1

Trial Procedures

•  court players

•  trial format

•  exploring the notion of “proof” and the “burden of proof”

•  types of witnesses

•  examination of witnesses

•  direct examination

•  cross examination

•  the verdict

•  extra points to note

The Trial!

Judge: Decides what evidence will be presented, rules on matters of law, instructs jury, and determines the sentence for those accused who are convicted. In a non-jury trial the judge is also the trier-of-fact.

Crown Attorney: A lawyer who represents, and is responsible to, the state. Crown Attorneys are prosecutors; they argue against the defence. The burden to prove guilt is entirely upon the Crown.

Defence Attorney: A lawyer who is responsible for protecting the rights of the accused. As the accused is presumed innocent until proven guilty, the defence attorney is not required to prove innocence. Rather, the defence counsel simply attempts to refute the Crown's evidence and discredit its witnesses.

Court Players

Jury: Random members of the public, selected for duty. Must decide on issues of fact. Must deliver the ultimate finding of fact: a verdict of “guilty” or “not guilty.”

Trier of fact: The authority at a trial who decides what the truth is. If there is a jury, it is the trier of fact. If there is no jury, the judge is the trier of fact. The trier of fact makes “findings of fact” in a trial.

Findings of fact: Determining what evidence and testimony are believable (that is, are facts) and which are not.

Trier of Law: Even in a jury trial, the judge is always the "trier of law;" this is the person who makes rulings about how the law applies to the facts.

Findings of law: A determination regarding how a specific statute (ie. Criminal Code, Young Offenders Act, Canada Evidence Act, etc.) or case law should be applied to a trial, either in process, or at sentencing.

Crown calls its witness(es):

Trial: Format

•  examination-in-chief (Crown)

•  cross examination (defence)

•  re-examination (Crown)

•  re-cross examination (defence)

Defence calls its witness(es):

Opening Statement(s): •  Crown •  defence (now, or after the Crown’s case)

•  examination-in-chief (defence)

•  cross examination (Crown)

•  re-examination (defence)

•  re-cross examination (Crown)

Closing Arguments: •  Crown •  defence

Deliberation: •  jury, or •  judge

Verdict: •  jury, or •  judge

Note: If the defence provided no witnesses, it will present its closing statement last. If the defence did provide witnesses, then the Crown will present its closing statement last.

"A proof is a proof. What kind of a proof? It's a proof. A proof is a proof. And when you have a good proof, it's because it's proven."

Jean Chretien

“Proving” a case…

2

A surgeon, an architect an a lawyer are having a heated discussion concerning which of their professions is actually the oldest profession.

Law Joke of the Day!!!

The surgeon says: "Surgery IS the oldest profession. God took a rib from Adam to create Eve and you can't go back further than that.“

The architect says: "Hold on! In fact, God was the first architect when he created the world out of chaos in 7 days, and you can't go back any further than THAT!“

The lawyer puffs his cigar and says: "Gentlemen, Gentlemen...who do you think created the CHAOS??!!"

Evidence: That which demonstrates, makes clear or ascertains the truth of the very fact or point at issue, either on one side or the other.

Note: All evidence, whether it is “real” evidence (an object that can be deposited with the court) or testimony, must be presented to the court by a witness.

Proof: Refers to the quality and quantity of evidence that establishes a fact about an issue.

“Proving” a case…

Prove: To persuade a trier of fact to believe a fact about an issue.

Corroborating Evidence: Evidence that confirms or strengthens evidence already presented to the court.

The Burden of Proof The Theoretical “Proof-o-Meter” As is demonstrated by the meter, there are different degrees of “burden” in criminal cases and civil cases.

In Canada, the Charter guarantees us all the right to be presumed innocent until proven guilty. Thus, in criminal cases, the Crown must prove their case "beyond any reasonable doubt." If this were a game of Tug-of-War, then we could say the Crown must pull the knot in the middle of the rope past a certain point far on their own side before they can win. That point is “beyond a reasonable doubt.”

In a civil case, the plaintiff must present a case that is just slightly more persuasive than the defendant's. If we were to compare this burden of proof to a game of Tug-of-War, then we could say that whoever pulls the knot in the middle of the rope more to their side will win. This is referred to as “a balance of probabilities.” The proof illustrated by the arrow in the above example would be enough to win a civil

case, but it would fall shy of the mark required to win a criminal case.

Material Witness: Someone who has knowledge of an event, or may have seen/heard what happened. Witness is under an oath to tell the truth. For the most part, witnesses can only testify about what she/he perceived with his/her own senses (i.e. seen and/or heard). The witness cannot give evidence about what someone else might have seen / heard (i.e. hearsay).

Witnesses

•  Eye Witness: A specific type of material witness; someone who actually observed the crime take place.

Hearsay: Giving evidence about what someone else has seen / heard. It is generally not allowed, because facts that are to be taken as evidence must come from the people who initially observed these facts. These people then swear an oath to speak the truth in court. In addition, the people who originally observed facts can be cross examined, whereas it would be difficult to cross examine a witness who does not have direct knowledge of the facts which they are relaying.

•  statements made by the accused;

Exceptions are permitted when the hearsay testimony applies to:

•  statements made by someone who is deceased;

•  establishing that the statement was made, but not to establish the truth of the statement.

