Criminal Trial ProcessCriminal Trial Process

““Innocent until proven guilty”Innocent until proven guilty”

Burden of ProofBurden of Proof – Crown’s – Crown’s obligation to prove the guilt obligation to prove the guilt

of the accused beyond a of the accused beyond a reasonable doubt.reasonable doubt.

1. Trial begins with the judge explaining the jury’s role and asks the 12 members to select a foreperson (says verdict) to communicate with the judge.

2. 2. Crown presents opening Crown presents opening statementstatement::

Identifies offence committedIdentifies offence committed Summarizes evidenceSummarizes evidence Outlines how the Crown will present Outlines how the Crown will present

its case.its case.

3. 3. Crown calls witnessesCrown calls witnessesDirect examinationDirect examination – first questioning of a – first questioning of a

witness to determine what he/she witness to determine what he/she observed about the crime.observed about the crime.

Cross-examinationCross-examination – second questioning of – second questioning of a witness by the defense to test the a witness by the defense to test the accuracy of the testimony.accuracy of the testimony.

Four Purposes of Cross-Four Purposes of Cross-examination:examination:

1)1)          To elicit new information not To elicit new information not givengiven

2)2)          To obtain a different To obtain a different interpretation of the factsinterpretation of the facts

3)3)          To challenge the powers of To challenge the powers of observation and recall of the witnessobservation and recall of the witness

4)4)          To test the reliability and To test the reliability and credibility of the witnesscredibility of the witness

IV After the Crown calls all IV After the Crown calls all witnesses the Defense may bring a witnesses the Defense may bring a ““motion for dismissalmotion for dismissal””  Judge has two optionsJudge has two options: :

1)1)        Directed verdictDirected verdict – withdraw – withdraw case and enter a verdict of not case and enter a verdict of not guilty.guilty.2)2)        Not dismiss the case and trial Not dismiss the case and trial proceeds (if pleading not guilty still)proceeds (if pleading not guilty still)

V V Defence makes opening Defence makes opening statement:statement:

May call witnesses to refute prior testimonies May call witnesses to refute prior testimonies or show reasonable doubtor show reasonable doubt

Direct examination and cross-examination Direct examination and cross-examination occur (reverse)occur (reverse)

  

VI After all evidence from defense is VI After all evidence from defense is presented the Crown can “presented the Crown can “rebutrebut” – ” – contradict evidence introduced by contradict evidence introduced by the opposing side.the opposing side.

Defense counsel can then present a Defense counsel can then present a ““surrebuttalsurrebuttal” – reply to the Crown’s ” – reply to the Crown’s rebuttal.rebuttal.

Rules of EvidenceRules of Evidence

#1) Cannot ask a “#1) Cannot ask a “leading questionleading question”.”.ie: “ie: “You are hard of hearing, aren’t you?”You are hard of hearing, aren’t you?”

“ “Wasn’t it Joe you saw with the knife?”Wasn’t it Joe you saw with the knife?”

#2) #2) HearsayHearsay evidence evidence is not admissible. is not admissible.  #3) #3) Opinion EvidenceOpinion Evidence is not admissible is not admissible

unless given by experts qualified in a unless given by experts qualified in a particular area.particular area.

Rules of EvidenceRules of Evidence

#4) #4) Immaterial or Irrelevant QuestionsImmaterial or Irrelevant Questions are not admissible – no connection are not admissible – no connection with the matter at hand. All evidence with the matter at hand. All evidence must relate to the case.must relate to the case.

#5) #5) Non-responsive AnswersNon-responsive Answers – if a – if a witness does not answer the question witness does not answer the question posed, the judge can direct the witness posed, the judge can direct the witness to answer the question properly.to answer the question properly.

