Post on 13-Dec-2015
transcript
Chapter 8
Trial Procedures
The Players
Judge “the Bench” or “the
Court” Appointed by
government Full control of courtroom Decides question of guilt
and sets sentence
The Players continued
Crown prosecutor Hired by the government
to ensure that justice is done
Burden of Proof Must present all
evidence
Defence Counsel Represents the accused
to ensure that their legal rights are protected
The Players continued Court Clerk
Reads out the charge Swears in witnesses Tags evidence and handles mush
of the paperwork
Court Recorder Records everything exactly
The Sheriff Administration and pre-trial
preparation Make sure the accused appears in
court Finds jurors Serves summonses and carries
out court orders
Motions at the Beginning of a Trial
Crown and Defence may present motions to the judge Stay of
Proceedings (motion to stop the trial)
Juries and Jury Selection Let the public see conflict
resolved by peers
Reflect the conscience of the community
Expensive
Used in most serious indictable offences
Accused my choose a jury in a less serious indictable offense
Juries: Pros / Cons
Advantages - Juries
Educates the public Fresh perspectives rather
than that of the judge alone Decision must be
unanimous Decision based on values
and empathy rather than strict legal precedent
Advantage – Judge Alone
Less prejudiced Trained to make decisions
based on fact not lawyer’s eloquence
Judge provides reason for their decision
Jury Selection Empanelling – process of selecting 12 jurors
The Challenges:1. Challenge of jury list
Either side –if list is fraudulent2. Challenge for Cause
Prospective jurors do not meet the requirements governing juries
3. Peremptory Challenges Allows both sides to eliminate a prospective juror without giving
a reason Number predetermined by the charge (example: high treason
on Murder 1, 20 challenges
Jury Duty Sworn in and take their seat in the jury box
Informed of their duties by judge
must not: Discuss the case with non-jury members Follow media reports about the case Disclose any information from jury discussions
Usually you can go home at the end of each day unless sequestered – housed until they reach a verdict
Jurors may be discharged for valid reasons. If jury falls below 10 – new trial
Presentation of Evidence
Arraignment (reading of the charges) Accused enters a plea
Crown evidence Section 11(d) … ”presumed innocent until proven guilty” Crown must counter or disprove this presumption of
innocence
1. Crown opening statements (summarize the Case)
2. Call evidence (witness testimony and exhibits)
The Crown: types of evidence Direct evidence: eye witness testimony. Can be unreliable
Circumstantial evidence: indicates a high probability of the accused guilt. Usually not enough to a conviction (R.v.Truscott (1967)
Examination-in-chief: 1st questioning of a witness. (Can’t ask leading questions – yes / no answers) Defense cross-examines witness. May
ask leading questions Witness credibility is what counts! Crown may re-examine the witness
Defence: evidence
May call for a directed verdict Crown has not proven
actus reus and mens rea
Must establish reasonable doubt
Witnesses List of Crown witnesses must
be given to the defence prior to the trial
Witnesses usually appear voluntarily
May be served a subpoena Refusal to appear – arrest
warrant and detained for 30 days
If justified (Judge’s decision) may be detained 90 days, found guilty of contempt of court
Witness continued Must swear an oath
On bible Affirmation (to tell the truth)
Perjury - knowingly giving false testimony with the intent to mislead Max sentence 14 yrs
Adverse witness Hostile to a particular position – may
be called by both Crown and defence Side that calls an adverse witness
cannot bring forward evidence of the witness’s bad character
Can contradict by offering other evidence
Rules of Evidence Mostly contained in common law. Some provisions found in
statute law
Canada Evidence Act Admissibility of evidence is questioned during trial, judge orders
a voir dire (trial within a trial to determine if the evidence can be shown to the jury)
Self-Incrimination CCRF, Section 13 – protects witnesses Behaviours or evidence that indicates one’s guilt (any other
proceedings. Exception, purjury) Designed to encourage witnesses to answer all questions Canada Evidence Act - witness can object to any question on
the grounds of self-incrimination
Types of Evidence
1. Privileged Communications Not required as evidence in a court
Spouse, doctor, clergy…
2. Similar Fact Evidence Shows the accused has committed similar offences in the past
3. Hearsay Evidence Something that someone other than the witness has said or
written Usually not admitted in court Admissible: quoting a dying person if that evidence would have
been admitted if the person had lived or proof a statement was made
Types of Evidence continued
4. Opinion Evidence What an expert witness thinks about certain facts of a case Must be on topic that is outside the “experience and knowledge
of a judge or jury”, and relevant to the case
5. Character Evidence To show negative characteristics and previous convictions Crown: Limited in its use – jury must decide on facts of case
not character of the witness or their history Defence: introduced to support accused credibility. Once
witness is introduced, the Crown is then permitted to question!
6. Photographs Must be a accurate portrait of the crime scene
Types of Evidence continued7. Electronic devices and video surveillance
Admitted in court only if Criminal Code procedures have been strictly followed
Warrants , not private conversations…. Last resort Without authorization – to prevent an unlawful act that could cause
physical harm Video surveillance (public spaces) – admitted in court
8. Polygraph Inadmissible in court (1978 Supreme Court ruling)
9. Confessions (inculpatory / exculpatory) Accused acknowledges the charge Accused must be advised of the right to legal counsel before
making a statement – otherwise confession is inadmissible