Wednesday, September 26, 2012

Line-ups: Are They Just Like in the Movies? And Am I Required to Participate in a Line-Up?

1995 Neo-Noir Film - photo credit: Gramercy Pictures
I don't know about you, but I find the tensest, most dramatic time of many a police thriller to be the scene where the fearful witness is squinting out of the gloom through one-way glass into a brightly lit box, set up like a carnival side-show, with a half dozen or so denizens of the underworld arrayed in front of a wall with height markings, each character shifting uncomfortably from foot to foot, side to side, arms fidgeting, heads trying to look anywhere than directly at the reflective glass wall in front of them.

Suddenly, over a tinny speaker set high in the ceiling, they hear an echoey, authoritative voice - a cop voice - call out: "NUMBER 5, STEP FORWARD. NUMBER 5. YES, YOU. MOVE IT. TURN TO THE RIGHT. OKAY, TURN TO THE LEFT. STEP BACK." 

This side show cast can hear murmurs of voices on the other side of the opaque glass, but not make out any words. All are desperate to return to their former activities. Some, awaiting release from the drunk tank. Others, a return to duty as undercover police officers. And one, to a segregated cell awaiting a final decision as to whether murder charges will be laid against him. 

Unlike some movie fantasies that have always been fantasies, the live line-up scene is grounded in recent past reality, with occasional gusts of current reality. 

What you need to know about movie-style line-ups is that they are unreliable, and possibly violate the protection against self-incrimination rights of suspects. That's why most police services have now moved to photo-pack line-ups. That way, no one is possibly coerced into participating in any activity other than posing for a photo when first arrested. And there are always lots more photos out there to draw upon in arranging a fair line-up of similar photos, than there will be live bodies available to stand beside the prime suspect awaiting identification in a live line-up.

Prior to the days of wide-spread photography live line-ups were the only investigative option. But today, there's really no excuse as to why fair photo line-ups aren't administered everywhere. 

Still, live-ups are not completely dead. And even photo line-ups can be contaminated by the person administering them consciously or unconsciously suggested the "correct" result to the witness reviewing the photos. That's why the even the person running the line-up shouldn't know which photo the police are focussed on. Just like drug studies where the doctors themselves don't know who is getting the placebo, and who is getting the real drug. 

Misidentification has time and time again been identified as the prime suspect in the majority of wrongful conviction cases. The police have always known that some evidence of i.d. greater than in-dock identification - the old, yes your honour, that man sitting over there in the locked courtroom box, wearing the handcuffs, I'm sure he did it, even though I only saw him for two or three seconds in a dark alley three years ago - and thus the line-up was born. 

The best identification evidence will always be that which carries with it a certain scientific weight which is not subject to the frailties of human memory, like DNA or fingerprint or other physical evidence. But human memory need not be completely discounted - its accuracy just needs to be sufficiently tested. Line-ups are a good test of memory, but only with photos, and only if properly arranged and administered. 

If you're ever asked to participate in a live line-up, you should speak to a lawyer first before agreeing to do so. Likely your lawyer will tell you what I tell my clients: don't do it. 

Do give the police your correct name, do pose for a photo, and do permit your fingerprints to be taken - these are usually all legal requirements if you are charged with a serious offence - but self-incrimination will never be a requirement. Sometimes there will be some benefit to telling your side of the story to the police, but there would never seem to be any benefit to going into a line-up. You run a great risk of being misidentified, and likely won't be set free simply because a single witness didn't pick you out from the bright lights and height markings. 

Friday, September 14, 2012

Do Lie Detectors Lie? And If They Do, Why Do We Love Them?

Photo credit: Limestone Technologies Inc., Creative Commons License
In the Simpsons (Fox Broadcasting Company) episode "Who Shot Mr. Burns", Moe (the bartender of the show) is administered a lie detector test which actually works:

Officer: Do you hold a grudge against Mr. Montgomery Burns?

Moe: No!

(Lie detector buzzes, red light flashes)

Moe: I didn't shoot him
(Lie detector dings, green light flashes)

Lie Detector Operator: Checks out, sir. You're ok sir, you're free to go.

