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60 Question 1 {recommended time: one hour and 50 minutes)

Scott Barnes is charged with the murders of Ahmed Khan and Jana Khan. The trial will be heard by a judge and a jury. You
are a law clerk assigned to the trial judge.

Based on the following information, identify the evidence you anticipate the parties will rely on at trial, the objections
you anticipate may be raised with respect to the admissibility of that evidence, and the evidentiary issues the trial judge
will need to decide.
At about 1:00 a.m. on June 5, 2014, police, responding to a 911 report of a break-in, entered a single family home on a quiet
street in West Vancouver and discovered a horrific crime scene.

The house was ransacked. Cupboards were open and their contents strewn across the floor. Upstairs, in the master
bedroom, police found two dead bodies. Blood was everywhere in the bedroom, on the walls and on the carpet. The
victims appeared to have been bludgeoned to death.

The 911 call was placed by Omar Khan. The murder victims were his parents.

Omar and his friend, Scott Barnes, were staying with Omar's parents while they looked for an apartment to share for the
summer.

Omar was 18 years old in 2014. He had just completed his first year at Cornell University in New York State.

Scott was also 18 years old, and the son of a wealthy Vancouver family. He attended the same private school as Omar. Scott
was taking time off before university to develop his skills as an aspiring screenwriter.

Omar told the police that he and Scott returned from a night out and walked in on "some sort of break-in." Omar said they
were concerned the perpetrators might still be in the house, so they left quickly and called 911 from down the street.
The police took Scott and Omar to the station. In separate statements, voluntarily provided, Scott and Omar gave full
accounts of their whereabouts that evening. According to those statements, Scott and Omar left the Khan house shortly
after 8:00 p.m., attended a 9:00 p.m. movie in downtown Vancouver, and then stopped for a late dinner and drinks before
returning to West Vancouver after midnight.

Scott and Omar also consented to a lawful inspection of their clothes and their skin for traces of blood. None was found.

Credit card receipts that Scott and Omar provided to the police established that they had purchased movie tickets at a
theatre in Vancouver shortly before 9:00 p.m., and paid for dinner and drinks at a restaurant in Vancouver shortly after
midnight.
A waitress working at the restaurant remembered serving the two boys because they left her a large tip.
But something bothered the police. They found no evidence of forced entry at the house, and nothing of any value appeared
to be missing. The only fingerprints investigators found in the house were those of Mr. and Mrs. Khan, Omar or Scott.

A medical examiner determined that the murder weapon was most likely a baseball bat; however, no baseball bat was
found despite extensive searches of the surrounding area. These facts were not made public.

Police interviewed the neighbours. No one reported hearing or seeing anything unusual.

Police began building a case against Scott and Omar based on what investigators perceived to be their odd behaviour
following the murders.

One of the attending officers on the 911 call, Constable Leslie Martin, told investigators that the two boys seemed, ''very
calm and cool", and that Omar "did not react in the usual way'' upon learning that his parents were dead. Also, in Constable
Martin's opinion, "looking at the state of that house, this looked like someone set it up."

Constable Martin also told investigators that she observed Scott and Omar laughing together at the police station. And she
noted that Omar failed to attend the funeral for his parents.
Police also began looking into the boys' past.

They discovered that, while in high school, Scott wrote a play about two brothers who killed their parents with a baseball bat
to collect on a life insurance policy.

Police also learned that, when Scott was 16, he staged an elaborate cover-up to conceal the fact that he had damaged the
family car. Scott was driving the car when he hit a telephone pole. He collected the parts that broke off of the car, drove to
a movie theatre parking lot and staged a scene to make it appear the car had been hit there. Scott bought a ticket for the
movie to support his claim that an accident occurred while he was in the theatre. ICBC later determined that the car was
not damaged in a collision with another car, and denied the claim.

