CLN 4U1
Mr. Laver
Trial Process Notes
PRINCIPLES OF THE CRIMINAL JUSTICE SYSTEM
-most countries have adopted the English adversarial system, where the
Crown and defence each have to argue their case
-his ensures that no matter what, the accused will have someone working on their
behalf
-in our system the “burden of proof” rests with the Crown
-this means that it is up to the Crown to prove guilt “beyond a reasonable doubt”
-reasonable doubt: “A standard of proof whereby a defendant’s guilt must be proven to
the extent that a reasonable person would have no choice to conclude that the defendant
did indeed commit the offense.”
-the accused is always presumed innocent until proven guilty
-reverse onus only applies for pre-trial custody
-if the Crown can’t prove guilt the defendant must be released
-this system puts more burden on the Crown than the defence
-it’s more desirable to let a guilty person go free than convict an innocent person
-most countries have adopted the English adversarial system, where the Crown and
defence each have to argue their case
-his ensures that no matter what, the accused will have someone working on their
behalf
CRIMINAL TRIAL PROCESS
-the Crown must divulge all of its evidence and witnesses to the defence ahead of time
-so that they can prepare a defence
-most criminal cases are tried before a judge alone, but the process is the same for a judge
and jury trial
Trial by judge:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Opening of court;
Crown’s opening statement;
Defence opening statement;
Crown presents evidence and witnesses, defence cross-examines;
Defence presents evidence and witnesses, Crown cross-examines;
Crown closing arguments;
Defence closing arguments;
Judge breaks to determine the verdict and sentence.
Judge gives verdict, sentence and res judicata (if guilty).
CLN 4U1
Mr. Laver
Trial by judge & jury:
1. Opening of court;
2. Crown’s opening statement;
3. Defence opening statement;
4. Crown presents evidence and witnesses, defence cross-examines;
5. Defence presents evidence and witnesses, Crown cross-examines;
6. Crown closing arguments;
7. Defence closing arguments;
8. Judge gives instructions to jury;
9. Jury deliberation;
10. Jury delivers verdict.
11. Judge passes sentence if guilty.
-the trial must occur within a reasonable time…why?
-the longer it takes the longer an “innocent” person is in pre-trial custody
-the more damage is done to a person’s reputation
-the harder it is for witnesses to recollect events
PARTICIPANTS
-the judge runs the trial, usually passes judgement and always determines the sentence
-they also decide how the case will be run by allowing or banning media or the
public
-they decide whether evidence and questions from either side are admissible
-a Justice of the Peace is like a judge for provincial or municipal offenses
-they can issue warrants and preside over bail hearings
-you do not need to have been a lawyer to be a JP
-the lawyer who prosecutes a criminal case is known as the Crown Attorney
-the burden is usually on them to prove guilt beyond a reasonable doubt
-the lawyer who represents the accused is the defence attorney
-their job is to prove reasonable doubt
-Crown and defence attorneys can meet outside of court to work on plea bargains
-other participants are the court clerks, court reporters, sheriffs and bailiffs
-the sheriff and bailiffs must make sure the accused comes to court and are
responsible for the safety of the courtroom
-for certain indictable offenses the defendant can opt for trial by judge and jury
-a list of potential jurors is chosen at random from the voter’s list
-must be 18 years of age, a Canadian citizen and have no prior conviction for an
CLN 4U1
Mr. Laver
indictable offense
-certain groups are exempt from jury duty
-lawyers, judges, anyone in law enforcement, doctors, university students
-anyone who can prove that they cannot serve for jury duty
-once a panel of potential jurors is selected, the Crown and defence can challenge them
-“challenge for cause” means that a potential juror can be excused for bias
-“peremptory challenge” means that they can be excused with no explanation
-there are only a limited number allowed
-the reason for challenges is to select an impartial jury
EVIDENCE IN COURT
-evidence is used by the Crown and defence to reconstruct events
-it is up to the judge to determine what evidence is relevant and admissible
-i.e. evidence improperly obtained is inadmissible
-evidence given by witnesses (direct evidence) is a verbal description about what the
witness knows about the event
-after they give their account they are subjected to cross-examination by the
opposing lawyer
-direct evidence has to be first-hand, otherwise it’s hearsay and inadmissible
-physical evidence is anything physically found at the scene
-weapons, blood, DNA, fibres, etc…
-basically any objects or forensic evidence
-often information gleaned from these sources is interpreted in court by expert witnesses
-who are then cross-examined by opposing counsel
-circumstantial evidence is any indirect link between the accused and the crime
-i.e. something belonging to the accused is found at the scene, but no definitive
link
-not enough on its own to convict
-if either side believes that evidence should not be admitted a procedure known as “voir
dire” (to see, to say) takes place
-if there is a jury they are removed while it’s discussed
-if it’s inadmissible they are never told of it
-the judge hears the arguments and decides if it’s admissible or not