Moe: Good, cause I got a hot date tonight.
(Lie detector buzzes, red light flashes)

Moe: A date.
(Lie detector buzzes, red light flashes)

Moe: Dinner with friends.
(Lie detector buzzes, red light flashes)

Moe: Dinner alone.
(Lie detector buzzes, red light flashes)

Moe: Watching TV alone.
(Lie detector buzzes, red light flashes)

Moe: All right! I'm gonna sit at home and ogle the ladies in the Victoria's Secret catalog!
(Lie detector buzzes, red light flashes)

Moe: Sears catalog.
(Lie detector dings, green light flashes)

Moe: Would you unhook this already, please?! I don't deserve this kind of shabby treatment!
(Lie detector buzzes, red light flashes)

The reality of lie detector (also known as polygraph) accuracy is starkly different. Even though they've been around for close to a hundred years, proper science has never proved their accuracy. But their fans continue to make use of them in the firm belief that they are in fact accurate.

Over 35 years ago, Justice Donald Morand in The Report of the Royal Commission into Metropolitan Toronto Police Practices (Toronto: Queen's Printer, 1976) wrote:
The polygraph examiners had many opportunities to answer the problems and criticisms suggested by psychiatrists and physiologists. Unfortunately, their response was invariable that the criticisms were not valid because, in their expeirence, the test worked. I have come to the conclusion that I must accept the evidecne of the psychiatrists and physiologists, which is consistent with both my common sense and my personal experiences, that all indviduals do not react in identical ways in a given situation.
Over 25 years later, the Supreme Court of Canada wrote in R. v. Oickle, [2002] 2 S.C.R. 3 at para. 95: 
I agree that the police exaggerated the accuracy of the polygraph. As many sources have demonstrated, polygraphs are far from infallible: see, e.g., D. T. Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector (1998); J. J. Furedy, “The ‘control’ question ‘test’ (CQT) polygrapher’s dilemma: logico-ethical considerations for psychophysiological practitioners and researchers” (1993), 15 Int. J. Psychophysiology 263; C. J. Patrick and W. G. Iacono, “Validity of the Control Question Polygraph Test: The Problem of Sampling Bias” (1991), 76 J. App. Psych. 229. Similarly, this Court recognized in R. v. Béland, [1987] 2 S.C.R. 398, that the results of polygraph examinations are sufficiently unreliable that they cannot be admitted in court.
Academic authors have gone further, with some calling polygrahs "a dangerous erosion in our system of justice and democracy," others who "affirm the polygraph's ineffectiveness, and one who "compares control question testing to the reading of tea leaves" (see R.J. Marin, Admissibility of Statements, 9th ed (Aurora: Canada Law Book) at paras. 9.369-9.371 for a summary of opinions). 

Personally, I don't rule out the possibility of future technology achieving a deception detection accuracy of better than chance - voice tremor analysis and infrared facial heat measurement being two promising fields - but there needs to be independent, verifiable and scientific confirmation of results. 

So why do we love these machines that go beep if they really don't work? 

First, because of wishful thinking. The "wow, wouldn't it be great if science could solve all our human problems, including the problem of human deception" kind of thinking. 

Second, because of some of the people who are so convinced that they work are in fact those who submit to taking the test. Thus, if they think they can't beat the machine, they tell corporate employers, government security screeners, or the police the truth, the whole truth and nothing but the truth. In this sense, polygraphs can be a useful questioning tool - though this effective coercion of the truth is another reason courts exclude their results from evidence.

In applying for some jobs, you might not be given any choice but to submit to a lie detector test.  Take some solace in the fact that whether you pass with flying colours, or flunk out, may have little to do with whether you told the truth.

However, when you do have a choice over submitting to a polygraph, don't be drawn in by the "well, if you're telling the truth, you've got nothing to fear" argument. The truth won't necessarily stop that electronic box buzzing its disapproval with a blinking red light. 

Thursday, September 6, 2012

Top Ten Ways to Stop Disputes Within a Business Before They Arise

All may be well in the early days, when your business partnership doesn't amount to much more than a somewhat dated cell phone, a rack of really outdated CDs, and a happy computer face coffee mug.  But later, when things really get going ...              Photo credit: Ian Britton, Creative Commons License. 

Media attention often focuses on business struggles between competitors, like the apocalyptic patent litigation between Apple and Samsung. I suppose the popular allure of such disputes at least in part is the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are disputes within businesses and among their members, be they childhood friends who have tossed in some money to open a small restaurant, professional partners, or larger corporations undertaking some kind of resource exploration joint venture. These internal business disputes are likely more preventable than the external ones, with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business, and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining externally successful business endeavours.

1. Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, year or decade down the road among the members of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business if profitable? 

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for. You can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area, sometimes large multinational corporations get together to jointly pursue some kind of business opportunity, and wind up in an accidental partnership which they hadn't intended.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pay for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business.

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business parties don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.

9. Be clear on how disputes will be resolved. It is not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.