HIS MAJESTY THE KING - v. -, 2023 SKKB 16

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 16 Date: 20 23 01 20 Docket: CRM-YT-00013-2022 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - JOHN MALCOLM MACDONALD RESTRICTION ON PUBLICATION: By court order made under subsection 517(1) of the Criminal Code , these reasons shall not be published in any document, or broadcast or transmitted in any way until the end of the trial. The restriction on publication has been lifted pursuant to the judge’s order of October 19, 2023. Counsel: Todd J. Wellsch for the Crown Nicolas Brown for the accused DECISION ON VOIR DIRE LAYH J.

January 20, 202 3 THE ISSUE [ 1 ] This decision must determine the legal point to balance two competing and critically important legal principles: protection of an accused’s rights and fairness in the criminal process and society’s need to investigate and solve crimes. Once that point has been established, the facts surrounding the investigation of John MacDonald in a sexual assault allegation must be applied to determine whether a confession he offered to a police officer after he “failed” a polygraph test was voluntary. [ 2 ] Voluntariness of confessions is a frequent issue to come before the court.

Just last month, December 2022, the Supreme Court again reviewed how Canadian Charter of Rights and Freedoms [ Charter ] rights and the common law principles of fairness determine the voluntariness of a confession. In R v Beave r, 2022 SCC 54 the accused persons were detained in a homicide case. When homicide detectives realized that their colleagues had breached the accused persons’ Charter rights, they promptly tried to make a “fresh start” by advising the accused parties of their Charter rights and then arresting them for murder.

When questioned separately, they initially denied any knowledge of how the deceased had died. Eventually, though, they both confessed to killing him. In a five – four split the Supreme Court agreed with the trial judge that the confessions were voluntary. The headnote summarizes principles applicable to my determination of Mr. MacDonald’s voir dire : Voluntariness, broadly defined, is the touchstone of the confessions rule.

It is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. The application of the confessions rule is necessarily flexible and contextual.

When assessing the voluntariness of a confession, the trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would shock the community, and the presence or absence of a police caution.

These factors are not a checklist and do not supplant a contextual inquiry. Absent an error of law in relation to the applicable legal principles, a trial judge’s application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference… [ 3 ] This quotation provides the broad framework within which Mr. MacDonald’s confession must be considered.

THE FACTS Interview by Cpl. Cote on May 7, 2020 [ 4 ] If the Indictment cites the correct year, 2017, at the time of the alleged sexual assault, Mr. MacDonald was 20 years old and the complainant, T.P. was 12 years old. The Royal Canadian Mounted Police [R.C.M.P.] learned of the alleged assault in 2020 when T.P. told her social worker of the incident and the social worker informed the R.C.M.P. [ 5 ] In the voir dire held to determine the voluntariness of Mr. MacDonald’s statement, the court heard viva voce evidence from two Crown witnesses, Cpl. Larkin Cote who took an initial warned statement from Mr.

MacDonald and from Sgt. Gabriel Buettner who conducted the videoed (and transcribed) polygraph test and Mr. MacDonald’s “confession.” Mr. MacDonald’s father, Jason MacDonald, was the only defence witness. Mr. MacDonald did not testify. [ 6 ] On February 4, 2020, Cpl. Cote received a telephone call from a social worker in Fort Qu’Appelle, Saskatchewan respecting an alleged sexual assault upon T.P. After the R.C.M.P. took a statement from T.P., Mr. MacDonald became aware that the R.C.M.P. were looking for him. Mr. MacDonald reached out to the R.C.M.P. and presented himself to Cpl.

Cote on May 7, 2020 at the Broadview, Saskatchewan detachment. Defence counsel has raised no objection to the way in which Cpl. Cote took a non- custodial, warned statement from Mr. MacDonald. The interview lasted approximately 45 minutes. A transcription of the interview was exhibited. [ 7 ] During the interview, Mr. MacDonald offered unusual responses to Cpl. Cote’s direct question, “Have you ever had sex with [T.P.]?” The transcript continues [pp. 8 and 9): John MacDonald: No. Cpl. Cote: No? Not even in 2017, but even after? Even before? John MacDonald: Not that I recall. Cpl. Cote: Not that you recall?

