Chapter 8 Trial Procedures

The Players Judge “the Bench” or “the Court” Appointed by government Full control of courtroom Decides question of guilt and sets sentence

The Players continued Crown prosecutor Hired by the government to ensure that justice is done Burden of Proof 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 mush of the paperwork Court Recorder Records everything exactly 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)

Juries and Jury Selection Let the public see conflict resolved by peers Reflect the conscience of the community Expensive Used in most serious indictable offences Accused my choose a jury in a less serious indictable offense

Juries: Pros / Cons Advantages - Juries Educates the public Fresh perspectives rather than that of the judge alone Decision must be unanimous Decision based on values and empathy rather than strict legal precedent Advantage – Judge Alone Less prejudiced Trained to make decisions based on fact not lawyer’s eloquence Judge provides reason for their decision

Jury Selection Empanelling – process of selecting 12 jurors The Challenges: 1. Challenge of jury list Either side –if list is fraudulent 2. Challenge for Cause Prospective jurors do not meet the requirements governing juries 3. Peremptory Challenges Allows both sides to eliminate a prospective juror without giving a reason Number predetermined by the charge (example: high treason on Murder 1, 20 challenges

Jury Duty Sworn in and take their seat in the jury box Informed of their duties by judge must not: Discuss the case with non-jury members Follow media reports about the case Disclose any information from jury discussions Usually you can go home at the end of each day unless sequestered – housed until they reach a verdict Jurors may be discharged for valid reasons. If jury falls below 10 – new 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 (R.v.Truscott (1967) Examination-in-chief: 1 st questioning of a witness. (Can’t ask leading questions – yes / no answers) 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