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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Each exception has its own requirements that must be met. However, there are two basic tests underlying all of them: necessity, and the circumstantial probability of trustworthiness. In addition to the traditional common law exceptions, the Courts have developed the "principled approach" to determining the admissibility of hearsay. See ''R v Starr'', [2000] 2 SCR 144. This approach, too, looks at necessity and reliability. These two requirements must be met before allowing hearsay evidence to be admitted: | Each exception has its own requirements that must be met. However, there are two basic tests underlying all of them: necessity, and the circumstantial probability of trustworthiness. In addition to the traditional common law exceptions, the Courts have developed the "principled approach" to determining the admissibility of hearsay. See ''R v Starr'', [2000] 2 SCR 144. This approach, too, looks at necessity and reliability. These two requirements must be met before allowing hearsay evidence to be admitted: | ||
#Necessity: whether the benefit of the evidence would be lost in its entirety if it is not entered (i.e. the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value). #Reliability: this test is essentially the judicial determination of what would have been gained by cross-examination. In some cases, the circumstances in which the statement was made suggest its trustworthiness and reduce the danger of admitting evidence without an opportunity for cross-examination. | |||
For a thorough discussion of the rules of hearsay admissibility, see ''Watt’s Manual of Criminal Evidence'' and ''R v Khelawon'', [2006] 2 SCR 787. | |||
==== f) Leading a witness ==== | |||
Counsel is generally not permitted to lead its own witness (i.e. suggest answers), with the exception of preliminary matters such as the witness’s identity, residence, age, and other matters that are not at issue, and that merely help to set the stage. In any case, testimony that is adduced from leading questions tends to be afforded less weight, as the words have come from the mouth of someone other than the witness. '''Leading questions are proper and encouraged for cross-examination'''. | |||
==== g) Opinion evidence ==== | |||
Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert opinion evidence is generally not permitted. Expert evidence is not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a ''Voir Dire'' (a trial within a trial). For a more complete explanation of the law on opinion evidence, see ''R v Mohan'' [1994] 2 SCR 9. | |||
Section s 657.3(3), of the ''Criminal Code'' imposes an obligation on the defence to disclose any opinion evidence it intends to call prior to trial. ''R v Stone'', [1999] 2 SCR 290 sets out the guidelines which apply to both Crown and defence in disclosing expert opinion evidence. | |||
=== 10. Conclusion of the trial === | |||
==== a) Closing argument and submissions ==== | |||
Defence counsel and the Crown will make closing arguments that recap their view of the facts and the pertinent law. The judge or jury may then retire to consider a verdict. If the defence has called evidence, it must make submissions first. Often a case will be decided based on the credibility of the witnesses. If the client takes the stand then the case is likely to be a credibility issue, with rules as described in ''R vW(D)'', above. | |||
==== b) Verdict ==== | |||
If the Crown is able to prove each element of any of the offences charged beyond a reasonable doubt, there will be a guilty verdict. An accused can only be convicted of an offence that is on the Information; however, the accused may also be convicted of: | |||
*All, some, or one of the offences charged, | |||
*A lesser included offence of an offence charged, and | |||
*An attempt of an offence charged. | |||
Crown can amend the Information to include new charges up until the close of Crown's case. Once the defence's case is called, no new charges can be added and applications to amend the Information will usually be denied. | |||
==== c) Sentencing ==== | |||
The judge will sentence the accused after a conviction or guilty plea. However, the judge will ask for submissions on sentencing from both sides regarding the offence and the offender. Counsel should be prepared to address sentencing immediately following a trial. This is briefer than sentencing submissions for a guilty plea. Alternatively, the Crown or defence may adjourn the matter for sentencing on application. But such an application will be granted only if there are valid reasons for counsel to ask for more time to prepare or if a pre-sentence report is requested. | |||
Judges have broad discretion in imposing most sentences – depending on the specific offence, whether it is provincial or federal, and whether it is summary or indictable. See Section VII: Resolving the Matter Prior to Trial, above, for more information on types of sentences a judge can order. | |||