Criminal Trial Process “Innocent until proven guilty”

Burden of Proof – Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt. I Trial begins with the judge explaining the jury’s role and asks the 12 members to select a foreperson (says verdict) to communicate with the judge.

II Crown presents opening statement: Identifies offence committed Summarizes evidence Outlines how the Crown will present it’s case.

III Crown calls witnesses Direct examination – first questioning of a witness to determine what he/she observed about the crime. Cross-examination – second questioning of a witness by the defence to test the accuracy of the testimony. Four Purposes of Cross-examination: 1)     To elicit new information not given 2)     To obtain a different interpretation of the facts 3)     To challenge the powers of observation and recall of the witness 4)     To test the reliability and credibility of the witness

IV After the Crown calls all witnesses the Defence may bring a “motion for dismissal”   Judge has two options: 1)    Directed verdict – withdraw case and enter a verdict of not guilty. 2)    Not dismiss the case and trial proceeds (if pleading not guilty still)

V Defence makes opening statement: May call witnesses to refute prior testimonies or show reasonable doubt Direct examination and cross-examination occur (reverse)   VI After all evidence from defence is presented the Crown can “rebut” – contradict evidence introduced by the opposing side. Defence counsel can then present a “surrebuttal” – reply to the Crown’s rebuttal.

Rules of Evidence #1) Cannot ask a “leading question”. ie: “You are hard of hearing, aren’t you?” “Wasn’t it Joe you saw with the knife?” #2) Hearsay evidence is not admissible.   #3) Opinion Evidence is not admissible unless given by experts qualified in a particular area.

Rules of Evidence #4) Immaterial or Irrelevant Questions are not admissible – no connection with the matter at hand. All evidence must relate to the case. #5) Non-responsive Answers – if a witness does not answer the question posed, the judge can direct the witness to answer the question properly.

Types of Evidence A) Direct Evidence – testimony given by a witness to prove an alleged fact based on what he/she saw, heard, tasted, touched… B) Circumstantial Evidence – indirect evidence that leads to a reasonable inference of the defendant’s guilt.

Types of Evidence C) Character Evidence – evidence used to establish the likelihood that the defendant is the type of person who either would or would not commit a certain offence. The Crown can not attack a person’s character. The defence can try to prove it is not in the defendant’s character to commit the crime and establish good character. However, the Crown can rebut this.

Types of Evidence C)    Electronic Surveillance – use of an electronic device to overhear or record communications between two or more people. ie: wiretapping(telephone) and bugging(records voice) D)    Polygraph Tests – “lie detector” tests. Measures changes in pulse, respiration and blood pressure. Not entirely accurate though (varies with the skill of the examiner) Not used as evidence to prove that a person is lying or telling the truth about a particular crime.

Voir Dire – mini-trial or “trial within a trial” Voir Dire – mini-trial or “trial within a trial”. This is a hearing during a trial and in the absence of the jury. The jurors are escorted from the courtroom and the judge, Crown and Defence discuss the admissibility of evidence.   VII Summary of the Case – after all testimony has been given, each counsel presents a summary of the case in the form of closing arguments.

VIII Charge to the Jury – Judge’s explanation to the jurors of how the law applies to the case before them. The Sheriff escorts jurors to the jury room to deliberate on their verdict.   VIV The Verdict – must be unanimous Hung Jury – a jury that can’t reach an unanimous decision and is dismissed from the case. A new jury is selected to try the case again.

Appeals ü must be filed within 30 days ü     heard in the correct appeals court ü     3 choices: a) affirm the lower court’s decision b) reverse the lower court’s decision c) order a new trial

Appeals  either the Defence or the Crown can appeal in criminal cases (can appeal sentence too) appeals are generally heard by a panel of 3-5 judges using the original transcripts, exhibits and legal documents of the case (majority decision)

Plea Bargaining – the majority of people charged with criminal offences never go to trial. Instead, the Crown and Defence negotiate a “plea bargain”. This is a negotiated deal whereby the accused pleads guilty in exchange for a lighter sentence.   ie: first degree murder = life sentence with no parole for 25 years. Plead guilty to second degree murder (possible parole after 10 years)

Famous Plea Bargain Case: Karla Homolka May 1993, in exchange for her sworn statements against her estranged husband, Paul Bernardo, Karla was charged with two counts of manslaughter in relation to the homicides of Leslie Mahaffy and Kristen French. She received two 12-year sentences to be served concurrently.