Police obtained a valid judicial authorization to wiretap the boys' cellphones. Neither Scott nor Omar made any statement on
the telephone that would implicate them in the murders. A lawful search of their apartment and laptop computers failed to
produce any incriminating evidence.

Eventually, the case grew cold.

One day in 2015, after Omar had returned to university, Scott struck up a conversation with a stranger at a coffee shop.
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Scott told the stranger that he had written a screenplay about two friends falsely accused of murder, but needed financing
to start filming. The stranger, who introduced himself as Jim, said he knew someone who could help: his boss, Mr. Jones.
Jim took Scott to meet Mr. Jones at a penthouse apartment overlooking Vancouver Harbour. Mr. Jones said Scott's film was
the kind of project he might be interested in, but Scott would first need to earn his trust. Mr. Jones told Scott to work with
Jim, and to do whatever Jim told him to do.
Scott's first assignment from Jim was to drive a car from Vancouver to Calgary, and fly back. After he returned, Jim told Scott
that the car was stolen.

Over time, Scott delivered a number of cars that Jim told him were stolen. Scott also deposited cash in various bank accounts
at Jim's direction. Jim told Scott these deposits were part of a money laundering operation.

In all, Scott performed 12 assignments over a period of about six months. Sometimes Jim would text Scott to set up a
job; but more often than not Scott would contact Jim and ask for his next assignment. For each day's work, Jim paid
Scott $2,000 cash.

During this time period, Scott began dating a woman named Nicole Shifrin. Scott told Nicole about the car theft and money
laundering operation, and his role in it. Scott told Nicole that he only participated because he was scared of Jim and Mr. Jones
and what they might do ifhe quit. "I know too much", he told Nicole.

In December 2015, Jim told Scott that Mr. Jones knew someone "on the inside" with the West Vancouver Police Department
who had warned him against investing in Scott's film because Scott was still a suspect in the Khan murders and "an arrest
was coming."

Jim showed Scott a memo on West Vancouver Police letterhead which had some scientific language about DNA evidence
linking Scott and Omar to the murders. Jim said Mr. Jones could arrange to have his police contact destroy the DNA
evidence, but first he would need Scott to tell him exactly what happened in the Khan house the night of the murders. Jim
explained that the contact could not destroy all of the evidence unless he knew the details of the crime.

Scott met with Mr. Jones again at the penthouse apartment.

Mr. Jones asked ''what's this all about?" referring to the police memo. Initially, Scott claimed ignorance. ''There has to be a
mistake" he said, ''the police cleared us." This seemed to make Mr. Jones angry. "Don't lie to me" he said, "it's right here in
black and white - you need to deal with this." Scott replied that the police must be framing him to get an arrest.

After some further and forth, Scott relented. It was true, he said: he and Omar had killed Omar's parents. And now he
needed Mr. Jones' help to destroy the DNA evidence. "First, tell me how you did it", Mr. Jones said.

It was a perfectly executed plan, Scott told Mr. Jones. He and Omar set up an alibi by purchasing tickets to a movie in
Vancouver. After they purchased the tickets, they returned to the house in West Vancouver, snuck into the house, and killed
the Khans in their bed with a baseball bat. Then they ransacked the house, Scott said, to make it look like a break-in, and
rushed back to be seen having dinner in Vancouver, disposing of the bat in the ocean along the way. Mr. Jones asked how
they avoided getting blood on their clothes. Scott said they did the killing naked and then took showers.
At the end of the meeting, Scott asked about financing for his film. Mr. Jones said he would have to think about it. Scott
expressed frustration and swore at Mr. Jones as he left the apartment.
The meeting between Scott and Mr. Jones was secretly video-taped by police officers. Jim and Mr. Jones were both
undercover RCMP officers.

RCMP investigators travelled to Cornell University to confront Omar. After identifying themselves as police officers, they
told Omar that Scott had confessed and implicated him in the crime. Omar agreed to give a statement. The statement was
taken down in writing by Officer Jim Davis in Omar's dorm room. It was not recorded or video-taped.

