An accused’s confession can sway the jury in favour of the prosecution’s case, but what happens when the statement containing the alleged admission is incomplete? This issue was explored in detail in the recent decision of R. v. Merritt from the Court of Appeal for Ontario.
Confessions and admissions of guilt
Juries tend to attribute great weight to an admission of guilt from the accused that they committed the crime. Such confessions may take place in different settings, for example, in video-recorded interviews with police, in intercepted conversations with accomplices, or in admissions to other people that act as witnesses for the prosecution.
Where the alleged admission is part of an incomplete statement
Given the potential for prejudicial use of confessions, certain safeguards apply when introducing them into evidence. One such safeguard operates when the admission forms part of an incomplete statement. This could happen in many situations, such as where the witness only heard one side of a telephone conversation or the alleged admission is part of an audio recording that is partially inaudible.
In such circumstances, the partial statement is only admissible if there is sufficient context for the finder of fact (such as the jury) to be able to give meaning to the words that are overheard. The statement will be inadmissible for lack of relevance if there is insufficient context.
If the statement also has sufficient probative value to overcome its risk of prejudice, it will be up to the finder of fact to decide whether it is an admission of guilt.
Grandfather found dead following custody dispute
Turning to the case of R v. Merritt, Ms. Merritt married Mr. Harrison in 2002 and they had two children together. They later separated and a bitter custody dispute ensued.
After the separation, Mr. Harrison moved in with his parents and exercised 50% parenting time. This time was later to be spent by the children with his parents, following his imprisonment for 18 months. Shortly after this variation to the parenting order, Mr. Harrison’s father was found dead at home with a sternum fracture but no other signs of violent injuries.
Ms. Merritt left Ontario along with the parties’ children and her new partner, Mr. Fattore. She was arrested in Nova Scotia and the two children were returned to Mr. Harrison’s mother.
Father and grandmother also die in suspicious circumstances
In the meantime, Mr. Harrison was released from prison and sought sole custody. Before this was determined in his favour, his mother was found dead at home at the bottom of a staircase. The cause of death was neck injuries either from falling or strangulation.
A few years later, Ms. Merritt sought joint custody. While this was outstanding, Mr. Harrison was found dead in his bedroom from an apparent homicide.
Mother and new partner were charged with first-degree murder
There was a “powerful forensic case” against Mr. Fattore for the death of Mr. Harrison. One aspect of this was Walmart shoes found in Mr. Fattore’s garbage bin, which video footage showed him purchasing the evening prior to the murder, that contained a dog hair consistent with Mr. Harrison’s dog.
Intercepted conversations between Ms. Merritt and Mr. Fattore incriminated both of them. They were later arrested for the murders of Mr. Harrison and his mother. Mr. Fattore confessed, saying he committed the murders without Ms. Merritt’s knowledge.
In a later intercepted statement, parts of which were unintelligible, Ms. Merritt was heard saying “(unintelligible) the audio tapes would’ve f$@&ed us anyways.” Both were charged with first-degree murder on the theory that she encouraged him to kill Mr. Harrison and his mother.
Mother argued that the statement was not an admission of guilt
The jury acquitted Ms. Merritt of the mother’s murder but found her guilty of killing her ex-husband. Mr. Fattore was found guilty of both murders. Both parties appealed their convictions. The remainder of this article looks at Ms. Merritt’s arguments.
Ms. Merritt argued that the trial judge erred by not telling the jurors that the intercepted statement, if it was partially inaudible, could not be treated as a confession unless they could determine its meaning from the context.
She also claimed that the judge misdirected the jury relating to her failure to tell police that Mr. Fattore purchased shoes from Walmart. She argued that she could have lied for reasons other than hiding her own complicity in the killing, such as to protect her partner, and the direction to the jury that they could not ignore her innocent explanation if they were not persuaded “because of the absence of evidence” that she lied to hide her own guilt, inappropriately reversed the burden of proof.
Court of Appeal ordered a new trial
The Court of Appeal said that “jurors must be told that if they cannot determine the meaning of the partial statement, they cannot use it as an admission.”
The Crown relied on part of a sentence as an admission of guilt. The missing words could have completely changed its meaning. The Court of Appeal decided that the trial judge should have told jurors that if they could not determine what Ms. Merritt meant after considering the context, they should take nothing from the partial statement.
The Court of Appeal also decided that the trial judge committed an error in requiring the accused to present evidence consistent with their innocence. This was incompatible with the presumption of innocence.
As a result, the Court of Appeal set aside Ms. Merritt’s conviction and ordered a new trial.
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