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Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"
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Pleading Not Guilty and Criminal Trials (1:VII) (view source)
Revision as of 13:58, 25 August 2022
, 13:58, 25 August 2022→3. Presentation of prosecution's case
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The goal of the defence at trial is NOT to find the truth or to seek justice. The goal of the defence counsel (or the accused if self-represented) is to test the Crown’s case and to present evidence, where appropriate, in order to either show that the evidence as a whole fails to prove the accused’s guilt beyond a reasonable doubt, or to raise a reasonable doubt as to the guilt of the accused. Keep in mind that one way to reach reasonable doubt is to convince the trier of fact that, based on the evidence presented, they simply cannot know for sure what happened. The adversarial process, with defence counsel and Crown Counsel fulfilling their respective roles before a neutral trier of fact, has been one of the most effective ways to find the truth and seek justice. The adversarial process depends upon capable defence counsel vigorously challenging Crown’s case and pursuing viable defences. | The goal of the defence at trial is NOT to find the truth or to seek justice. The goal of the defence counsel (or the accused if self-represented) is to test the Crown’s case and to present evidence, where appropriate, in order to either show that the evidence as a whole fails to prove the accused’s guilt beyond a reasonable doubt, or to raise a reasonable doubt as to the guilt of the accused. Keep in mind that one way to reach reasonable doubt is to convince the trier of fact that, based on the evidence presented, they simply cannot know for sure what happened. The adversarial process, with defence counsel and Crown Counsel fulfilling their respective roles before a neutral trier of fact, has been one of the most effective ways to find the truth and seek justice. The adversarial process depends upon capable defence counsel vigorously challenging Crown’s case and pursuing viable defences. | ||
=== 3. Presentation of | === 3. Presentation of Prosecution's case === | ||
Once a plea has been entered, witnesses will be excluded and the trial begins. The Crown may start with an opening address and then begin calling witnesses for examination and introducing any real evidence (objects, documents, etc.). Next, defence counsel or the accused (if not represented), may cross-examine the Crown witnesses. The Crown may then re-examine their witness; however, this re-examination is limited to clarifying or explaining answers given during cross-examination. | Once a plea has been entered, witnesses will be excluded and the trial begins. The Crown may start with an opening address and then begin calling witnesses for examination and introducing any real evidence (objects, documents, etc.). Next, defence counsel or the accused (if not represented), may cross-examine the Crown witnesses. The Crown may then re-examine their witness; however, this re-examination is limited to clarifying or explaining answers given during cross-examination. During re-examination new material can only be entered only with leave of the Court. If leave is granted, and new material entered during re-examination, then the defence will be given an opportunity to recross-examine on the new evidence (See: Earl J Levy, ''Examination of Witnesses in Criminal Cases''). | ||
The goal in cross-examination is to | The goal in cross-examination is to both secure any helpful, defence friendly evidence that the witness may agree to, and to challenge the unhelpful evidence that the witness has testified to. Oftentimes a witness has nothing helpful to say about the accused and cross examination is used to challenge the reliability and/or credibility of the witness's evidence. The defence/accused is entitled to cross-examine a witness on any issue that is relevant or material to the case and is entitled to substantial leeway in their manner of conducting cross examination. The rule in ''[https://www.canlii.org/en/ca/forep/doc/1893/1893canlii65/1893canlii65.html?searchUrlHash=AAAAAQANYnJvd25lIHYgZHVubgAAAAAB&resultIndex=1 Browne v. Dunn]'' (1893) 6 R 67, H.L, states that the defence/accused must put its case to each witness on cross-examination. This means that if there is a good possibility that the accused will testify in their own defence or the accused has a specific defence theory that defence/accused's counsel will argue at the end of the defence/accused’s case, then each Crown witness must be confronted with the defence’s/accused’s anticipated defence evidence or theory and provided the opportunity to comment upon that evidence or theory. Typically, this is done at the end of the defence/accused’s cross-examination of each witness with a number of “I suggest to you that…” | ||
Reliability refers to a witness’s ability to perceive an event accurately, and later recall and describe that event with detail and precision. | Reliability refers to a witness’s ability to perceive an event accurately, and later recall and describe that event with detail and precision. Reliability challenges can focus on the scene, lighting, visibility, intoxication, and any obstructions or distractions, which may have affected the witness’s perception. It can also be the state of the witness at the time (perhaps they were intoxicated at the time). | ||