Omar told Officer Davis that the murders were Scott's idea. Omar said he would never have harmed his parents; but he was
scared of Scott because Scott was ''kind of crazy'', so he went along with the plan. Omar told Officer Davis that Scott
planned in advance to stay with the Khans prior to committing the murders. "Ifhe was living in the house previously'', Omar
said, ''then any :fingerprints or whatever samples that were collected wouldn't necessarily mean that he had done it."
Omar told Officer Davis that Omar's role on the night of the murders was limited to standing watch. Omar said Scott did
the killing with a baseball bat, after which they went to Vancouver to be away from the house when the police arrived, and
Scott disposed of the bat in a dumpster in Vancouver.
Scott was arrested and charged with murder. Omar disappeared before the necessary paperwork could be completed for his
arrest. He has not been found since.
*** End of Question 1 ***
Based on the provided information, the parties are likely to rely on the following evidence at trial:

Evidence for the Crown:

1. Crime Scene: The police will present evidence of the crime scene, including photographs and forensic analysis, to establish
the brutal nature of the murders and the lack of forced entry.
2. 911 Call: The Crown will present the recording of the 911 call made by Omar Khan, reporting the break-in and the murders of
his parents.
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3. Statements to Police: The Crown will introduce the separate statements given by Scott Barnes and Omar Khan to the police,
detailing their whereabouts on the night of the murders and their reactions to the crime scene.
4. Credit Card Receipts and Witness Testimony: The Crown will present evidence from credit card receipts and the restaurant
waitress to corroborate Scott and Omar's alibi of attending a movie and having dinner in Vancouver on the night of the
murders.
5. Behaviour of Scott and Omar: The Crown will rely on witness testimony, particularly that of Constable Leslie Martin, regarding
Scott and Omar's behaviour at the crime scene and the police station, suggesting their possible involvement in the murders.
6. Prior Incidents and Writings: The Crown may present evidence of Scott Barnes' past play depicting a similar murder scenario
and his staged car accident, which could be used to suggest a motive or pattern of behavior.

Evidence for the Defence:

1. Alibi: Scott and Omar will likely present evidence to support their alibi of attending a movie and dinner in Vancouver on the
night of the murders, including receipts and testimony from witnesses.
2. Lack of Forensic Evidence: The defence may argue that the absence of blood on Scott and Omar's clothes and their skin, as
well as the lack of physical evidence linking them to the crime scene, raises doubts about their involvement.
3. Witness Credibility: The defence may challenge the credibility of witnesses, including Constable Leslie Martin, to cast doubt
on their observations and interpretations of Scott and Omar's behaviour.
4. Police Investigation: The defence may scrutinize the police investigation for any flaws or errors that could have led to the
wrongful accusation of Scott and Omar.

Anticipated objections and evidentiary issues:

1. Hearsay: The defence may raise objections to the admissibility of certain statements made by Scott and Omar to Officer Jim
Davis (undercover RCMP) and Omar's written statement, as they could be considered hearsay if offered for the truth of the
matters asserted.
2. Expert Testimony: If the Crown introduces expert testimony, the defence may challenge the qualifications or methodologies
of the experts and seek to exclude or limit their opinions.
3. Character Evidence: The defence may object to the introduction of evidence about Scott's past play and staged car accident,
arguing that it constitutes improper character evidence.
4. Chain of Custody: The defence may raise concerns about the chain of custody of any physical evidence and argue that it was
not properly handled or preserved.

The trial judge will need to assess the relevance and admissibility of the evidence presented by both parties, rule on any objections
raised, and determine the weight and credibility of the evidence during the trial. The judge will also need to give appropriate instructions
to the jury on the use of certain evidence, such as prior incidents or character evidence, to ensure a fair trial.

25 Question 2 {recommended time: 45 minutes)

The defence has given proper notice that it will tender Leo Richards as an expert witness at the trial of Scott Barnes for the
murders of Ahmed Khan and Jana Khan.