Types of EvidenceTypes of Evidence

A)A)  Direct EvidenceDirect Evidence – testimony given by – testimony given by a witness to prove an alleged fact based a witness to prove an alleged fact based on what he/she saw, heard, tasted, on what he/she saw, heard, tasted, touched…touched…

B)B)  Circumstantial EvidenceCircumstantial Evidence – indirect – indirect evidence that leads to a reasonable evidence that leads to a reasonable inference of the defendant’s guilt.inference of the defendant’s guilt.

Types of EvidenceTypes of EvidenceC) C) Character EvidenceCharacter Evidence – evidence used to – evidence used to

establish the trustworthiness of the establish the trustworthiness of the person giving evidence.person giving evidence.

Is the person the type that would Is the person the type that would commit a crime.commit a crime.

Prosecution can not attack a person’s Prosecution can not attack a person’s character.character.

The defence can try to prove it is not in The defence can try to prove it is not in the defendant’s character to commit the defendant’s character to commit the crime and establish good character. the crime and establish good character.

Types of EvidenceTypes of EvidenceD)    Electronic Surveillance – use of an electronic device to overhear or record communications between two or more people.ie: wiretapping(telephone) and bugging(records voice)

E) E) Polygraph TestsPolygraph Tests – “lie detector” – “lie detector” tests.tests.

Measures changes in pulse, Measures changes in pulse, respiration and blood pressure.respiration and blood pressure.

Not entirely accurate though (varies Not entirely accurate though (varies with the skill of the examiner)with the skill of the examiner)

Not used as evidence to prove that a Not used as evidence to prove that a person is lying or telling the truth person is lying or telling the truth about a particular crime.about a particular crime.

Voir Dire – mini-trial or “trial within a trial”. This is a hearing during a trial and in the absence of the jury.

The jurors are escorted from the courtroom and the judge, Crown and Defence discuss the admissibility of evidence.

 

VII VII Summary of the CaseSummary of the Case

• after all testimony has been given, after all testimony has been given, each counsel presents a summary of each counsel presents a summary of the case in the form of closing the case in the form of closing arguments.arguments.

VIII Charge to the Jury – Judge’s explanation to the jurors of how the law applies to the case before them. The Sheriff escorts jurors to the jury room to deliberate on their verdict.

 

VIV The Verdict – must be unanimous

 

Hung Jury – a jury that can’t reach an unanimous decision and is dismissed from the case. A new jury is selected to try the case again.

AppealsAppeals

          must be filed within 30 daysmust be filed within 30 days           heard in the correct appeals courtheard in the correct appeals court           3 choices3 choices: :

a) agree with the lower court’s decisiona) agree with the lower court’s decision

b) reverse the lower court’s decisionb) reverse the lower court’s decision

c) order a new trialc) order a new trial

AppealsAppeals

  either the Defence or the Crown can either the Defence or the Crown can appeal in criminal cases (can appeal appeal in criminal cases (can appeal sentence too)sentence too)

appeals are generally heard by a appeals are generally heard by a panel of 3-5 judges using the original panel of 3-5 judges using the original transcripts, exhibits and legal transcripts, exhibits and legal documents of the case (majority documents of the case (majority decision)decision)

Plea Bargaining – the majority of people charged with criminal offences never go to trial. Instead, the Crown and Defence negotiate a “plea bargain”. This is a negotiated deal whereby the accused pleads guilty in exchange for a lighter sentence.

 ie: first degree murder = life sentence with no parole for 25 years.

Plead guilty to second degree murder (possible parole after 10 years)

Famous Plea Bargain Case:Famous Plea Bargain Case: Karla HomolkaKarla Homolka

May 1993, in exchange May 1993, in exchange for her sworn for her sworn statements against her statements against her estranged husband, estranged husband, Paul Bernardo, Karla Paul Bernardo, Karla was charged with two was charged with two counts of counts of manslaughter in manslaughter in relation to the relation to the homicides of Leslie homicides of Leslie Mahaffy and Kristen Mahaffy and Kristen French. She received French. She received two 12-year sentences two 12-year sentences to be served to be served concurrently.concurrently.