John MacDonald: Even…even if… and even if I would recall, I don’t think I would want to. [ 8 ] Mr. Macdonald described walking with T.P. in Kipling, Saskatchewan for a couple of hours. Cpl. Cote, seemingly from his familiarity with an earlier statement given by T.P., asked Mr. MacDonald if the topic of sex came up during the walk. Mr. MacDonald replied, “Yeah.” Cpl. Cote continued his questioning at page 18, as follows: Cpl. Cote: … Okay, so at that time…like. When you guys were walking around, at any point during that …during that walk, did you have sex with [T.P]? John MacDonald: I don’t recall. Cpl.

Cote You don’t recall? John MacDonald. No. Cpl. Cote: So definitely, yes or no? Like you don’t recall, that’s kind of…. [ 9 ] Later in the interview, Cpl. Cote asked Mr. MacDonald if he would like to clear his name by taking a polygraph exam. After some discussion, Cpl. Cote presented Mr. MacDonald with a “Polygraph Examination Consent,” which Mr. MacDonald signed May 7, 2020. It read: I do hereby voluntarily agree to take a polygraph (lie detector) examination in relation to an investigation of sexual assault, sexual interference.

I understand that the polygraph examination will be given to me by a member of the Royal Canadian Mounted Police. I further agree to attend for my polygraph examination well rested and not under the influence of alcohol or drugs. The Polygraph Test by Sgt. Buettner [ 10 ] Sgt. Buettner conducted the polygraph test at the Broadview detachment on June 13, 2020. He spent nearly five hours with Mr. MacDonald to administer the polygraph test, review the results, confront Mr. MacDonald with the results and extract his confession. [ 11 ] Sgt.

Buettner testified and explained to the court the standard training to become an R.C.M.P. polygrapher: 10 weeks training in Ottawa, Ontario, a two-week internship in the field and eight months of practical experience. The court learned that a large part of polygraph training involves memorizing a standard script, a task Sgt. Buettner had mastered before beginning his training. One can readily notice after reading the case law and comparing statements polygraphers have made to accused persons in previous cases to statements Sgt. Buettner made to Mr.

MacDonald that the techniques used by R.C.M.P. polygraphers are highly standardized and largely proforma. [ 12 ] Apparent both from Sgt. Buettner’s testimony and from the videoed statements, Sgt. Buettner is well-informed about both the technical and theoretical aspects of polygraphy. His conduct with Mr. MacDonald was professional and courteous throughout.

[ 13 ] Sgt. Buettner explained to the court that the test moves through different stages. In the pre-test stage, which usually lasts approximately 90 minutes, the officer provided Mr. MacDonald with all the standard rights, including his right to remain silent even though Mr. MacDonald had already given a previous statement to Cpl. Cote. Specifically, Mr. MacDonald signed a document entitled “Polygraph Examination Police Warning” which advised Mr. MacDonald that he may be charged with a criminal offence of sexual interference. Mr.

MacDonald signed the document, which read as follows: You must clearly understand that anything said to you previously by a person in authority, should not influence you nor make you feel compelled to say anything at this time. Whatever you may have felt influenced or compelled to say earlier, you are not now obliged to repeat, nor are you now obliged to say anything further. Whatever you do say may be given as evidence. [ 14 ] Mr. MacDonald was given his right to retain counsel and told that he had no obligation to take the polygraph and could leave any time he wished to leave.

He was told, and he acknowledged, that what he said could be used in evidence against him. Mr. MacDonald was presented with another document, which Sgt. Buettner asked him to read aloud before signing it on June 13, 2020. It read as follows: Polygraph Examination Consent I do hereby voluntarily agree to take a polygraph (lie detector) examination, to be given to me by a member of the Royal Canadian Mounted Police. I know that I can change my mind and stop the examination at any time. I also know that the door is unlocked and I am free to leave at any time.

I understand that the operation of the polygraph instrument involves the use of mechanical and electronic equipment for the recording of physiological responses. I do hereby consent both to the placing of the necessary components upon my person, and to the use of any electronic hearing, recording and/or viewing devices operated in conjunction with this examination. I understand that all of our conversations here today will in fact be video recorded. [ 15 ] As Sgt. Buettner testified, having a person read the document aloud provides the examiner an opportunity to assess the person’s literacy skills. Clearly, Mr.