Dr. Richards is a professor of criminology at Simon Fraser University. Dr. Richards holds a Ph.D. in criminology from Oxford
University. He has written and testified extensively on the topic of false confessions. He is the author of a non-fiction book
called, "Inside the Interrogation Room - A Profile of Police Abuse". He was a consultant on the Netflix series, "The
Confession Tapes".

Dr. Richards is also the director of the Simon Fraser Innocence Project, which advocates on behalf of the wrongfully
convicted. When he has testified, Dr. Roberts has always testified for the defence.
Dr. Richards' expert report concerns the psychology of police interrogations, the phenomena of false confessions, and, in his
words, "the erroneous but commonly held belief that people do not confess to crimes they did not commit."

In his report, Dr. Richards discusses a number of custodial police interrogations that have resulted in confessions which
were later determined to be false. He explains:

"Sometimes people who are in custody make false statements, even if they are not physically tortured. There is
psychological research that explains how certain police interrogation techniques lead people to make the decision to
confess, whether they are guilty or innocent. And there are certain principles of analysis to
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evaluate whether a confession is true or false. In testing the reliability of confessions, researchers generally
examine whether the statement fits the facts of the crime and demonstrates that the suspect had actual
knowledge of the facts."

Dr. Richards concludes:

"If the confession in this case is false, it is consistent with a category of false confessions identified in the academic
research. This is a situation where an innocent suspect knowingly confesses falsely in order to escape continuing
pressure, fear and coercion of the interrogation environment."

The trial judge has directed that a voir dire be held to determine the admissibility of Dr. Richards' expert report.
Provide your analysis of the evidentiary issues the trial judge will need to decide on this voir dire.
*** End of Question 2 ***

During the voir dire to determine the admissibility of Dr. Leo Richards' expert report, the trial judge will need to address several evidentiary issues:

1. Qualifications of the Expert Witness: The trial judge will need to assess Dr. Richards' qualifications and expertise in the field of criminology,
particularly regarding false confessions and the psychology of police interrogations. The judge will consider Dr. Richards' educational
background, professional experience, publications, and prior testimony to determine if he meets the criteria to be recognized as an expert
witness.
2. Relevance of the Expert Testimony: The trial judge will evaluate whether Dr. Richards' expert testimony is relevant to the issues in the
case. The defence will likely argue that Dr. Richards' expertise on false confessions is pertinent to assessing the reliability of Scott Barnes'
alleged confession, especially if the defence's theory is that the confession was coerced or falsely obtained. The judge will consider
whether Dr. Richards' testimony can assist the jury in understanding complex psychological phenomena related to false confessions.
3. Reliability of the Expert Opinion: The judge will assess the reliability and validity of Dr. Richards' expert opinion. The Crown may challenge
the scientific basis of Dr. Richards' conclusions or argue that his analysis is not grounded in widely accepted principles in the field of
criminology. The trial judge will have to weigh the scientific basis of Dr. Richards' report and whether it meets the Daubert or Mohan
criteria for expert evidence admissibility.
4. Balance and Fairness: The judge will consider whether Dr. Richards' testimony is balanced and unbiased. The fact that he has only testified
for the defence in prior cases may be raised as a concern by the Crown, suggesting a potential bias towards the defence's position. The
trial judge will have to determine if Dr. Richards' opinions are impartial and based on the objective analysis of the evidence.
5. Novelty of the Expert Evidence: The judge will examine whether Dr. Richards' testimony presents novel or unconventional theories. If his
analysis is outside the mainstream understanding of false confessions or police interrogation techniques, the judge may be more cautious
about admitting his evidence.
6. Probative Value versus Prejudice: The trial judge will weigh the probative value of Dr. Richards' expert report against any potential
prejudice it may cause. If the evidence has substantial probative value in assessing the reliability of Scott Barnes' confession, the judge
may admit it. However, if its prejudicial impact outweighs its probative value, the judge may exclude the evidence.
7. Scope of the Expert Testimony: The judge will determine the appropriate scope of Dr. Richards' expert testimony. The defence may seek
to have him testify about general principles related to false confessions and police interrogation techniques. The Crown may object if his
testimony delves into specific details of the case or offers opinions on Scott Barnes' guilt or innocence, as that would be considered
commenting on the ultimate issue, which is typically not allowed.

