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