MacDonald read the document without faltering. After Mr. MacDonald signed the document, Sgt. Buettner restated that even though Mr. MacDonald had signed the consent form, he did not have to go through with the test. [ 16 ] Sgt. Buettner then provided Mr. MacDonald with a laminated pamphlet with common questions and answers. Sgt. Buettner then stepped out of the room to allow Mr. MacDonald to digest the questions that might commonly be asked. Sgt. Buettner asked questions about Mr. MacDonald’s medical history and learned that Mr.

MacDonald has experienced symptoms of Asperger’s syndrome (commonly considered to be on the high functioning spectrum of autism). Sgt. Buettner testified that Asperger’s does not jeopardize the results of a polygraph test but requires certain adjustments. Sgt. Buettner accommodated adjustments by using a different technique to set a control, a type of autonomic base line. Sgt. Buettner used what he described as a “directed lie technique,” asking Mr. MacDonald to answered “No” to questions Mr. MacDonald knew were truthfully answered “Yes.” [ 17 ] Once the base line questions had been determined and asked, Sgt.

Buettner and Mr. MacDonald discussed the relevant questions that would be posed to Mr. MacDonald respecting the specific allegation of sexual relations with T.P. Mr. MacDonald understood and knew the questions that would be asked of him once the monitors were in place and that they would be re-asked but in a different sequence. [ 18 ] In the “in-test stage,” attachments were made to Mr. MacDonald, including a blood pressure cuff around his arm, pads on his left hand to monitor conductivity enhanced by sweat, and two bands around his chest. As usual, three charts were generated to allow Sgt.

Buettner to examine the results. [ 19 ] The questions that Mr. MacDonald and Sgt. Buettner agreed would be posed to Mr. MacDonald, but rearranged each time a new chart was generated, were as follows (pp. 142-13 of the transcript): Sgt. Buettner: Regarding [T.P.], do you intend to answer each of those questions truthfully? John MacDonald: Yes. Sgt. Buettner: Are you afraid I will ask you a question we did not review? John MacDonald: No. Sgt. Buettner: In your whole life have you ever said something that upset your mother? [A directed lie question] John MacDonald: No. Sgt.

Buettner: In the last three years did you stick your penis in [T.P.’s] vagina near the Kipling elevator? John MacDonald: No. Sgt. Buettner: In your whole life have you ever lied to your employer? {A directed lie question] John MacDonald: No.

Sgt. Buettner: In the last three years did you shove your penis in [T.P’s] vagina near the Kipling elevator? John MacDonald: No. Sgt. Buettner: Do you live in Canada? [A question that Mr. MacDonald knew he was to answer truthfully] John MacDonald: Yes Sgt. Buettner: In your whole life have you ever lost your tempter? [A directed lie question] John MacDonald: No. Sgt. Buettner: In the last three years did you insert your penis in [T.P.’s] vagina near the Kipling elevator? John MacDonald: No. [20] After Sgt. Buettner had posed the series of questions three times, he invited Mr.

MacDonald to leave the roomand go outside for fresh air. Both left the interview room. Sgt. Buettner examined the results and decided that the results wereinconclusive without two more charts being generated using the same questions. After the same questions were posed to Mr.MacDonald, but in different order, Sgt. Buettner left the interview room to examine the charts. [21] Sgt. Buettner returned to the interview room. Mr. MacDonald had earlier said he wanted to know the results.Sgt.

Buettner again reminded him that he was not under arrest, he was not being detained, he was free to leave at any time and he couldcall a lawyer if he wished. Sgt. Buettner concluded: [page 157] And the last thing is, is that because I am a person in authority, keep in mind that you don’t have to say anything to me, okay, butanything that…that we talk about here may uh…become evidence… [22] At this point, Sgt. Buettner told Mr. MacDonald that it was clear from the charts that he had placed his penis inT.P.’s vagina. Sgt. Buettner then began a lengthy monologue. Essentially, Sgt.

