Criminal Trial Procedures Stages in a trial Forms and Types of Evidence Rules of Evidence

Figure 7.10 Trial by Jury, p. 183

Presentation of Evidence Crown evidence Section 11(d) … ”presumed innocent until proven guilty” Crown must counter or disprove this presumption of innocence Crown opening statements (summarize the Case) Call evidence (witness testimony and exhibits)

Forms of Evidence circumstantial evidence direct evidence physical evidence demonstrative evidence

Circumstantial Evidence: A form of evidence that allows a judge or jury to infer or accept a fact based on a set of known circumstances. A fact that can be used to infer another fact. Example: The cookie monster is found standing by an open cookie jar with cookie crumbs on his face. The circumstantial evidence would indicate that the cookie monster ate a cookie. However, he was not actually seen eating the cookie.

Direct Evidence: An eyewitness has seen or heard the alleged events, or some real evidence is provided which proves a fact in question. (The fact in question must prove the guilt of the accused.) COOKIES Example: Someone sees cookie monster eat a cookie out of the cookie jar.

Physical Evidence (physical): evidence that consists of physical objects that can be offered into evidence. Example: The cookie jar with the cookie monster’s fingerprints on it. Other typical examples… weapons, tools, tool markings, fingerprints, blood, hair, skin samples

Demonstrative evidence: Evidence that is prepared by an attorney in an effort to assist the trier of fact in visualizing or comprehending other evidence. Example: A map of the kitchen showing the cookie monster’s proximity and access to the cookie jar. Other typical examples… charts, maps, photographs, crime sketches

Types of Evidence Privileged Communications Similar Fact Evidence Not required as evidence in a court Spouse, doctor, clergy… Similar Fact Evidence Shows the accused has committed similar offences in the past 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 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 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! Photographs Must be a accurate portrait of the crime scene

Types of Evidence continued 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 Polygraph Inadmissible in court (1978 Supreme Court ruling) 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

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 During a trial, the Crown or the defence may object to questions asked or the answers provided by witnesses. When an objection is made the judge rules on whether the evidence in question is admissible or accepted by the court. Common grounds for objection include:

Rules of Evidence Leading questions – A question that suggests to a witness a particular answer. Such a question is not allowed during direct examination. Hearsay statements – Evidence given by a witness based on info received from someone else rather than personal knowledge. Opinion statements – A witness cannot be asked their opinion on something unless they have been qualified as an expert witness. Immaterial/Irrelevant questions – A question that has no bearing on the case.

Questioning a Witness Examination-in-chief: 1st questioning of a witness. (Can’t ask leading questions – yes / no answers) i.e. You were at Duffy's bar on the night of July 15, weren't you? Non- Leading – i.e. Where were you on the night of July 15? Defense cross-examines witness. May ask leading questions Witness credibility is what counts! Crown may re-examine the witness

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

Defence: evidence May call for a directed verdict Crown has not proven actus reus and mens rea Must establish reasonable doubt

Appeals The ability to appeal is an important safeguard in our system. Notice of an appeal must be filed quickly, usually within 30 days. An appeals court hearing the case can affirm the lower court’s decision, reverse it or order a new trial. Both the defence and the Crown can appeal a case it considers improper. They can appeal the decision or the sentence. The side that files the appeal is called the appellant, the responding side is called the respondent. The appeal is usually heard by a panel of 3 to 5 judges, who only have to reach a majority decision. A written opinion of both the majority and dissenting sides can be issued.

Recap -How the case is presented Opening Statements The crown presents their case first, allowing for the Defence to cross-examine any witnesses. After, the Defence can call for a motion to dismiss the case, also known as a direct verdict, decided by the judge. Then the Defence presents and the Crown may cross-examine Closing Statements (now the crown goes last) Judge’s Charge: judge reviews evidence, explains applicable laws Verdict: acquittal or conviction Sentencing: the punishment is given if the accused is convicted Motion to dismiss if the crown hasn’t proved their case beyond a reasonable doubt