The Criminal Trial Process Section 11 (d) of the Charter of Rights and Freedoms states that each person charged with an offence is to be ‘presumed innocent until proven guilty according to the law.’ Burden of Proof: the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt – this is a fundamental legal principle founded in Common Law. Step 1: Arraignment the accused is brought before the judge and jury panel to enter a plea Step 2: Address to the Jury At this point the judge addresses the jury, to inform the jury of their responsibilities Step 3: Crown’s Opening Statement identifies the offence committed summarizes the evidence against the accused; and, outlines the way the Crown will present the case. Step 4: Crown Direct Examination (2-4 persons) the first questioning of a witness to determine what he/ she observed about the crime Crown may re-examine the witness, but only on questions which were raised by the cross-examination Step 5: Defense Cross-Examination (2-4 persons) the second questioning of a witness to test the accuracy of the testimony Defense may re-cross-examine with judge’s permission

Criminal Trial Procedure (cont’d) Step 6: Defense Opening Statement Summarizes what it hopes to show – that there exists a reasonable doubt as to guilt Step 7: Defense Direct Examination Step 8: Crown Cross-Examination The procedure of direct examination and cross-examination is repeated The defendant may choose to testify on his or her own behalf but ‘cannot be compelled to be a witness’ according to s. 11 (c) of the Charter Crown may make a rebuttal Defense may make a surrebuttal Step 9: Defense Summation Will try to show that the Crown has failed to establish mens rea or actus reus, thereby demonstrating that a reasonable doubt exists. Step 10: Crown Summation Attempts to show that defendant’s guilt has been proven beyond a reasonable doubt Step 11: Charge to the Jury Judge’s explanation to the jurors of how the law applies to the case before them Step 12: Delivery of Verdict Read in open court Jurors can be polled by either Crown or Defense counsels Must be unanimous – if not, it is a ‘hung jury’

The Rules of Evidence An objection is made by standing and stating “Objection, your Honour. The question is not relevant/is leading/calls for hearsay/calls for an opinion.” Objections fall within two categories. Counsel can object to the question that is asked or to how it is being asked or answered. The following may lead to specific objections: Leading Questions Examining counsel must allow their witnesses to tell their own story. A leading question suggests to the witness a particular answer. Hearsay Statements Witnesses can only testify to what they know from personal knowledge, not about something he or she heard from a third party. Opinion Statements Only after a witness has been qualified and accepted by the court as an expert can she or he be asked for an opinion. Immaterial or Irrelevant Questions To be admissible, evidence must be relevant, reliable, and fair. Irrelevant information is not related to an issue in dispute. Non-Responsive Answers The witness’s response does not address the question asked.

Types of Evidence Evidence is considered relevant if it is has probative vale, that it, if it tends to make more or less probable a certain fact pertaining to the guilt or innocence of the accused. Direct evidence is the testimony given by a direct witness to prove an alleged fact. A common kind of evidence, but not the most reliable Ex. Memories can change/fade over time Circumstantial evidence is indirect evidence that leads to a reasonable inference of the defendant’s guilt. Evidence must be proven as it is presented. Ex. It must be proven that a glove found at a crime scene is the same one entered as an exhibit. If counsel is claiming that a certain person owned the glove, it must also prove that fact. Character Evidence establishes the likelihood that the defendant is the type of person who either would or would not commit a certain offence. The Crown cannot use a series of questions to indicate that the accused has a criminal character or nature. The jury must decide the question of guilt from the facts of the case, not from prior history. The defense, however, is allowed to introduce character evidence to support the accused’s credibility. If the defense introduces evidence of good character, the Crown is then free to introduce evidence of bad character, including previous convictions. Questioning must not attack the credibility of the accused, unless such cross- examination is relevant to the fact that the accused is lying when presenting his or her evidence.

CROWN PROSECUTOR’S CHECKLIST Have you identified the applicable law? Have you identified what the Crown will try to prove, that is, when and where the crime was committed by the accused, and the presence of both actus reus and mens rea? Have you prepared an opening statement that summarizes the case from your viewpoint and shows what you are going to prove the accused’s guilt beyond a reasonable doubt? Have you identified the evidence you are going to present to prove your case? Have you determined how this evidence will be introduced? Have you identified the evidence the defence will introduce? Have you considered how you will counter the defence’s evidence? Have you prepared your witnesses for direct examination? Have you prepared your witnesses for cross-examination? Have you prepared your strategy for cross-examining the defence’s witnesses? Have you phrased your questions properly and ordered them logically in order to avoid objections?

DEFENCE COUNSEL’S CHECKLIST Have you identified the applicable law? Have you identified what the Crown will try to prove, that is, when and where the crime was committed by the accused, and the presence of both actus reus and mens rea? Have you identified the evidence that the Crown will introduce? Have you considered how you will counter the Crown’s evidence? Have you identified the evidence that you will introduce to raise doubts about elements of the Crown’s case? Have you determined how you will introduce this evidence? Have you prepared an opening statement that summarizes the case from your viewpoint, and tries to establish that the Crown does not have a good case? Have you prepared your strategy for cross-examining the Crown witnesses? Have you prepared your witnesses for direct examination? Have you prepared your witnesses for cross-examination? Have you phrased your questions properly and ordered them logically in order to avoid objections?