Buettner deflected onto other persons and circumstanceshow Mr. MacDonald found himself in the situation he was facing. Sgt. Buettner deflected “blame” onto the social worker who wasobliged to report the incident and to T.P., a girl he described as having “a lot of social and psychological issues.” Again from a review ofthe case law this technique appears to be standard procedure following a failed polygraph. [23] Mr. MacDonald then gave the details of his encounter with T.P., which included full sexual intercourse. In otherwords, he confessed.

Legal Principles [24] The basic principle is this: an accused’s out-of-court statement made to a person in authority is inadmissibleagainst the accused unless the prosecution proves beyond a reasonable doubt that the statement is voluntary. In this voir dire the taskbefore the court is to determine whether Mr. MacDonald’s confession was voluntary, not whether it was true. [25] Repeatedly, but particularly the Supreme Court of Canada in R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 [Oickle]has stated that no two cases are the same.

Accordingly, the contemporary, common law confessions rule requires a contextual analysis ofall the circumstances and conditions surrounding the confession. As the court wrote, “Hard and fast rules simply cannot account for thevariety of circumstances that vitiate the voluntariness of a confession…” [para. 47].

For that reason, the court directed a consideration offour inquiries to determine whether the will of the accused has been overborne by: 1) threats or promises; 2) oppression; 3) the presenceof an operating mind; and 4) the absence of police trickery. [26] In Oickle, the police were investigating eight fires. Mr. Oickle agreed to a polygraph examination. When Mr.Oickle was informed that he failed, one officer questioned him for an hour, followed by a second officer for 30 to 40 minutes. Mr.Oickle confessed to one arson.

He was then taken back to the police detachment where a third officer continued the interrogation forseveral hours, after which Mr. Oickle confessed to other fires. The trial judge ruled the statements as voluntary, a decision overruled bythe Nova Scotia Court of Appeal. The Supreme Court of Canada agreed with the trial judge that Mr. Oickle’s statements were voluntary.A brief search of one case-reporting site shows Canadian courts have cited Oickle 412 times since 2000.

It remains the go-to decisionrespecting the voluntariness of police-gathered confessions. [27] Ten years passed from Oickle to the Supreme Court’s decision in R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310[Sinclair]. There, Justice Binnie, although in dissent, offered a succinct review of the principles and circumstances in Oickle.

At para. 92,Justice Binnie described Oickle as setting “a substantial hurdle to making inadmissible a confession on the basis of involuntariness” andat para. 93 as “setting a high barrier to exclusion.” Justice Binnie summarized the Court’s approach in Oickle as follows: [93] …[T]he Court also emphasized “society’s need to investigate and solve crimes” (para. 33), and reference was made (twice) to thedictum of Lamer J. that “the investigation of crime and the detection of criminals is not a game to be governed by the Marques ofQueensbury rules”: Rothman v.

The Queen, (SCC), [1981] 1 S.C.R. 640, at p. 697. [28] Justice Binnie at para. 94 of Sinclair provided a

summary of Oickle, explaining that Mr. Oickle’s confessionwas voluntary, notwithstanding several circumstances that undoubtedly would have put considerable pressure upon Mr. Oickle andnotwithstanding some of the polygrapher’s statements that were less than completely truthful. Justice Binnie identified thesecircumstances and statements at para. 94 as: 1. The police had minimized the seriousness of the crimes (para. 77). 2. The police made offer of psychiatric help (though not as a quid pro quo for the confession) (para. 78).

3. The police suggested that it might be necessary to administer a polygraph test to Mr. Oickle’s fiancée to determine whethershe was involved in setting fires but, seemingly, not if Mr. Oickle himself were to confess (para. 84). 4. The police pretended that the results of a failed polygraph test were “infallible” (para. 95). 5. The police jumped into their persistent questioning of Mr.

Oickle immediately after informing him that he had “failed” thepolygraph test (para. 101). [29] Comparing these circumstances, police inducements, and less-than fully truthful statements in Oickle to Mr.MacDonald’s situation will be instrumental in my analysis. [30] Justice Binnie also recognized that the police questioning “was courteous and Mr.

Oickle was told on at leasttwo occasions before his confession that he was free to leave the interrogation…” (para. 95 of Sinclair) Justice Binnie wrapped up hisinterpretation of Oickle as follows: [95] …A lesson to be drawn from Oickle, in my view, is that while the legal principles are comprehensive and fair, in the absence ofegregious circumstances, the Crown will be able to establish “voluntariness” without great difficulty when that is the specific issuebefore the Court. [31] Although Oickle is undoubtedly the lead decision respecting voluntariness, particularly voluntariness of aconfession following a polygraph test, defence counsel rarely referenced Oickle.

