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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=== 5. Directed verdict/ no evidence motion === | === 5. Directed verdict/ no evidence motion === | ||
In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt: | In all criminal cases, it is the Crown’s obligation to prove beyond a reasonable doubt: | ||
*Time & Date of the offence. | |||
*Location and Jurisdiction of the offence (e.g.: it happened in Surrey, British Columbia). | |||
*Identity of the accused. | |||
*The elements of the crime actually happened (''Actus Reus''). | |||
*The accused intended to commit the crime (''Mens Rea''). | |||
If the Crown failed to lead any evidence on any of the above, the defence should make a no evidence motion. This asks the judge to direct the acquittal of the accused on the ground that there is absolutely no evidence of some essential element of the offence. The test was articulated by Ritchie, J. in ''USA v Shephard'', above (also ''R v Charemski'', [1998] 1 SCR 679). Arguments by the Crown and defence will be heard. If the defence’s "no evidence" motion fails, the defence may then call its own evidence. | |||
:'''Note:''' The defence may make an insufficient evidence motion when the Crown has failed to bring sufficient evidence to prove a specific element of the offence beyond a reasonable doubt. If an insufficient evidence motion fails, the defence cannot call evidence. The only practical difference between making an insufficient evidence motion and calling no evidence, allowing Crown to make its closing argument, and then urging the court to acquit based on reasonable doubt is who presents closing argument on the point first. It is usually perceived an advantage to have the last word and hence insufficient evidence motions are typically only used in conjunction with a no evidence motion, where counsel is of the opinion that although a no evidence motion has just failed an insufficient evidence motion is very likely to succeed. | |||
=== 6. Presentation of defence case === | |||
All accused have the right to testify in their own defence and the right to call other witnesses. After the defence examines its witnesses, the Crown has the right to cross-examine these witnesses. The defence may re-examine them in relation to new areas that could not have been anticipated ahead of time. For a discussion on when this is appropriate, see "Presentation of Prosecution's Case," above. (See ''Examination of Witnesses in Criminal Cases'' by Earl J Levy QC for a discussion of these techniques). | |||
The defence will be invited to make closing submissions once all evidence has been heard. If the defence has called evidence, the defence closes first. If the defence does not call evidence, Crown closes first. The three main sections of closing submissions are: the facts, the law, and most importantly, applying the law to the facts that the judge should find. The judge can accept all, part, or none of a witness' testimony. If the client testifies, the ''W(D)'' principles (below) should also be discussed. | |||
{| class="wikitable" | |||
! style="font-style: italic;text-align: left;" | Practice Recommendation - Entering Exhibits | |||
|- | |||
| An exhibit should be entered through the witness who made (or found) the exhibit so they can validate it. Exhibits may be a photograph, a written document such as an email, or physical evidence such as an assault weapon. In the case of a photograph, the person who took the actual photograph is the one likely to enter the exhibit. It is also possible for the person identified in the photograph to enter the exhibit. | |||
Example of an exhibit being entered by someone who took the photograph: | |||
*"You have previously provided me with a photograph. Did you take this photograph? When did you take this photograph? And this is a true an accurate depiction of the scene as depicted on the date you took the photograph?" "Your Honour, I ask that this photograph be entered as the next exhibit." | |||
Example where an individual depicted in the photograph enters the exhibit: | |||
*"You have provided me with a photograph of some injuries. Who is depicted in this photograph? When was this photograph taken? And is this a true and accurate depiction of your injuries as of the date this was taken?" "Your Honour, I ask that this photograph be entered as the next exhibit." | |||
'''The court will number each exhibit as they are entered, either place the appropriate number on your copy of each exhibit or keep an exhibit list so that you may refer the court or other witnesses to them later.''' | |||
|} | |||
==== a) Common defences ==== | |||
For the defences below to be raised, they must have an air of reality. This means that all of the elements of the defence would exist if the defendant were believed on the stand. The defendant is responsible for raising this air of reality. Once that is completed, in order to obtain a conviction, the Crown must then prove beyond a reasonable doubt that the defence was not applicable in the circumstance. If that is not achieved, the defendant is acquitted. | |||