-05© P. G. Watson 2024
R v. Forcillo (2016) and Suicide-by-Cop•Obligation rests with trial judge to ensure evidence is relevant (has probative value) and is not an unnecessary or inaccurate distraction for the trier of fact (prejudicial effect)•In Forcillo, defense theory of victim precipitation is viewed as a distraction, although worth considering how defense argued the relevance of the theory as a response to prosecution evidence•Cases where police are accused are very high stakes, very aggressively defended –this is not what we typically expect to see•Nevertheless, a perspicuous setting for examining the constitution of legal rules as lived practice2024-11-05© P. G. Watson 2024
Reverse Onus Offences•In these offences, burden of proof falls to the accused, not the Crown•Typically for regulatory offences (i.e. environmental law and obligations of companies to dispose of waste effectively) but also covers some criminal code offences•A person caught with lock-picking tools is under a reverse onus obligation to prove their legitimate possession of such tools (i.e. a locksmith’s business license)•Textbook case of car with VIN number destroyed as reverse onus offense (note: federal and provincial governments are currently working on strengthening punishments for breaking these laws)2024-11-05© P. G. Watson 2024
Types of Evidence•Witness Testimony (Viva Voce) –not only the most common type of evidence, but also how almost all other evidence is introduced into court•I.e. physical (‘real’) evidence (a handgun used for an armed robber) would be entered into evidence through the testimony of witness (detective, forensic examiner, etc…) who would explain connection to allegation•Demonstrative –evidence that meets res ipsa loquitor doctrine, evidence that speaks for itself•Illustrative –usually some kind of image evidence that reflects elements of the offense2024-11-05© P. G. Watson 2024
Types of Evidence•Out-of-Court Statements –typically inadmissible, although sometimes are admitted to test credibility of a witness•See Moore & Singh (2018) discussion of “KGBStatements”(also textbook in Chapter 12)•Direct Evidence –eye-witness testimony (every eye-witness is [likely] to give viva voce evidence, not everyone who gives viva voceevidence is giving direct evidence•Circumstantial evidence –evidence that builds some element of the theory of the offense, but interacts with other evidence to prove offense2024-11-05© P. G. Watson 2024
Evidential Warnings•Hodge’s Case,and an instruction to jurors that they must conclude that there is no reasonable inference that can be drawn other than that the accused committed the crime when basing a conviction on circumstantial evidence•Vetrovec warnings, and instructions to jurors that witness statements from “unsavoury characters”and asks jurors weigh such evidence carefully, i.e. look for corroborating evidence•Judges have an obligation to ensure trial efficiency (i.e. not calling every witness under the sun) while also giving the trier-of-fact the details required to make their decision2024-11-05© P. G. Watson 2024
Compellability•Unlike the United States, there is no “5thAmendment” to defend a witness against self-incrimination on the stand•However, to avoid Charter S. 13 breach (protection against self-incrimination) incriminating statements from one proceeding may not be used as evidence in subsequent proceeding•As a practical matter, Crowns will schedule proceedings to avoid conflict on statements2024-11-05© P. G. Watson 2024
Types of Evidence•In practice, there are rarely discussions about what kind of evidence any given exhibit or testimony is•Depending on jurisdiction, there may be rules that impact how the trier-of-fact can handle evidence during deliberations•Juries are usually permitted to handle testimonial evidence (i.e. court transcripts) to settle contentions about what a witness said•Juries will also generally handle real evidence (with some provisos)•Some demonstratives or illustratives are not given to juries since they only exist to aid the witness’stestimony, and it is the testimony that constitutes the “real” evidence2024-11-05© P. G. Watson 2024
Privileges•Solicitor-Client –a lawyer cannot be compelled to provide evidence in the form of statements made to that lawyer by the client unless the client waives the privilege (i.e. by divulging the conversation to a third party)•Lawyers must still comply with law, and privilege does not cover ongoing criminal activity and mandatory reporting of legal documents (i.e. tax files)•Spousal –covers communications between partners, but spouses are otherwise compellable; can be compelled to say what they saw as an eye witness, but not reveal communications about what they witnessed•Clergy –a form of “class privilege” that is not typically recognized in Canada (exceptions for Quebec and Newfoundland)2024-11-05© P. G. Watson 2024
Hearsay •“Ordinary fact witnesses” –eye-witnesses, percipient witnesses, etc. –are permitted to testify about their direct experiences only –what they saw, heard, smelled, etc. at the alleged criminal event•An ordinary fact witness may not testify to things heard from other people, tendered as truth •Statements about what others may have said can be admissible if they explain some course of action (i.e. “I did such-and-such a thing because I heard someone say this”) but the truth of what the third person said is not being tested by the testimony•Admissions are one of a handful of hearsay exceptions2024-11-05© P. G. Watson 2024
R v. Villaroman (2016)•The weighting of circumstantial evidence and the necessity of an accused to provide evidence of an alternative theory of the offense2024-11-05© P. G. Watson 2024