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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''Note: if there is a no contact order in place, the clinician can contact the witness only to discuss the trial, but the client cannot''. | ''Note: if there is a no contact order in place, the clinician can contact the witness only to discuss the trial, but the client cannot''. | ||
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==== b) Preparing a witness ==== | |||
Defence counsel should thoroughly prepare witnesses for trial. A witness must tell the truth as he or she knows it, but prior rehearsal of possible questions and answers is advised. All answers should address the specific questions asked. Witnesses should be appropriately dressed. | |||
==== c) Testimony of witness ==== | |||
A witness is required either to swear an oath or to solemnly affirm that he or she will tell the truth. Section 16(3) of the ''Canada Evidence Act'' permits a witness who is able to communicate the evidence, but does not understand the nature of an oath or a solemn affirmation due to age (under 14 years) or insufficient mental capacity, to testify – as long as he or she promises to tell the truth. | |||
The judge decides whether to admit or exclude evidence, as governed by the laws of evidence, case law, the Charter, the ''BC Evidence Act'', the ''Canada Evidence Act'', and the statute creating the offence. Evidence must be relevant to the facts in issue. The facts in issue are those that go to establishing the essential elements of the offence and any legal defence to that offence. Evidence may be presented with respect to other issues as well, such as the credibility of a witness, provided that the evidence does not offend the collateral evidence rule. | |||
==== d) Admission or confession (to a person in authority) ==== | |||
Where the accused has made a statement outside the trial, for example while being questioned by the police (or a store detective, transit police, and other person in authority), the Crown may seek to use this statement, | |||
*as evidence of an admission or confession by the accused, or | |||
*for the purposes of cross-examination during trial. | |||
There are two different kinds of statements, admissions and confessions. | |||
*An admission is a statement made to another civilian. It is generally admissible. | |||
*A confession is a statement made to a police officer (or person in authority), and there are very strict rules regarding the admission of such statements at trial. | |||
Anything the accused says to the police before or after the arrest is admissible as a confession ''only'' if the Crown first proves it was made voluntarily. See the Section X: Charter below for more information on confessions. | |||
e)Hearsay Evidence Hearsay is generally defined as an out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless the statement falls into one of the hearsay exceptions. The key factor in determining if a statement is inadmissible hearsay is its purpose.. The defining features of the Hearsay rule are: (a) the purpose of adducing the statement is to prove the truth of its contents and (b) the absence of contemporaneous opportunity to cross-examine the declarant. For example, if the witness on the stand states “the passenger said the light was red,” this is hearsay if: (a) the truth of the matter is to determine whether the light was red, and (b) the passenger who made this statement is not in-court and cannot be cross-examined. There are some traditional exceptions to the hearsay rule, through which such statements can be admissible. These include: 1.confessions; | |||