Interrogations-and-Confessions-Handbook

574 A Psychology of Interrogations and Confessions
(R. v. Herbert [1990] 57 C.C.C. (3d) 1 (S.C.C)). Undercover agents in cells may
observe such a person, but not actively elicit information by subterfuge.
The case discussed raises some important issues related to the use of undercover
operators to elicit confessions from resistant suspects.
Brief Background
The case involved the murder in Canada of two German tourists, a young couple,
who were visiting friends and relatives. They were last seen at the end of
September 1983. Their bodies were discovered on 6 October 1983, in a wooded
area 32 kilometres west of the village Chetwynd. Both victims had been shot
in the head.
On 7 October a pair of blue jean trousers, size 34, were found in a refuse
container just over one kilometre from the area where the bodies had been
found. An examination of the jeans revealed that they had been exposed to high
velocity spraying of blood. The trousers were heavily blood stained, particularly
below the knees. The blood on the jeans was consistent with that of the victims.
Five of the victims’ travellers’ cheques were cashed at petrol stations on 4 and
5 October. There was a bloodlike substance under the fingernails of the female
victim.
Andrew Rose was convicted of the two murders at his first trial in 1991. He
successfully appealed against his conviction in 1992, because of misdirection
to the jury by the trial judge. A second trial commenced in April 1994. He was
again convicted of two counts of second-degree murder. At both trials, the main
witness against Rose was Madonna Kelly, who was a friend of Rose’s at the time
of the murders. There was no other evidence against him. During the summer
of 1983 they had both worked on a farm near Chetwynd. Ms Kelly did not
inculpate Rose until August 1989. Her alleged conversation with Rose in 1983
came to light because she had mentioned the conversation to a drug dealer who
was staying with her in 1989.
Kelly’s story was that in the early morning of 3 or 4 October 1983, Rose came
to her trailer and told her he had killed two people. He was allegedly wearing
blood stained jeans. Kelly’s evidence was crucial in convicting Rose; without
it there was no case to answer. After reporting the alleged conversation with
Rose to the police in 1989, Kelly at the request of the police had a one hour
telephone conversation with Rose on 7 September 1989 where she tried to get
him to confess to the murder. Rose persistently insisted that he had not killed
anybody and denied having confessed to her in 1983. However, he admitted
that one night he had had a fight outside a bar. He forcefully challenged Kelly
and claimed that he would not have had access to a gun.
The circumstantial evidence was largely in Rose’s favour. He did not own a
car, he had no access to firearms, he did not cash the five travellers cheques
belonging to the victims, and none of the forensic evidence found at the crime
scene implicated him. What did appear to match is that Rose wore size 34
jeans, but those linked to the murder could not be proven to be his. Subsequent
to the second trial, Rose voluntarily provided the police with a blood sample for
further DNA testing of the bloody jeans and the fingernail clippings from the