The Criminal Process Cases & Examples

Duty to Disclose David Milgaard Gail Miller

Duty to Disclose: David Milgaard Information about other sexual assaults in the area at the time of Gail Miller’s murder were withheld from defence Sexual assaults continued after David Milgaard’s conviction 23 years in jail, wrongfully convicted

Duty to Disclose: Defence Counsel Defence counsel also has duty to disclose Solicitor-client privilege: privacy of information Rationale: to allow full and frank communication thereby promoting access to justice - an acknowledgement that advice must be sought from legal professional Constitutional right, protected in Charter of Rights & Freedoms

Duty to Disclose: Paul Bernardo & Karla Homolka

Karla Homolka Seeks full immunity from Crown attorneys in exchange for her full cooperation in the investigation and trial of Paul Bernardo Full immunity: assurance that a person will not be prosecuted in the future for crimes that the information-giver is known to already have committed, but for which no charges have been laid Agrees to plead guilty to manslaughter; claims battered-wife-syndrome Later dubbed “the deal with the devil” Sentenced to 12 years in prison

Paul Bernardo & Ken Murray Ken Murray retrieves tapes from Bernardo & Homolka’s house depicting crimes Murray held tapes for 16/17 months Intends to use them in Bernardo’s defence: tapes don’t depict murder, demonstrate Homolka’s involvement in crimes Murray requests notes from Crown but is delayed 6 months; no idea about Homolka plea deal Police seize some tapes of Homolka’s involvement; Murray doesn’t see need to disclose tapes as he believes police and Crown know about tapes’ contents

Paul Bernardo & Ken Murray Bernardo changes story: no contact with victims Leslie Mahaffy and Kristen French, and asks Murray to suppress video tapes Murray quits representing Bernardo New attorney gives tapes to police Bernardo is convicted on all 9 charges against him, including 2 counts of 1st degree murder; sentenced to life with no possibility of parole for 25 years; labeled dangerous offender Murray charged with obstructing justice Actus reus found, but no mens rea = not guilty

**************************** R. v Murray Murray charged with attempt to obstruct justice ISSUES: What was Murray’s purpose in concealing the tapes? (to obstruct justice or advance Bernardo’s defence) Was it unethical to handle physical evidence without confronting the police? **************************** Dilemma was that he was protecting solicitor-client privilege by not disclosing that he had the tapes which would harm his client, but the tapes also would help the prosecution Actus reus found, but no mens rea = not guilty Criminal act must be willful

R. v Murray Found not guilty Actus reus but no mens rea (did not wilfully obstruct justice) CASE RELEVANCE: Further definition and instruction needed for lawyers in this situation

R. v Murray CASE RELEVANCE: videotapes are NOT communication between client and solicitor, and as such, don’t constitute privilege thus, while Murray’s discussions with Bernardo about the tapes are covered by privilege, the physical objects, the tapes, are not maintaining confidentiality in the scheme of client-solicitor privilege is not permissible because evidence may have had some exculpatory value; still must turn over any incriminating physical evidence to the prosecutor if it improperly comes into your possession as lawyer instead, they are evidence of crime because they pre-existed the client-solicitor relationship hiding them from police on behalf of his client cannot be said to be part of client-solicitor communication however, there is no positive obligation to assist the Crown