THE TRIAL IN CANADIAN COURTS – Part 2 LAW 12 MUNDY

TRIAL PROCEDURE Crown and defence lawyers make motions before a judge Motions are applications to a judge that ask the court to rule on a request One common motion is a stay of proceedings, where a request to suspend a trial based on justifiable reason is made Motions can be made at any time in trial

ARRAIGNMENT Arraignment = reading of the charge Once charge is read, accused enters a plea (i.e.- not guilty/guilty) If accused refuses to enter a plea, a plea of “not guilty” is recorded, and trial continues Court clerk is responsible for arraignment

CROWN’S EVIDENCE After arraignment, the Crown makes its opening statement, which summarizes its case against the accused Evidence (witnesses, exhibits) is then called by the Crown Exhibits require proof from Crown that they are related to the crime ◦ Ex. – if a bat is called as evidence, it must be shown that the bat a) came from the crime scene; and/or b) was used in crime

CROWN’S EVIDENCE Two general types of evidence: ◦ Direct evidence ◦ Circumstantial evidence Direct evidence is witness testimony based on what they experienced through senses – best type of evidence Circumstantial evidence is a fact that, if proven, helps infer (i.e.- assume) that a criminal act occurred Cannot convict accused purely on circumstantial evidence

CROWN’S EVIDENCE Examination-in-chief is the first questioning of a witness Crown interviews potential witnesses prior to trial, so knows info already Hence, examination-in-chief only can be done through general questions; no leading questions allowed Leading questions have info on crime in the question and lead to ‘yes’ or ‘no’ response from witness

CROWN’S EVIDENCE After each examination-in-chief of a witness, defence is allowed to cross-examine him/her Leading questions may be used Defence usually attempts to show judge/jury that witness is not credible, meaning witness may not have accurate recall of events or may be untruthful in their statements to court Also known as attempts to rebut (contradict) evidence

CROWN’S EVIDENCE After cross-examination, Crown has option of reexamining the witness Usually this is to reveal more information from witness that will clarify testimony given during cross-examination After reexamination, defence may request from judge to re-cross-examine witness

CROWN’S EVIDENCE Once Crown has presented all of its witnesses and exhibits, the Crown is said to “rest its case” In doing so, it cannot present any more evidence, unless judge agrees that doing so will help serve justice Resting its case allows defence to be able to then present its evidence that refutes all the evidence given by Crown

DEFENCE’S EVIDENCE Before defence begins calling evidence at this stage, it has the chance to make a motion of directed verdict If successful, judge orders jury to return a verdict of “not guilty” Such a motion is made only if defence believes that, upon Crown resting its case, there is not enough proof of actus reus and mens rea

DEFENCE’S EVIDENCE First, defence summarizes what it expects to prove in presenting its evidence, similar to opening statements Evidence procedures from examination- in-chief to cross-examination remain same as when Crown presented evidence Once Crown rebuts evidence, defence has a chance to present surrebutal (meant to contradict rebuttal evidence)

WITNESSES A list of witnesses must be supplied to the defence by the Crown prior to a trial Witnesses appear voluntarily or by subpoena Witnesses who fail to appear can be given jail terms and fines through contempt of court charges

WITNESSES Witnesses are called to the stand and must take either: Oath = swear to tell the truth with one hand on the Bible Affirmation = solemn/formal declaration that witness will tell truth If witness gives false evidence knowingly with intent to mislead court, witness is charged with perjury (max. 14yrs jail)

WITNESSES Witnesses must be able to comprehend the oath/affirmation and the questions asked Witnesses who cannot (ex.- young children, those mentally unfit, etc.) may have their evidence declared inadmissible Children are sometimes asked to give unsworn testimony if they understand the need to tell the truth

WITNESSES Adverse witnesses (those who have a hostile attitude against side examining them) can be called as witnesses Side calling witness cannot present evidence of witness’s bad character Usually called to contradict witness and prove that witness’ statements are inconsistent with any previously testimony (of same witness)

WITNESSES Accused does not have to take the witness stand Defence typically does not call accused to stand, as accused might present him/herself in a manner that might bias judge or jury against him/her, despite testimony given