Instead, defence counsel cited and relied upon R vAmyot (1990), (QC CA), 58 CCC (3d) 312 (QC CA) [Amyot]; R v Black (1996), (SK KB), 145Sask R 14 (Sask QB) [Black]; and R v Quaal, (SK KB), [1999] 3 WWR 174 (Sask QB) [Quaal]. These decisions areall distinguishable. [32] First, the three cases pre-date Oickle. Indeed, in Oickle the Supreme Court specifically addressed Amyot andaside from distinguishing it, intimated that it might have been wrongly decided.

Similar to defence counsel’s suggestion that Sgt.Buettner’s comment that, “if the truth is that you didn’t do this that’s exactly what the test is going to show” is oppressive or trickery, thecourt in Amyot found that the polygrapher’s statement that “the test showed him that he is not telling the truth” was inappropriate.Following is how Justice Iacobucci addressed the Quebec Court of Appeal’s analysis in Amyot: 96 The Quebec Court of Appeal concluded in R. v. Amyot (1990), (QC CA), 58 C.C.C. (3d) 312, at p. 324, thatrepresenting the polygraph as infallible rendered a confession involuntary.

In that case the polygrapher told the accused that[TRANSLATION] “the test showed him that he is not telling the truth”. This, the court found, was inappropriate in that it [TRANSLATION] pushed what the examination consisted of much too far, into the absolute. The result was presented to the appellantas a certitude which obviously was going to shake him up and it made him say “but what is going to happen now?”.

It seems to me that,as a result, the appellant was led into error on the infallibility of the test and this manner of proceeding could naturally induce a person to“confess”. … The Court of Appeal in Amyot put particular emphasis on the fact that the suspect confessed almost immediately after hearing thepolygraph results, suggesting that his will was overwhelmed upon being confronted with the damning, supposedly incontrovertibleevidence. 97 Without expressing an opinion as to whether Amyot was correctly decided, I note that the facts of the present appeal are verydifferent…. [Emphasis added] [33] Justice Iacobucci’s last statement has two take-away conclusions.

First, he had reservations about thecorrectness of Amyot and, accordingly, so should this court. More importantly, he again referred to the court’s need to analyze each casecontextually, based on its unique facts. Even though defence counsel for Mr. MacDonald cited certain excerpts from Sgt. Buettner’scomments during the interview and test, I find nothing in Sgt.

Buettner’s comments that moves the dial toward oppressiveness. [34] Justice Iacobucci in Oickle, explicitly allowed that police may misstate the accuracy of a polygraph test withoutconsequence to the voluntariness of a confession, dependent upon the entire circumstances. He wrote: 99 Granted that the police misled the respondent with regards to the accuracy of the polygraph, the question remains whether, in light ofthe entire circumstances of the interrogation, this rendered the confessions inadmissible. In my opinion it did not. As discussed above,there was no emotional disintegration in this case.

The mere fact that a suspect begins to cry when he or she finally confesses, as therespondent did, is not evidence of “complete emotional disintegration”; tears are to be expected when someone finally divulges that theycommitted a crime — particularly when the suspect is a generally law-abiding and upstanding citizen like the respondent. [35] Again, addressing the polygrapher’s exaggeration of the test’s accuracy, which was prominent in Amyot, JusticeIacobucci specifically stated that of its own accord exaggerating the tests’ accuracy and reliability does not render a confessioninadmissible.

He wrote: 100 Nor, as discussed above, do I believe that the police created an oppressive atmosphere. Simply confronting the suspect with adverseevidence, like a polygraph test, is not grounds for exclusion: see Fitton [R v Fitton, (SCC), [1956] SCR 958], supra. This holds true even for inadmissible evidence: see Alexis [R v Alexis (1994), (ON SC), 35 CR (4th) 117], supra. Nordoes the fact that the police exaggerate the evidence’s reliability or importance necessarily render a confession inadmissible.

