Chapter 8 Trial Procedures

The Players Judge Appointed by government Full control of courtroom Decides question of guilt (when there is no jury) and sets sentence

The Players continued Crown prosecutor Hired by the government to ensure that justice is done Burden of Proof – must prove guilt beyond a reasonable doubt 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 much of the paperwork Court Recorder Records everything exactly as stated 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)

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. i.e.: The accused fingerprint is found at the crime scene Examination-in-chief: 1 st 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

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 continued 7. 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