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Khoday on Judicial Approaches to Cell-Plants Interrogation in Canada & the United States

By Lawrence Solum

Amar Khoday (Faculty of Law, McGill University) has posted Uprooting the Cell Plant: Comparing United States and Canadian Constitutional Approaches to Surreptitious Interrogations in the Detention Context (Western New England Law Review, Vol. 31, No. 1, 2009) on SSRN. Here is the abstract:

This article examines judicial approaches to cell-plant interrogations in Canada and the United States. These are surreptitious interrogations whereby the police inject an undercover state agent into the detention environment with the goal of eliciting inculpatory statements from an accused. The article analyzes and compares the strengths and weaknesses of the applicable legal tests emanating from the right to silence found in section 7 of the Canadian Charter of Rights and Freedoms and the Sixth Amendment right to counsel of the U.S. Bill of Rights. Although in both countries, an accused may seek to have their incriminating statements excluded from evidence where they successfully persuade the court that such statements were elicited by an undercover state agent, police have managed to exploit loopholes currently embedded within the current legal tests. This has consequently led to the admission of incriminating statements and subsequent convictions thus undermining the importance of the relevant constitutional protections. Through a comparative study, this article proposes how to strengthen the current legal tests by closing the loopholes which permit state actors to undermine constitutional protections afforded to criminal defendants.

Full post as published by Legal Theory Blog on April 02, 2009 (boomark / email).