1. 2017 OTLA Webinar
Sexual Assault Cases: Overcoming Significant Client Credibility Issues
Loretta Merritt
March 27, 2017

2. EVERYBODY LIES Each of us is deceived in some way 10 to 200 times/day
Strangers lie to one another approximately 3 times within the first 10 minutes of meeting
Men lie about themselves 10 times more often than do women

3. REASONS PEOPLE LIE To benefit another To avoid conflict
To appear better (self-promotion)
To protect self
To benefit self
To harm another (malicious intent)

4. KOKO THE GORILLA

5. LYING AND LIE DETECTION
Most people think they are good at detecting lies but are poor liars
Research shows the opposite

6. THE RESEARCH STUDIES
Video tapes shown to police, psychiatrist, federal judges, secret service agents, polygraphers, college students
Only secret service agents scored above chance (64%)
Canadian Federal Parole Officers (40.4%)
Police Officers only able to detect lying at level of chance
Forensic psychologists and psychiatrists (46.7%)

7. ERRONEOUS BELIEFS There is a single sign of deception
Nervousness, gaze aversion, fidgeting are reliable signs of deception
Particularly a problem with cross-cultural fact finding

8. PORTER ET AL (1999) When telling lies, people tend to:
Provide too much detail
Repeat information
Claim that the memory is extremely vivid/exaggerate
Rarely admit to not remembering
Use more word pauses
Speak more slowly
Engage in more eye contact

9. OTHER DECEPTION INDICATORS?
Blink rate
Speech prompting gestures
Body language
Face hiding
First person singular

10. FACTORS THAT AFFECT MEMORY
Age
Ability to understand events
Delay / passage of time
Reminders or cues
Opportunity to recall and review events

11. MEMORY OF TRAUMATIC EVENTS
Difficulty recalling all details
Age and nature of the abuse are factors
Gaps
Order of events
Context and time perspective

12. MEMORY OF TRAUMATIC EVENTS (Continued)
Flashbacks
Peripheral details
Attending to detail and encoding
Dates
Disassociation
Emotion

13. CHILDHOOD SEXUAL ABUSE
Key components remain clear
Peripheral details may be wrong
Dates and times
Degree of trauma
Sensory memory
Inability to distinguish between particular incidents of abuse

14. ASSESSING MEMORY Suggestive techniques
Consistency of central events vs. peripheral information
Individual’s tendency for suggestibility or disassociation
Corroboration
Alcohol and drug

15. ASSESSING CREDIBILITY
Demeanor
Unreliable
Coaching
Likely to backfire
Come across as programmed

16. ASSESSING CREDIBILITY (Continued)
Prior Findings of Credibility
Criminal record (Evidence Act)
Type of offense
Guilty plea or trial?
Lies under oath
Prior finings of credibility

17. ASSESSING CREDIBILITY (Continued)
Prior inconsistent statements
Therapy or other medical records
Police statements
Criminal Injuries Compensation Board applications or hearing evidence
Prior statements to family, friends, clergy, etc. (verbal or written)

18. THE DISCLOSURE PROCESS
Silence
Denial
Evolving story

19. OTHER VICTIMS Evidence of bad character generally not admissible
Exception, similar fact evidence

20. CORROBORATIVE EVIDENCE
Prior consistent statement (oath helping vs. refuting the defense of recent fabrication)
Other corroboration
The surrounding story
Unusual markings

21. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS
The initial call/meeting
Do not expect the full details
First call – basics, I.D. perpetrator, type and number of assaults
First meeting - a bit more information. If institutional case, how perpetrator and child met
In writing – get the full story

22. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Pleadings
Be general
Leave room to expand
Motions for particulars

23. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Jury or Non-Jury?
Factors to consider
Government defendants

24. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Affidavit of Documents
Obtain all records (everyone they told who could have possibly put it in writing)
Send records to Plaintiff well in advance of discovery and point out areas where they will be questioned
When doing records review and summary, make note of any place where they tell the story (verbatim)
If changing story, do a disclosure chronology

25. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Examination for Discovery
Hear the explanations before the Discovery
Disclose all abuse
Think about impact
Don’t get sucked into format (1st incident, 2nd incident, etc.)
Review claim and records
Core issues vs. everything else (“the dog died”)
How to deal with anger

26. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Expert Assessments/Evidence
Tell the client about the validity indicators
Tell the client to tell the full story
Make sure Plaintiff’s experts see everything before they see the client including Discovery transcripts
Communications with experts covered by litigation privilege (Moore v. Getahun, 2015 ONCA 55 (CanLII))
Memory expert
Ghomeshi case

27. HOW TO DEAL WITH POTENTIAL CREDIBILITY PROBLEMS (Continued)
Preparation for Trial
Need to review every version of the story ever told
Need to review all records (medical, police, criminal transcripts, discoveries, CIBC, etc.)
Discuss inconsistencies
The bad evidence must come out in the opening and/or Examination in Chief

28. CASE STUDY: JESSIE IMESON
The defense position
The opening statement
The examination in chief
The records
Our corroborating evidence vs. theirs – LinkedIn profile
Defence theory
Group home defendant / “expert”
The closing

29. Loretta Merritt