Credibility refers to a witness’s desire or motivation to describe that event truthfully. Some common credibility challenges include: | Credibility refers to a witness’s desire or motivation to describe that event truthfully. Some common credibility challenges include: | ||
* A motive based on personal animus towards the accused; | |||
* A motive based on a personal bias towards the complainant or victim of the alleged crime; | * A motive based on a personal bias towards the complainant or victim of the alleged crime; | ||
* A motive based on a perceived advantage from the police arising from providing evidence to the police; and | * A motive based on a perceived advantage from the police arising from providing evidence to the police; and | ||
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| Sections 9 and 10 of the ''Canada Evidence Act'' outline the principles of cross-examination as to previous statements of a witness in criminal investigation. Prior statements can be used to question the reliability or credibility of that witness. The trier of fact decides whether there was actually an inconsistency and whether that inconsistency affects the witness’s credibility or reliability or both. | | Sections 9 and 10 of the ''Canada Evidence Act'' outline the principles of cross-examination as to previous statements of a witness in criminal investigation. Prior statements can be used to question the reliability or credibility of that witness. The trier of fact decides whether there was actually an inconsistency and whether that inconsistency affects the witness’s credibility or reliability or both. | ||
There are times when the defence may not want to put a prior statement to a witness, even if there are inconsistencies (i.e., if the previous version is much worse than the version the witness presented in court). | :'''NOTE''': There are times when the defence may not want to put a prior statement to a witness, even if there are inconsistencies (i.e., if the previous version is much worse than the version the witness presented in court). | ||
Procedure for putting a prior inconsistent statement to a witness: | Procedure for putting a prior inconsistent statement to a witness: | ||
# “You gave a statement to the police on December 4, 2010?” (yes). “I am showing you a transcript of that statement.” OR “I am showing you a 4-page written statement. Is this your handwriting? Are those your initials at the bottom of each page and your signature at the end of the document?” | # “You gave a statement to the police on December 4, 2010?” (yes). “I am showing you a transcript of that statement.” OR “I am showing you a 4-page written statement. Is this your handwriting? Are those your initials at the bottom of each page and your signature at the end of the document?” | ||
# | # | ||
# “I refer you to page 3, line 8, where you said | # “I refer you to page 3, line 8, where you said [read out what is in the transcript or statement verbatim, including any ums and ahs. However, you may abbreviate any swear words to their first letter]. You said that? (yes) You knew it was important to tell the police the truth? (yes) That was the truth? (if no) So you lied to the police when you told them that?" | ||
# | # | ||
# “You said in your direct examination when my friend was asking you questions [summarize conflicting evidence from your notes]? | # “You said in your direct examination when my friend was asking you questions [summarize conflicting evidence from your notes]? (yes) But here you told the police [reread the line of the transcript]. Which version do you now say is the truth?" | ||
|} | |} | ||
==== a) Common objections ==== | ==== a) Common objections ==== | ||
When the Crown is in the process of examining its witnesses, it is the defence/accused’s job to ensure the Crown is doing so properly. Below are some common actions that lead to objections in a trial. In order to raise an objection | When the Crown is in the process of examining its witnesses, it is the defence/accused’s job to ensure the Crown is doing so properly. Below are some common actions that lead to objections in a trial. In order to raise an objection the defence/accused must rise from their seat, face the judge, say “objection,” and then state the reason for the objection. At that point, the Crown will either agree or disagree with the objection. If the Crown disagrees, the judge will make a ruling on the spot regarding the objection. The defence/accused should also consider whether the witness should be excused from the courtroom prior to stating the reason for the objection or at any point in the discussion about the objection. | ||
Leading Questions: | Leading Questions: | ||