The trial judge's decision on the admissibility of Dr. Richards' expert report will have a significant impact on the case, as his testimony could provide
critical insights into the reliability of the alleged confession and influence the jury's assessment of Scott Barnes' guilt or innocence.

15 Question 3 (recommended time: 25 minutes)

The Khan murders were widely reported in the media.

An investigative journalist wrote a story about the investigation in a respected national newspaper called Canada Today. He
reported that, according to a source, who spoke on the condition of anonymity, the police fabricated an internal memo
linking Scott Barnes and Omar Khan to the crime, based on DNA evidence that never existed, and then used that memo to
help convince Scott to confess.

The defence has brought a pre-trial application for an order requiring Canada Today to produce all documents relating to
this article. Canada Today and the Crown oppose the application. Provide your analysis of the evidentiary issues the trial
judge will need to decide on this application.

The pre-trial application for an order requiring Canada Today to produce all documents relating to the article about the Khan murders raises
several evidentiary issues that the trial judge will need to decide. Here are the key issues:

1. Relevance and Materiality: The trial judge will assess the relevance and materiality of the documents sought from Canada Today.
The defence will likely argue that the journalist's article is relevant to the case as it questions the integrity of the police
investigation and suggests potential misconduct in the collection and presentation of evidence, specifically the alleged fabrication
of an internal memo. The judge will consider whether the documents may contain information that could affect the credibility of
the evidence against Scott Barnes or raise doubts about the confession's reliability.
2. Journalist's Privilege and Source Protection: Canada Today is likely to assert journalist's privilege, which is a legal protection that
allows journalists to withhold their sources and unpublished materials to preserve the confidentiality of their reporting process.
The trial judge will have to balance the right of the defence to obtain potentially relevant evidence against the principle of source
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protection, which is crucial for a free press and investigative journalism. The judge will need to determine if there are compelling
reasons to override journalist's privilege in this case.
3. Public Interest and Fair Trial Rights: The trial judge will consider the competing interests of public interest and the right to a fair
trial. The defence may argue that disclosure of the documents is necessary to ensure a fair trial for Scott Barnes, as they may
contain evidence that challenges the credibility of the police investigation and the alleged confession. On the other hand, Canada
Today and the Crown may assert that the public interest in preserving journalist's privilege and maintaining the independence of
the press should take precedence.
4. Freedom of the Press and Section 2(b) of the Charter: The issue of freedom of the press may also arise in this application. The
defence may contend that access to the documents is essential to Scott Barnes' ability to make full answer and defence, as
protected under Section 7 of the Canadian Charter of Rights and Freedoms. The trial judge will have to balance the accused's right
to a fair trial with the press's right to freedom of expression under Section 2(b) of the Charter.
5. Standard of Production: If the trial judge orders Canada Today to produce documents, the judge will need to determine the scope
and standard of production. The defence may seek all documents related to the article, including notes, drafts, communications,
and sources. The judge will assess whether the defence's request is overly broad or if a more limited production would be
sufficient to address the relevant issues.

In summary, the trial judge will need to carefully balance the interests of the defence in obtaining potentially relevant evidence against the
press's right to source protection and freedom of expression. The judge will consider the relevance of the documents, the potential impact
on the fairness of the trial, and the importance of preserving the integrity of investigative journalism. The judge's decision will significantly
impact the defence's ability to challenge the evidence against Scott Barnes and the overall conduct of the police investigation.