1. The Criminal Process
Cases & Examples

2. Duty to Disclose
David Milgaard
Gail Miller

3. Duty to Disclose: David Milgaard
Information about other sexual assaults in the area at the time of Gail Miller’s murder were withheld from defence
Sexual assaults continued after David Milgaard’s conviction
23 years in jail, wrongfully convicted

4. Duty to Disclose: Defence Counsel
Defence counsel also has duty to disclose
Solicitor-client privilege: privacy of information
Rationale: to allow full and frank communication thereby promoting access to justice
- an acknowledgement that advice must be sought from legal professional
Constitutional right, protected in Charter of Rights & Freedoms

5. Duty to Disclose: Paul Bernardo & Karla Homolka

6. Karla Homolka
Seeks full immunity from Crown attorneys in exchange for her full cooperation in the investigation and trial of Paul Bernardo
Full immunity: assurance that a person will not be prosecuted in the future for crimes that the information-giver is known to already have committed, but for which no charges have been laid
Agrees to plead guilty to manslaughter; claims battered-wife-syndrome
Later dubbed “the deal with the devil”
Sentenced to 12 years in prison

7. Paul Bernardo & Ken Murray
Ken Murray retrieves tapes from Bernardo & Homolka’s house depicting crimes
Murray held tapes for 16/17 months
Intends to use them in Bernardo’s defence: tapes don’t depict murder, demonstrate Homolka’s involvement in crimes
Murray requests notes from Crown but is delayed 6 months; no idea about Homolka plea deal
Police seize some tapes of Homolka’s involvement; Murray doesn’t see need to disclose tapes as he believes police and Crown know about tapes’ contents

8. Paul Bernardo & Ken Murray
Bernardo changes story: no contact with victims Leslie Mahaffy and Kristen French, and asks Murray to suppress video tapes
Murray quits representing Bernardo
New attorney gives tapes to police
Bernardo is convicted on all 9 charges against him, including 2 counts of 1st degree murder; sentenced to life with no possibility of parole for 25 years; labeled dangerous offender
Murray charged with obstructing justice
Actus reus found, but no mens rea = not guilty

9. ****************************
R. v Murray
Murray charged with attempt to obstruct justice
ISSUES:
What was Murray’s purpose in concealing the tapes? (to obstruct justice or advance Bernardo’s defence)
Was it unethical to handle physical evidence without confronting the police?
****************************
Dilemma was that he was protecting solicitor-client privilege by not disclosing that he had the tapes which would harm his client, but the tapes also would help the prosecution
Actus reus found, but no mens rea = not guilty
Criminal act must be willful

10. R. v Murray Found not guilty
Actus reus but no mens rea (did not wilfully obstruct justice)
CASE RELEVANCE:
Further definition and instruction needed for lawyers in this situation

11. R. v Murray CASE RELEVANCE:
videotapes are NOT communication between client and solicitor, and as such, don’t constitute privilege
thus, while Murray’s discussions with Bernardo about the tapes are covered by privilege, the physical objects, the tapes, are not
maintaining confidentiality in the scheme of client-solicitor privilege is not permissible because evidence may have had some exculpatory value; still must turn over any incriminating physical evidence to the prosecutor if it improperly comes into your possession as lawyer
instead, they are evidence of crime because they pre-existed the client-solicitor relationship
hiding them from police on behalf of his client cannot be said to be part of client-solicitor communication
however, there is no positive obligation to assist the Crown