:::A leading question is one where the answer is suggested in the question. For example: | :::A leading question is one where the answer is suggested in the question. For example: “Did you see Joe punch Steve?” The party calling the witness cannot ask leading questions. However, on cross-examination, the practice is allowed and encouraged. A common exception to the rule against leading questions in direct is when leading questions are used in order to introduce matters to the court. For example, “Your name is John Doe and you reside at 555 University Drive?” Leading questions may also be used in direct examination if they relate to non-contentious issues. (Note: it is good practice to let the Crown Counsel know what the contentious issues are ahead of time in order to prevent an objection of leading a witness during trial). | ||
Hearsay: | Hearsay: | ||
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:::Hearsay is generally defined as an out of court statement, offered in evidence to prove the truth of the matter asserted. The key factor in determining if a statement is, in fact, hearsay is the purpose for which the statement is being used. For example, if the witness on the stand states “the passenger in the car told me that the light was red” this is hearsay if: it is being used to prove that the light was actually red. It is unobjectionable and being used for a non-hearsay purpose if the colour of the light is not a contentious fact and the statement is instead being used as evidence that the passenger was alert and responsive. | :::Hearsay is generally defined as an out of court statement, offered in evidence to prove the truth of the matter asserted. The key factor in determining if a statement is, in fact, hearsay is the purpose for which the statement is being used. For example, if the witness on the stand states “the passenger in the car told me that the light was red” this is hearsay if: it is being used to prove that the light was actually red. It is unobjectionable and being used for a non-hearsay purpose if the colour of the light is not a contentious fact and the statement is instead being used as evidence that the passenger was alert and responsive. | ||
:::There are some categorical exceptions to the hearsay rule, where evidence even though introduced for a hearsay purpose, will generally be admissible if the prerequisites for that exception are met. These are called the “traditional” exceptions to the hearsay rule and include: | :::There are some categorical exceptions to the hearsay rule, where evidence, even though introduced for a hearsay purpose, will generally be admissible if the prerequisites for that exception are met. These are called the “traditional” exceptions to the hearsay rule and include: | ||
:::# voluntary confessions; | :::# voluntary confessions; | ||
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:::# declarations of a state of mind or bodily condition as evidence of the state reported, but not of its cause (for example, using the declaration “I’m cold” to establish that the person making the statement was cold, but not using it for the assumption that the weather outside was cold that day); | :::# declarations of a state of mind or bodily condition as evidence of the state reported, but not of its cause (for example, using the declaration “I’m cold” to establish that the person making the statement was cold, but not using it for the assumption that the weather outside was cold that day); | ||
:::# statements of intention (used to increase the probability that the person who made the statement actually performed that intended action); | :::# statements of intention (used to increase the probability that the person who made the statement actually performed that intended action); | ||
:::# spontaneous declarations (Res Gestae - statements made so closely to the event that they are connected to it; and | :::# spontaneous declarations (''Res Gestae'' - statements made so closely to the event that they are connected to it); and | ||
:::# Past Recollection Recorded. | :::# Past Recollection Recorded. | ||
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Opinions from Non-Experts: | Opinions from Non-Experts: | ||
:::As a rule, witnesses should not make any inferences or state their opinion about what that evidence proves in their testimony (for example, “I think Steve was going grocery shopping because I saw him with an empty fabric grocery bag”). Instead, the witness should simply state “I saw Steve and, in his hands, he was holding an empty fabric grocery bag.” Conclusions drawn from what is seen or heard is for the trier of fact to draw not the witness to opine. There are | :::As a rule, witnesses should not make any inferences or state their opinion about what that evidence proves in their testimony (for example, “I think Steve was going grocery shopping because I saw him with an empty fabric grocery bag”). Instead, the witness should simply state “I saw Steve and, in his hands, he was holding an empty fabric grocery bag.” Conclusions drawn from what is seen or heard is for the trier of fact to draw, not the witness to opine. There are exceptions to these exceptions. For example, although generally the court does not permit non-expert opinion evidence, someone who is intimately familiar with a person’s appearance can, in certain situations, provide evidence that they recognize that person from surveillance photographs or video. | ||
=== 4. ''Challenging the Admissibility of Evidence'' === | === 4. ''Challenging the Admissibility of Evidence'' === | ||