Sidebar…

See cross exam at 2:20

Expert Witness: A person whom the court considers to have sufficient expertise in their field that she/he can testify about more than what she/he has seen or heard. She/he can tell the court what conclusions she/he reaches as a result of certain facts and she/he can give her/his opinions about the facts. Only expert witnesses can testify about their opinions.

Examples:

sexual assault counselor à effects of sexual assault; pathologist à interpretation of autopsy results

ballistics expert à type of gun used based on other physical evidence

Note: Material witnesses can give “opinions” about their observations. i.e. Did your friend appear to be angry? cross exam at 3:20

3

Comparative examples of three types of witnesses…

•  clerk who sells the accused a gun à material witness

•  friend who sees accused shoot victim à eye witness (a specific type of material witness)

•  ballistics expert who analyzes slug à expert witness

Examination-in-chief: The questioning of a witness by the lawyer who called her/him as a witness. The purpose of examination is to provide evidence in support of this party’s case.

Questioning of Witnesses

Leading Questions: Questions phrased so as to indicate an answer.

Traditional Acid Test: If the answer can be “yes” or “no” it is likely a leading question. (This test is not always accurate.)

•  lawyer cannot ask “leading questions”

Purpose: All information must be presented to the jury through evidence (ie. witnesses) – not attorneys!

•  questions must be relevant to the case

Cross-Examination: The questioning of a witness by the opposing attorney (the attorney who did not call her/him as a witness). This happens after the examination-in-chief. The purpose of cross-examination is to suggest other possible interpretations of their evidence or discredit of the witness him/herself.

•  lawyer can, and should, ask “leading questions”

•  questions need not be relevant to the case itself, as they may serve solely to establish the credibility (or lack thereof) of the witness.

During an examination-in-chief, a lawyer is not allowed to ask leading questions of their own witness.

Hostile Witness

If a lawyer’s own witness openly shows hostility against the interests (or the person) that the lawyer represents, the lawyer may ask the court to declare the witness "hostile", after which the lawyer may ask leading questions of this witness.

The Secret to Successful Cross-Examination

The Rule in Browne v. Dunn (1893) Browne v. Dunn (1893) established that if an attorney plans to suggest within his/her closing argument that a given witness lied (regarding a certain point) in his/her testimony, then that attorney MUST “put it” (i.e. suggest) to the witness that he/she is lying DURING the actual examination. This rule serves two purposes: i)  it gives the witness the opportunity to rebuke the accusation, ii)  it gives the judge the opportunity to assess the witness’ credibility on the point in question.

Note: A lawyer cannot simply say, “May I suggest you are lying?” Rather, the lawyer must put other questions to the witness that would ask the witness to explain apparent contradictions in his/her testimony. For example, “Are you suggesting that you were in the garage for between ten and fifteen minutes, and you at no point took note of the fact that an SUV was in the garage?”

F. Lee Bailey Cross Examining a Witness

Micro Trial

4

Micro Trial 1.  Direct on Detective Inspector Jamie Taggart

2.  Cross on Detective Inspector Jamie Taggart

3.  Direct on Raine Lynde (neighbour)

4.  Cross on Raine Lynde (neighbour)

5.  Direct on Bobbie Bann (accused)

6.  Cross on Bobbie Bann (accused)

7.  Direct on Avery Starr (roommate)

8.  Cross on Avery Starr (roommate)

Stay (of proceedings): This can be a motion entered by the Crown, or an order made by a judge. This decision suspends the present proceedings. The accused is free to go, but the charge has not been dropped or withdrawn. The Crown can start the proceedings again within one year if certain events occur (for example, new evidence is found). Quash: An order of the court to stop the prosecution permanently. Usually due to lack of evidence, or a finding that the Crown has committed a gross violation of procedural law. Acquittal: A decision of the court wherein the accused is found not guilty of the charges against him. Thus, the accused is free to go. Conviction: A decision of the court wherein the accused is found guilty of the charges against him. Thus, the accused is remanded into custody to await sentencing. Hung Jury: Occurs when a jury cannot make a unanimous decision on the verdict. A new trial must then take place.

Trial Outcomes

The trier of fact must reach a verdict of “guilty” or “not guilty” based on the facts of the case. The jury is instructed by the judge (in the “charge to the jury”) that they must return a verdict of “not guilty” if they find there is any reasonable doubt.

Reaching the Verdict

Reasonable doubt: Refers to the level of certainty that the judge or jury needs to have before finding an individual guilty. The judge or jury must be satisfied that no reasonable person would doubt that this person is guilty.

The decision of the jury must be unanimous.

A judge can “set aside” the verdict of the jury if they perceive the verdict to represent a gross miscarriage of justice.

Extra Points to Note

Justice of the Peace: This is a judge that is appointed by the provincial Lieutenant-Governor. A Justice of the Peace is assigned to do limited duties, such as issuing warrants, performing civil marriages, presiding over traffic court, granting bail, etc. Referred to as “Your Worship,” and they wear a green (not red) sash. Voir Dire: A trial within a trial, held to determine whether evidence can be admitted. In a jury trial, the jury will be excused while both sides argue the matter.

Private Prosecution: A rare procedure wherein a private individual begins prosecution. This might happen if the police decline to lay a charge. If the victim (or someone else affected by what has happened) believes a charge should be laid, then that person can hire a lawyer to pursue a prosecution privately. A private prosecutor must satisfy a judge that the case is worthy of prosecution. If the judge accepts the case, it is then handed to the Crown Attorney's office.