Evidence

1. Evidence

2. The Presentation of Evidence • Evidence presented by both the Crown and the defence must be presented in the form of witness testimony and exhibits. All evidence that is relevant, reliable, and fair is admissible. • The Crown presents their case first then the defence presents its case.

3. Arraignment • At the opening of a criminal trial, the charge read to the accused and the plea entered. • Must include the charge contained in the indictment (the formal written document charging an accused with a crime) • If the accused refuses to plead, a not-guilty plea is automatically entered on their behalf. • Justin Bieber’s Arraignment – Remember this is the US law

4. Direct Evidence: The best evidence is usually obtained from a witness who actually saw the offence being committed.

5. Circumstantial Evidence: though not as certain as direct evidence, can still be quite useful. For example, if a witness says she was standing outside a bank, saw a person run into the bank with a gun and a bag, heard shots, and then saw the same person run out of the bank, her evidence to the fact that a bank robbery occurred is valuable, but circumstantial in that she did not actually see the robbery committed. • The accused GENERALLY cannot be convicted on circumstantial evidence alone. Example: Steven Truscott was convicted of rape and murder purely on circumstantial evidence. • My Cousin Vinny • Aaron Hernandez – circumstantial case

6. The examination-in-chief is the first questioning of a witness. No leading questions (a question which indicates the answer and generally leads to a “yes” or “no” response) are allowed since the Crown will have interviewed its witness when preparing. • Legally blonde

7. The defence lawyer may cross-examine a witness when the Crown has finished. Leading questions may be used at this time. Weighing of the evidence will require the judge or jury to determine which, of the one or more conflicting bits of evidence, is the most convincing. The credibility of witnesses is an important factor in this determination. Jodi Arias – cross examination

8. Disclosure of Evidence • Prior to a trial, the Crown must disclose all of its evidence to the Defence so that the accused fully understands the Crown’s case and so that a defence can be prepared. • The defence may disclose evidence or arguments that prove to the Crown that it does not have a case.

9. RULES OF EVIDENCE

10. These have developed over many years and are quite complex (Canada Evidence Act). • A session without the jury is sometimes necessary to determine the admissibility of evidence - a voirdire (means: to see, to speak). • A witness is protected against the results of his/her testimony - self-incrimination (section 13 of the Charter of Rights & Freedoms) – evidence witnesses give in court must not be used against them later.

11. TYPES OF EVIDENCE

12. 1. Privileges communications • Confidential communication that cannot be disclosed. • One spouse cannot be compelled to testify against the other, in most cases - privileged communication. Other examples are doctor/patient, clergy/church member, lawyer/ client. • However, a spouse may choose to give evidence for the defence. • Some exceptions apply, such as in crimes of violence against the spouse, certain crimes related to sex and some offences committed against minors.

13. 2. Similar Fact Evidence • to show a past pattern of behaviour (often not admissible)

14. 3. Hearsay Evidence • statements or writings by someone other than the witness (often not admissible) • must be necessary and dependable Drew Peterson: Murder wife #3

15. 4. Opinion Evidence • Information based on the thoughts of the witness, usually an expert

16. 5. Character Evidence • difficult for the Crown to get admitted since the jury is supposed to decide on the basis of facts only. • Witnesses can be questioned about their previous history to verify their credibility. • The accused can be questioned this way only if he takes the stand.

17. 6. Photos • judge determines admissibility since some act merely to inflame the jury.

18. 7. Interception devices and video surveillance • private conversations can be intercepted only if one party consents, or by court order. • a potential victim of violence (e.g. spousal abuse or stalking, can authorize police) Robbery suveillance

19. 8. Polygraph evidence • In a polygraph (lie detector) test, a person is asked questions while hooked up to a machine that measures changes in blood pressure, respiration, and pulse rate to indicate whether the person is telling the truth. • Supreme Court of Canada has ruled polygraph tests are hearsay and therefore inadmissible as evidence.

20. 9. Confessions • inculpatory: an admission • exculpatory: a denial • one given without being told of the right to counsel, may be inadmissible. • also those given under duress, involuntarily or with a promise of leniency jailhouse confessions often questionable. • The admission of illegally obtained evidence has been the subject of huge debate since the Charter was passed Will Ferrell – Interrogation room – skip to 1 min

21. ENTERING AN EXHIBIT INTO EVIDENCE

22. Every exhibit must be introduced through an appropriate witness who can identify it and tell the court what connection the exhibit had with the crime. Example: • Q: “ I am showing you a document/item/object/photograph. Do you recognize it?” • A: “Yes.”

23. Counsel will introduce the exhibit in the course of examining the witness. Often counsel must establish a chain of control by having all witnesses who handled an exhibit testify. Where necessary, ask questions regarding the continuity of the evidence. For example: • What happened to it over time, from place to place • Who handled it • How was it packaged/transported?

24. Example: “What did you do with __________ once you recovered/found/obtained it?” • When entering an exhibit counsel should state, “We wish to enter this (name item) as an exhibit.” (Hand the item to the court clerk.) • ** This is very important to ensure that the item is introduced to the court and that the judge will be able to rule on the admissibility of the evidence.