Pleading Not Guilty and Criminal Trials (1:VII): Difference between revisions
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Pleading Not Guilty and Criminal Trials (1:VII) (view source)
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*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 | ||
*A witnesses' character is such that they simply cannot be trusted (history of perjury, fraud or lying to the police). | *A witnesses' character is such that they simply cannot be trusted (history of perjury, fraud or lying to the police). | ||
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! style="font-style: italic;text-align: left;" | Practice Recommendation - Prior Inconsistent Statements | |||
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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. | |||
There are times when the clinician may not want to put a prior statement to a witness, even if there are inconsistencies; for example, 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: | |||
#"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 '[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]?" (yes) But here you told the police [reread the line of the transcript], which version do you now say is the truth? | |||
''For more information, please see the LSLAP Guide to Criminal Defence Work''. | |||
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==== a) Common objections ==== | |||
When the Crown is in the process of examining its witnesses, it is the clinician'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 clinician must rise from his or her seat, face the judge, say "objection," and then state the reason for the objection. At that point, 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. | |||
Leading Questions: | |||
:::A leading question is one where the answer is suggested in the question. For example: "did you see Joe punch the 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. | |||
Hearsay: | |||
:::Witnesses are expected to tell the court what they personally observed, heard or did. Hearsay is a common objection that arises because witnesses are often told things by other persons about the event. Hearsay is presumptively inadmissible if the purpose of introducing the hearsay is to have the trier of fact accept the truth of what the witness heard another person say. The Hearsay rule has a number of exceptions (See Below for more information about Hearsay objections). | |||