A Canadian Perspective - Serial: Episode 3

For those who have been living under a rock, Serial is a 12 part investigation into the 1999 Baltimore murder of Hae Min Lee, a 18-year-old high school student. Lee's ex-boyfriend and class mate, Adnan Masud Syed, was arrested and charged with first-degree murder.  After a six-week trial Syed was found guilty.

Episode 3 - it is all about alternate suspects.

Alternate suspects are a complicated area of the law - but an interesting one.  Below is a brief - and admittedly very concise discussion of the issue.

It’s February 9, 1999. Hae has been missing for three weeks. A man on his lunch break pulls off a road to pee, and stumbles on her body in a city forest. His odd recounting of the discovery makes Detectives Ritz and MacGillivary suspicious. For instance, why did he walk so far into the woods - 127 feet - to relieve himself? And that’s just the start. A look into the man’s past reveals some bizarre behavior.
— http://serialpodcast.org/season-one/3/leakin-park

So, should Adnan's defence team advance the theory that the man who discovered Hae's body could have been the killer? 

I tend to think not - alternate suspects are a high risk, high reward strategy. In Adnan's case it seems the costs could well have outweighed the benefits.

In Canada the decision by an accused to implicate an alternate suspect or attack the integrity of the investigation is a permitted but risky strategy.  

Implicating alternate suspects - or third parties - is permitted in Canadian law for obvious reasons.  In R. v. McMillan the Ontario Court of Appeal succinctly described the relevance of alternate suspects:

I take it to be self-evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: see Wigmore on Evidence, 3rd ed. (1940), vol. 1, p. 573, s. 139. A may prove that B murdered X either by direct or circumstantial evidence.

However, the defence is not given carte blanche to point the finger. 

An accused must adduce evidence that: there is other evidence tending to show that the third person committed the crime, and that the disposition of the third party to commit the offense can be proved by admissible evidence.

The courts have held that there must be a connection between the third party suspect and the offence.  It is not enough to show that the third party is generally a violent or unsavory character.

For an accused to advance a third party defence the court must find that the evidence has an air of reality - there must be evidence which could give rise to a reasonable doubt.

Bottom line - there needs to be sufficient connection between the third party and the crime,  without such a link the third party evidence would not be relevant nor probative and thus not admissible.

But as with all trial strategies where there is a benefit there can also be a cost.

The risk is that the accused in advancing third party suspect evidence may open the door for the Crown to present evidence that may otherwise be inadmissible - for example evidence about the bad character of the accused, the accused propensity for violence, or hearsay evidence about the police investigation or theory.

This type of evidence is typically inadmissible for a good reason - it can be very prejudicial to an accused and could result in an unfair trial.

An alternate suspect can be powerful defence. But counsel must think many moves ahead - how will the Crown respond and can the strategy backfire.

In Adnan's case the only connection between the alternate suspect and the offense was his discovery of the body.  The fact that he had a checkered past or was a suspicious character is of little assistance in showing an air of reality to the proposition that he was the killer.

In a Canadian court I doubt very much the defence would have even been able to advance the alternate suspect theory - even if that hurtle was passed - given the weakness of the alternate suspect theory I suspect the risks would have well outweighed the reward.

Remember the accused - Adnan - need not prove his innocence.  He need not solve the crime or discover the true perpetrator.  He only need raise a reasonable doubt about his guilt - a doubt that as of episode 3 - I still have.