Practice Recommendations on Criminal Law for Law Students (1:XIII): Difference between revisions
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Practice Recommendations on Criminal Law for Law Students (1:XIII) (view source)
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 7, 2024}} | ||
{{LSLAP Manual TOC|expanded = criminal}} | {{LSLAP Manual TOC|expanded = criminal}} | ||
== A. Ensuring the Crown Can Prove Its Case == | == A. Ensuring the Crown Can Prove Its Case == | ||
Prior to asking an accused what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the accused. Even if the client admits their guilt, an accused must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt. Successful defence work can result in a factually guilty client being acquitted because Crown | Prior to asking an accused what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the accused. Even if the client admits their guilt, an accused must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt. Successful defence work can result in a factually guilty client being acquitted because Crown counsel does not present evidence to prove guilt beyond a reasonable doubt. It is unethical however, to counsel a client to lie under oath or knowingly have a client testify to a falsehood. | ||
== B. Explaining a Client’s Options == | == B. Explaining a Client’s Options == | ||
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Students must never force an accused person to choose a particular option, particularly one where the accused is required to admit guilt. '''It is always the client who ultimately decides the course of action they wish to follow.''' | Students must never force an accused person to choose a particular option, particularly one where the accused is required to admit guilt. '''It is always the client who ultimately decides the course of action they wish to follow.''' | ||
The accused may ask the student what they should do or what option they should take. The student should always remind the client that the choice is up to them, and refrain from telling the client what to do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the student must not counsel a client to plead guilty unless they admit their guilt '''AND''' the Crown can prove its case beyond a reasonable doubt. | The accused may ask the student what they should do or what option they should take. The student should always remind the client that the choice is up to them, and refrain from telling the client what to do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the student must not counsel a client to plead guilty unless they admit their guilt '''AND''' the Crown can prove its case beyond a reasonable doubt. | ||
In explaining the student’s assessment of whether Crown can prove its case beyond a reasonable doubt the student should never give clients “odds” or their chances of winning an acquittal. Rather, students should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence. | In explaining the student’s assessment of whether Crown can prove its case beyond a reasonable doubt the student should never give clients “odds” or their chances of winning an acquittal. Rather, students should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence. | ||
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Prior to the trial commencing one should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or ''Charter'' challenge to the evidence can be canvassed with Crown counsel prior to the start of a trial. Generally, unless there is a good strategic reason to not inform Crown counsel, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time. | Prior to the trial commencing one should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or ''Charter'' challenge to the evidence can be canvassed with Crown counsel prior to the start of a trial. Generally, unless there is a good strategic reason to not inform Crown counsel, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time. | ||
Challenging the admissibility of evidence is perhaps the most important work that the defence can perform as an advocate for the client, as lay litigants are ill-equipped to recognize and challenge inadmissible evidence. Rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts. Diligent preparation would allow the student to present challenges to the admissibility of evidence and have inadmissible evidence excluded from the court’s consideration. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility. | Challenging the admissibility of evidence is perhaps the most important work that the defence can perform as an advocate for the client, as lay litigants are ill-equipped to recognize and challenge inadmissible evidence. Rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts. Diligent preparation would allow the student to present challenges to the admissibility of evidence and have inadmissible evidence excluded from the court’s consideration. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility. | ||
== F. Setting the Trial Date == | == F. Setting the Trial Date == | ||
