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Criminal Law Presentation
Transcript of Criminal Law Presentation
court clerk reads the charge
the charge contained in the indictment must be read otherwise an acquittal may result
indictment: the formal written document charging an accused with a crime
the accused then pleads guilty or not guilty
if the accused refuses to plead, a non-guilty plea is automatically entered
the accused is first arraigned in his/her first court appearance, and re-arraigned for trials in higher courts Evidence given by a person who witnessed the event in question.It straight-forwardly shows that something is a fact without inference or presumption Direct Evidence Circumstantial Evidence Next, if the Judge agrees with the motion for a directed verdict and believes that the actus reus and mens rea have not been proven, he/she will proceed to tell the jury to declare the verdict of 'not guilty' If the judge rejects the motion for a Directed Verdict: >Defence presents witnesses as form of evidence the accused is presumed innocent until proven guilty. The onus (responsibility) is on the Crown to prove that the accused is not innocent. Exhibits may be physical evidence (i.e. weapons found at the scene of the crime) or paper evidence (i.e. a map of the crime scene drawn by a police officer). The Crown doesn't have to call obvious witnesses (i.e. the victim) if the information that person might provide can be presented in other ways. The Crown first presents an opening statement which summarizes its case against the accused, then the Crown calls for evidence such as witness testimonies and exhibits. Crown
Evidence In Canada If the Judge has not already ordered excluding all witnesses, the defence can ask to have the witnesses who have not yet testified removed from the courtroom Before the trial begins, the Crown gives the Defence a list of Crown Witnesses As each witness takes the stand, he or she must take an oath (swear to tell the truth) on a holy book or make an affirmation to tell the truth
After the examination-in-chief lawyers can ask leading questions during cross-examinations and re-examinations
the judge weighs the evidence and witness's credibility to decide what is more convincing Then... lawyers may ask witnesses questions to discover the character of the witness
the purpose of a trial is to find the truth and the process tests the truth of evidence
once the Crown calls all its witnesses, it rests its case Crown Evidence Process for Witnesses at a Trial The first questioning of the witness when called to the witness stand is called the examination-in-chief.
It is also known as the direct examination.
The same rules apply to both the examination and cross-examination.
Cross-examination is when a lawyer asks questions to a witness called by the opposing side.
Both the Crown and the defence can call witnesses to the witness stand.
Lawyers cannot ask witnesses any leading questions during the direct examination. *The Crown or the Defence may pay witnesses ONLY if they are expert witnesses whose special knowledge can help the court* *this is done to keep witnesses from changing their testimony* A witness is anyone who can understand the nature of the oath and the questions asked by the various parties (ex. A child, adult, etc.) What is a Witness? Most witnesses appear voluntarily, but if necessary, a subpoena may be presented for that witness’ court appearance Subpoena: a court document ordering a person to appear in court When presenting a case as a witness, the witness must be mentally competent If not, his or her evidence can be declared inadmissible (not accepted as valid; true) Possible Punishments for Ignoring a Subpoena a subpoenaed witness who refuses to appear to court can be served with an arrest warrant and detained for 30 days (to be kept or hold in as if in custody) if a judge finds it justified for that subpoenaed witness to be detained, the witness can be detained for up to 90 days (possibly 3 months) any witness who fails to attend a trial to give evidence may be found guilty of contempt of court and fined or imprisoned for 90 days Perjury If a witness who knowingly (purposely) gives false evidence with the intent to mislead the court, commits the criminal offence of perjury It is also an offence for a witness to give contradictory (inconsistent) evidence *the MAX. PENALTY for both offences is 14 years of imprisonment* Perjury: the act of knowingly giving false evidence in a judicial proceeding Child Witnesses When children are witnesses, they MUST understand the nature of an oath or an affirmation -> if the child does not understand this, he or she can give unsworn evidence, causing the evidence to be admissible The judge should also indicate to the charge of the jury the admissibility of such evidence (ex. sexual content, weapons listed as evidence, etc.) -> This is done so because the child may be frightened, so the judge may allow the jury to give evidence from behind a screen and on a videotape (for certain sexual offences, in some cases) Accused on the Witness Stand The accused does not have to take the witness stand If the accused has an inappropriate attitude or appearance, it may be to his or her best interest not to do so (this may also be true if the Crown’s cross examination asks the accused questions that could lead to conviction) An accused can discuss with his or her lawyer the benefits and drawbacks of taking the stand (if the accused doesn’t take the stand, it isn’t a factor in determining whether the Crown has proved its case) Evidence will often be contradictory but it doesn’t mean that witnesses are lying (people see things differently and well memories fade) Besides credibility, the weight that should be given to evidence is significant It is up to the jury or the judge to decide on the credibility of a witness and the weight his or her evidence deserves Credibility for a Witness The most important part of witness' testimony is its credibility Witnesses are often asked repeatedly to recall things that they heard or saw (this is done to see if their answers are the same as before in earlier accounts) Questions a Judge or Juror should ask of Evidence 1. Does the witness have an interest in the outcome of the case? (Yes or No)
2. Has the witness been influenced about the case since the offence occurred? (Yes or No)
3.Do other witnesses support the witness' evidence? (Yes or No)
4. Does the witness' testimony conflict with evidence he or she has given earlier? (Yes or No) Examples of Leading Questions A leading question is a question with a "yes" or "no" response.
Some examples are:
"Did you see the accused driving a yellow car through the red light at 1:45 a.m.?"
"Did you see Alexander at midnight?"
Proper non-leading questions to ask are:
"What happened at the intersection at the time in question?"
"At what time did you see Alexander?" Before all other actions, the defence makes a motion for a directed verdict
Directed Verdict: When a judge withdraws a case from the jury and finds the accused not guilty because the Crown has not proven its case > Case continues
>Defence presents case: Purpose is to raise reasonable doubt concerning whether accused committed offence or not
> Not necessary for defence to prove innocence of the accused >Roles become reversed:
-Defence is prohibited from asking
leading questions (during direct examination of witnesses)
-If Defence brings up another matter that was not previously addressed by the Crown, the Crown is allowed to
present evidence in response
-Defence proceeds to
present surrebuttal Steps in Presenting Evidence 1. The crown begins with examination-in-chief of witness.
2.Witness may be cross-examined by the defence
3. Crown may re-examine the witness.
4. If judge allows, defence can re-cross-examine.
5. Defence presents evidence. Presenting Evidence (Continued) 6. Crown can cross-examine the witness
7. Defence can re-examine the witness
8. Crown may may make a rebuttal
9. Defence may make a surrebuttal If the direct evidence that is used in a trial is true, the charge against the accused is established. However it is not the most reliable evidence The witness might not recall what they saw with complete accuracy, how long did the event happened and memory may change over time will effect their ability to supply relevant and reliable information. Evidence that relates only indirectly to the alleged offense, it does not expressly prove that the person on trial is guilty of the crime. Rather, it infers that the person is guilty. This type of evidence is an important part of any criminal trial, and both sides in a trial will generally try to find some to support themselves. There are two types of evidence that can be used during court proceedings: direct evidence and circumstantial evidence. Most criminals are careful not to generate any direct evidence while they are committing a crime. Because of this, courts often depend on circumstantial evidence to determine the facts of the case. Circumstantial evidence often has an advantage over direct evidence because it is more difficult to suppress or fabricate. Direct Evidence