THE TRIAL IN CANADIAN THE TRIAL IN CANADIAN COURTS – Part 2COURTS – Part 2LAW 12MUNDY - 2008

TRIAL PROCEDURETRIAL PROCEDURECrown 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

ARRAIGNMENTARRAIGNMENTArraignment = reading of the

chargeOnce 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 EVIDENCECROWN’S EVIDENCEAfter 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 EVIDENCECROWN’S EVIDENCETwo 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 EVIDENCECROWN’S EVIDENCEExamination-in-chief is the first

questioning of a witnessCrown interviews potential witnesses

prior to trial, so knows info alreadyHence, 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 EVIDENCECROWN’S EVIDENCEAfter each examination-in-chief of a

witness, defence is allowed to cross-examine him/her

Leading questions may be usedDefence 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 EVIDENCECROWN’S EVIDENCEAfter 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 EVIDENCECROWN’S EVIDENCEOnce 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 EVIDENCEDEFENCE’S EVIDENCEBefore 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 EVIDENCEDEFENCE’S EVIDENCEFirst, 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)

WITNESSESWITNESSESA 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

WITNESSESWITNESSESWitnesses are called to the stand

and must take either:Oath = swear to tell the truth with

one hand on the BibleAffirmation = solemn/formal

declaration that witness will tell truthIf witness gives false evidence

knowingly with intent to mislead court, witness is charged with perjury (max. 14yrs jail)

WITNESSESWITNESSESWitnesses 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

WITNESSESWITNESSESAdverse 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)

WITNESSESWITNESSESAccused does not have to take

the witness standDefence 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