THE CRIMINAL TRIAL PROCESS

1. THE CRIMINAL TRIAL PROCESS

2. The Criminal Trial is an adversarial process (when 2 or more opposing sides present their case) that pits the Crown against the accused. • Each person charged with an offence, under Sect. 11 of the Charter, is “presumed innocent until proven guilty according to law.” • This places the burden of proof (whomever has the obligation to prove the guilt of the accused) on the Crown. • Proof of guilt must be beyond a reasonable doubt. • The first step in the trial is the ARRAIGNMENT – the reading of the charge to the accused, and the accused entering either a plea of guilty or not guilty. • The Judge then explains the role of the jury, and then the selection of a foreperson who will represent the jury and communicate with the judge takes place.

3. The Crown’s Opening Statement • The Crown presents first because it has the burden of proof. • The trial always begins with the Crown’s opening statement, which • Identifies the offence committed; • Summarizes the evidence against the accused; and • Outlines the way the Crown will present its case. • The opening statement is not evidence; the Crown will introduce evidence only when the opening statement is complete.

4. Examination of Witnesses • Most of the evidence presented in a criminal trial is presented through witnesses. • The first examination of a witness is called a DIRECT EXAMINATION. • The purpose is to determine what the witness observed about the crime; • After the direct examination, the defence counsel may cross-examine the witness to test the accuracy of the evidence or to convince the jury that there are contradictions in the witness’s testimony that weaken the Crown’s case.

5. The Defence Responds • When the Crown has finished with its witnesses, the Defence may bring a MOTION FOR DISMISSAL – a request that the judge dismiss the charges against the defendant because the Crown has failed to prove guilt beyond a reasonable doubt. • If the judge agrees, he/she can enter a DIRECTED VERDICT - to withdraw the case and enter a verdict of not guilty.

6. The Opening Statements • If the trial proceeds, the defence begins by summarizing its case in an opening statement; • It is during the opening statement of the defence where the defence of the accused is also stated. • The defence can also call witnesses to refute testimony provided by the Crown’s witnesses, or show reasonable doubt. • The procedure of direct examination (by the defence) and cross-examination (by the Crown) is repeated. • The defendant does not have to testify. • After the defence had presented all its evidence, the Crown has the opportunity to rebut, or contradict, any new evidence the defence has introduced; • The defence can then present further evidence for a surrebuttal – a contradiction of the Crown’s rebuttal.

7. The Rules of Evidence • During the trial, either the Crown or the defence may object to questions asked by the opposing attorney or to answer questions provided by witnesses. • When an objection is made, the judge has to make a decision as to whether or not the evidence in question is “admissible”, or accepted by the court.

8. Types of Objections in a Criminal Trial • LEADING QUESTION: • A question that suggest the witness to provide a particular answer during a direct examination (usually a “yes” or “no”). • For example “Wasn’t it Jag you saw holding a knife and stabbing Dalton?” is a leading question. This would prompt a “yes” or “no” answer, and would need to be reworded to “What did you see Jag do to Dalton?” • Leading questions are not allowed in direct examination, but ok in cross-examination.

9. HEARSAY STATEMENTS • Witnesses can only be asked about what they saw or experienced first-hand, not about what they heard from a third party. • For example “Jon told me he saw Jag stab Dalton” would be hearsay, and is not admissible. • OPINION STATEMENTS • Witnesses cannot be asked to give an opinion about matters that go beyond common knowledge unless the witness is a recognized expert in the field. • For example, only a car mechanic could give an opinion about the condition of a car’s brakes.

10. IMMATERIAL OR IRRELEVANT QUESTIONS • These questions have no connection with the matter at hand and are therefore inadmissible; • For example, in a murder trial, if the defence counsel asked the investigating officer a question about his personal life, the question may be dismissed as irrelevant if it has no bearing on the case. • NON-RESPONSIVE ANSWERS • When a witness provides a response that does not really answer the question. • When this happens, the judge might instruct the witness to answer the question properly.

11. Types of Evidence • There are many different types of evidence that can be introduce to a case, however all evidence must be “material” – important and relevant to the case in question. • Types of evidence include: • Direct evidence – evidence that directly links the accused to a crime, such as a witness; • Circumstantial evidence – evidence that indirectly links the accused to the crime, such as DNA, fibres or fingerprints left at the crime scene.

12. Self-incriminating; • Privileged communication; • Similar fact; • Hearsay; • Opinion; • Character; • Electronic surveillance; • Polygraph; • Photographs; • Confessions.

13. When a question about the admissibility of evidence arises in court, a voir dire is held. A voir dire is a trial within a trial to determine whether or not the evidence is admissible. If there is a jury present, the jury is removed; if the evidence is considered admissible, they are given the opportunity to consider it. If inadmissible, the jury will not be told of the evidence. • Any evidence that has been illegally obtain is also inadmissible

14. Summary of the Case (Summations) • After all testimony and evidence has been presented, both sides present a summary of the case in the form of closing arguments; • If the defence called witnesses during the trial, then they close first. If not, the Crown closes first. • The Crown has to show that guilt has been proven beyond a reasonable doubt; • The defence will try to show that the Crown has failed to establish actusreus and mensrea, so reasonable doubt exists. • Intended to help the jurors understand the issues involved in the case better.

15. Charge to the Jury • After the summations are presented by both sides, the judge will charge the jury – explain the law and how it applies to the case before them. • The judge will also advise on how to consider the evidence and how to return a verdict in accordance with the law. • After the charge has been given, the sheriff takes the jury to the jury room where they can deliberate their verdict.

16. Judge vs. Jury • Judge’s role is to decide on matters of law; the jury’s role is to decide on matters of fact. • The judge rules on what evidence is admissible; the jury decides what evidence is believable; If there is any doubt, or if the jury doesn’t know who to believe, they must acquit (provide a verdict of not guilty) If the jury cannot reach a unanimous verdict, they might be dismissed. This is called a HUNG JURY. A new jury is selected and a new trial takes place.

17. The Verdict • Once the jury has decided on their verdict, it is read in open court. • The Crown and defence can ask to poll the jury, and each jury member must then stand and state whether they agree or disagree with the verdict. • A finding of not guilty means the defendant will be allowed to go; a finding of guilty means that the defendant will be sentenced. • The jury usually has no role in the sentence, however they may make recommendations for parole eligibility.

18. STAGES IN A CRIMINAL TRIAL BY JURY

19. Assignment • Read Section 6.4 and complete the following: • Summarize the following different kinds of evidence: • Self-incriminating; • Privileged communication; • Similar fact; • Hearsay; • Opinion; • Character; • Electronic surveillance; • Polygraph; • Photographs; • Confessions. • Read the Issue on pages 212 and 213. Complete questions 1 – 4 on p. 213.