Chapter 8

Court Room Organization See figure 8-2 Judge Have full control of the courtroom/maintains order (ex. Cameras) Decisions made on evidence and questioning can form basis for appeals Crown Prosecutor Responsible to see justice for society ”Burden of Proof” is on the Crown Crown must present all available evidence, even if it weakens their case Judge can direct the prosecutor to call witness even if it damages their case Have great influence, and can decided whether or not to lay charges

Defence Counsel Court Clerk Accused can represent self in lower courts Defence lawyers must represent their clients to the best of their ability, even if it offensive to them or the public Create a strategy to best suit their client Court Clerk Reads out the charges against the accused Tags evidence Swears in witnesses paperwork

Court Recorder Sheriff Stay of proceedings Records word for word all evidence given, all questions, and comments during the trial Sheriff Make sure the accused appears in court Find prospective jurors Serves summonses Assist the judge as needed (seize and sell off property) Stay of proceedings Can stop the trial until further action is taken

Juries and Jury Selection Accused can choose trial by Judge or Judge and jury Advantages of Trial by Jury Can reject oppressive laws Can base its decision on social values Defence needs to only convince 1 juror to have reasonable doubt Dramatic arguments is more likely to move a jury than a judge Jurors may feel empathy or sympathize with the accused

Advantages of Trial by Judge May be less prejudiced than a jury (depending on how the accused is dressed or the offence they are charged with) Legal technicalities may confuse jurors, but a judge is more likely to understand it A judge will follow legal evidence and precedent compared to a jury being swayed by dramatic rhetoric from the prosecutor A judge will present reasons for his/her verdict, while a jury will not. These reasons may help either side with an appeal

Empanelling Process of selecting jurors (12 for criminal) Creates a list of 75-100 names that are summoned to appear in court The judge may exempt anyone with a personal interest in the case, a relationship with a trial participate, or a personal hardship. The judge decides what questions jurors can be asked Must be Canadian citizen, between 18 and 69 years old, and speak English or French to serve on a jury

People exempted from Jury Duty MPs, Senators, politicians Judges, Justices, lawyers, law students Law enforcement officers People visually impaired People with mental or physical disability that impairs their ability to complete jury duty Anyone convicted of an indictable offence that hasn’t been pardoned Served on a jury within the last 2-3 years

Jury Challenges Challenge of Jury List Challenge for Cause Challenge to the entire jury list Must show there was fraudulent or willful misconduct in selecting prospective jurors (ex. All jurors from an ethic group are excluded) Challenge for Cause Jurors do not meet the requirements Ex. Formed an opinion on the case, can’t understand English or French Peremptory Challenge Allows both the Crown and defence to eliminate prospective jurors without giving a reason Number of challenges depend on charge (ex. 1st degree murder get 20)

Jury Duty Jurors can’t Sequester Discuss with anyone other than other jurors Read or follow media about the case Disclose any information that is not presented in open court Sequester Jury is isolated until they reach a verdict

Presentation of Evidence Arraignment Reading of the charge to the accused and the accused enters a plea of guilty or not guilty Steps in Presenting Evidence 1 Crown starts with examination-in-chief 2 Defence may cross-examine witness 3 Crown may reexamine witness 4 Defence may recross-examine with judge’s permission 5 Defence presents evidence 6 Crown may cross-examine witness 7 Defence may reexamine witness 8 Crown may make rebuttal 9 Defence may make surrebuttal

Crown Evidence Direct Evidence Circumstantial Evidence Obtained through testimony of witnesses who actually saw the offence being committed Circumstantial Evidence Indirect evidence; evidence that makes it highly likely the accused committed the crime Prosecutor can’t ask leading questions to witnesses

Defence Evidence Directed Verdict The Crown doesn’t prove elements of an offence; judge instructs the jury to indicate a verdict of “not guilty” Defence simply needs to show reasonable doubt Defence can’t ask leading questions to witness

Witnesses Subpoena Contempt of Court Oath/Affirmation Perjury Orders them to appear in court and testify Contempt of Court Any person who fails to give evidence is in contempt of court and can be fined or imprisoned Oath/Affirmation A pledge to tell the truth Oath (on a bible), affirmation (formal declaration) Perjury Knowingly gives false evidence with the intent to mislead

Adverse Witness Accused Self-Incrimination Voir Dire Is hostile to a certain position May be called by either the Crown or defence With Judge’s permission, the side that called the witness can ask leading questions Accused Doesn’t need to take the witness stand Self-Incrimination Evidence a witness gives in court can’t be used later to incriminate the witness in other proceedings Voir Dire Determines what evidence will allowed during the trial

Types of Evidence Privileged Communication Similar Fact Evidence Certain individuals are NOT required to be present evidence in court Ex. Spouse, Lawyer, Psychologist, etc. Few exceptions occur – crimes against minors 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 Not admissible in court, exceptions beings: quoting someone who is dying and is now unable to testify

Opinion Evidence Character Evidence Photographs Electronic equipment What an expert witness thinks about certain facts in the case Can be paid for their testimony Character Evidence Evidence that shows if the accused has good or bad character The Crown in limited in its use, unless introduced by the defence, then the crown can any evidence including past convictions Photographs Can be used as evidence, but can’t be used to inflame the jury Electronic equipment Must follow proper procedures, otherwise evidence will not be allowed

Polygraph Evidence Confessions Not permissible in court Regarded as hearsay evidence Confessions Any statement taken from the accused prior to being told his/her charter of rights can be excluded as evidence Inculpatory Admission Exculpatory Denial

Defences Alibi – puts the accused somewhere else at the time the offence occurred Self-Defence Can defend yourself, those under your protection, your moveable property, your dwelling by only using “necessary” and “reasonable” force “can use as much force as necessary to prevent any person from forcibly breaking or entering your dwelling/house” Legal Duty Allows certain to commit acts that would otherwise be offences Ex. Police officers can drive above the speed limit Ex. Teacher can use reasonable force to correct a child

Excusable Conduct Mental Disorder Duress – threat or use of violence Honest Mistake – accused had no idea they committed an offence Mental Disorder Mental disorder Can be remanded up to 60 days to evaluate their fitness If unable to stand trial, the court can order treatment Mental fitness at the time of the offence If the accused is deemed not mentally fit at the time of the trial he/she will be found not criminally responsible for the crime If accused is found not mentally fit they will be receive a discharge if they are not a treat to the public

Intoxication Automatism Consent Entrapment A person can only be found guilty of general intent (ex. Manslaughter) Automatism ”unconscious, involuntary behaviour” – not conscious of what they are doing Would be found not guilty on account of mental disorder and subject to procedures under the mental disorder Consent The injured party can and did consent to the action (ex. Athletes) Entrapment Police action that encourages or aids a person to commit an offence

Mistake of Fact Double Jeopardy Ignorance of the facts are not accepted, except: Mistake was genuine and not a result of negligence Law accepts ignorance Ex. Receiving counterfeit money while shopping Double Jeopardy you can’t be tried for the same offence twice

Reaching a Verdict Summation Charge to the Jury Jury Deliberation Summary of key facts Crown usually goes first No new evidence allowed Charge to the Jury Judge instructs what charges the jury are to review and deliberate on Jury Deliberation One jury member is selected as the foreperson Will be sequestered while they deliberate on their decision If they can’t reach a unanimous decision, it is called a “hung jury”; Accused will be tried again by a new jury