Eyewitnessaccounts are by no means infallible; yet in Fitton, this Court ruled admissible a statement taken after the police told a suspect they did notbelieve his denials because several eyewitnesses had come forward against him. In short, merely confronting a suspect with adverseevidence — even exaggerating its accuracy and reliability — will not, standing alone, render a confession involuntary.

[ 36 ] In conclusion, although defence counsel relied upon Amyot, the Supreme Court distanced itself from the reasoning of the Quebec Court of Appeal. I find little judicial guidance from Amyot when the Supreme Court directed its attention to it, qualified it and intimated that it may have been incorrectly decided. [ 37 ] Nor are the decisions in Black and Quaal of assistance to the court. They both predate Oickle. Notably, in both cases, both Mr. Black and Mr. Quaal testified as to the conduct of the same officer who administered the polygraph test, Sgt. Wigglesworth.

In Black , Justice Wedge accepted that the accused was “confused, embarrassed and coerced to the point of oppressiveness.” Analysis [ 38 ] The entirety of Mr. MacDonald’s interaction with both Cpl. Cote and Sgt. Buettner was videoed and a transcript and DVD of both interviews were exhibited. These accurate depictions of Mr. MacDonald’s polygraph test and confession provide the court a front-row seat to the context and circumstances of his interaction with the R.C.M.P. [ 39 ] From the outset, Mr.

MacDonald was cooperative with the R.C.M.P. investigation, including his reaching out to contact the Broadview detachment after he learned the R.C.M.P. had been inquiring about his whereabouts. He showed little hesitation in agreeing to take the polygraph test. [ 40 ] In comparison to the circumstances faced by Mr. Oickle during his polygraph test and subsequent interrogation and confession, the circumstances of Mr.

MacDonald’s polygraph test and interrogation show far less of anything that might have been considered to be a threat or promise to induce a confession. [ 41 ] Nor was anything oppressive in the nature of Sgt. Buettner’s conduct or the conditions under which Mr. MacDonald was examined. In his own words, he acknowledged that he was free to discontinue the polygraph test at any time and leave the room.

He was advised throughout of his right to retain counsel, that he had no obligation to say anything, and that anything he said could be used in evidence against him. [ 42 ] I find nothing in the videoed statement that suggests that Mr. MacDonald lacked an operating mind. He showed a quick appreciation for the instructions he received from Sgt. Buettner, offering comments that show he fully understood what functions the attachments to his body served and how to answer the directed lie questions. Mr. MacDonald, of his own accord, stated that he was an intelligent person. I find no evidence to suggest that if Mr.

MacDonald experienced Asperger’s syndrome that his will was overborne during the interview, the test, or the confession. [ 43 ] Although Mr. MacDonald stated that he was nervous about taking the test and the consequences if he failed the test, he did not waiver from his willingness to take the test. At no time did he expressly or implicitly show any indication that he might choose to leave the room, even though he was fully aware of his right to do so. [ 44 ] The video made apparent that Sgt. Buettner and Mr. MacDonald were not antagonistic toward each other. Sgt. Buettner quickly gained Mr.

MacDonald’s confidence and trust. Sgt. Buettner was not dressed in police garb and carried no usual police trappings. He wore a suit and tie. Sgt. Buettner testified that he did not particularly favour the layout of the small examination room because it obliged him to sit nearer to the exit door than Mr. MacDonald. However, he frequently moved about the room, allowing easy exit if Mr. MacDonald decided to leave. I saw no evidence that Mr. MacDonald would reasonably have thought that he could not leave any time he chose. [ 45 ] Mr. MacDonald appeared on the video to be composed and comfortable.

He spoke clearly and often accurately reaffirmed, restated and, sometimes, predicted Sgt. Buettner’s statements. For example, after Sgt. Buettner explained to Mr. MacDonald that he could leave the room at any time, Mr. MacDonald spontaneously interjected “And if at any point I decide to leave, I can take off the instruments and walk out the door.” He was fully engaged and easily understood Sgt. Buettner’s instructions, even though those instructions were sometimes detailed and nuanced. I observed no instance when Mr. MacDonald was at cross understanding with Sgt.

Buettner about the scope, purpose or techniques involved in the polygraph. [ 46 ] I conclude that Mr. MacDonald’s confession was voluntary. J. D.H. LAYH