The Criminal Trial Process

Each person charged with a crime is considered innocent until proven guilty. The burden of proof to prove the guilt of the accused rests with the Crown. The trial begins with the judge explaining the jury’s role as the trier of facts, the judge asks the jury to select a foreperson from among themselves and the trial begins.

The Crown Opening Statement The trial begins with the Crown’s opening statement, which identifies the offence committed, summarizes the evidence against the accused, and outlines how the Crown will present its case. Most of the evidence in a criminal trial is presented through witnesses.

Examination of Witnesses The first examination of a witness is called a direct examination or an examination-in-chief. The Crown conducts a direct examination during which a witness tells that he or she observed about the crime. The defence counsel can then conduct a cross-examination to test the accuracy of the witness’s testimony.

The Defence Responds After the Crown’s witnesses have been called, the defence may bring a motion for dismissal if the defence believes that the Crown has failed to prove guilt beyond a reasonable doubt. The judge may then withdraw the case from the jury and enter a directed verdict of not guilty. If the judge does not dismiss the trial, the defence goes on to summarize its case in an opening statement and call witnesses to refute the Crown’s case.

The Defence Responds Cont Defence witnesses are then cross-examined by the Crown. The defendant may choose to testify on their own behalf, but cannot be compelled to be a witness. After the defence presents all their evidence, the crown has the opportunity to rebut or contradict any new evidence the defence has presented. Defence counsel can then further evidence for a surrebuttal, a contradiction of the crown’s rebuttal.  

Rules of Evidence During the presentation of the evidence, both side may object to questions asked to witnesses or to answers from the witnesses. The judge then rules on whether the evidence or question is admissible and will be accepted by the court. The following are some of the most common grounds for objection:

Leading Question Leading questions that suggest a particular answer to the witness i.e. Wasn’t it Tom you saw holding the knife and stabbing Al? Hearsay Statements Comments that the witness heard from a third party. I.e. if a witness said, Anne told me she saw tom stab Al.

Opinion Statements The crown cannot ask a witness to give an opinion about a matter that goes beyond common knowledge unless the witness is a recognized expert in the field  Immaterial or Irrelevant Questions These are questions which have no connection with the matter at hand. Non-Responsive Answers If the witness does not reply to the question or their response doesn’t answer the question, It is non-responsive and the counsel may ask judge to direct the witness to answer the question properly.

Types of Evidence All evidence must be material (important, relevant) to the case. It is considered relevant if it tends to make more or less probable a certain fact pertaining to the guilt or innocence of the accused.

Direct Evidence Direct evidence is the testimony, such as an eyewitness account, given by a witness to prove an alleged fact. It is the most common type of evidence given at a trial.

Circumstantial Evidence If there is no one to provide eyewitness testimony, the offence may be proven by circumstantial evidence. This type of evidence is admissible in court if the judge is convinced that the defendant's guilt is one of the conclusions that could be drawn from the evidence. No one saw sue kill Tom; however her purse was found near the crime scene with a knife, covered in the victim’s blood and Sue’s finger prints all over it.

Character Evidence Character evidence establishes the likelihood that the defendant is the type of person who either would or would not commit a certain offence. Hence, the Crown may introduce evidence of the defendant’s past criminal convictions; however, so the crown doesn’t sway the jury, they are not allowed to introduce evidence of the defendant’s bad character. The defence may introduce evidence of the defendant’s good character, which then opens the door for the crown to rebut it by presenting contradictory evidence.

Electric Surveillance Evidence from electric surveillance such as wiretapping (telephone communications) or bugging (recording of a speaker’s oral communications) may be introduced. Collection of this evidence can only be admissible in court if it is authorized beforehand by a judge.

Polygraph Polygraph or “lie detector” tests can take up to 2 – 3 hours to administer. They measure the change in pulse, respiration and blood pressure while the examiner asks a set of controlled questions to begin and then questions about the criminal charges in question. The results of a polygraph test are not admissible in court. However, the Crown may introduce as evidence anything the defendant says during the course of the examination.

Voir Dire A Voir dire is a mini-trial within a trial in which jurors are excluded while the admissibility of evidence is discussed. One of the most common reasons for a Voir dire in our courts today is to determine whether a defendant’s confession was given voluntarily to police. Under Section 11 of the Charter of Rights and Freedoms, an accused person “cannot be compelled to be a witness” at their own trial.

Summary of the Case Closing Arguments are a summary of the case. These are not considered evidence, but are intended to help the jurors better understand the issues involved. It is important to note the order of summarizing a case after both sides have concluded their case in court: - If the defence called witnesses during the trial, the defence goes first followed by the Crown. - If the defence did not call any witnesses during the trial, the Crown goes first followed by the defence.

Charge to the Jury After all summaries are finished, a judge makes his/her charge to the jury - an explanation to the jurors of how the law applies to the case before them. The judge also advises the jurors on how to consider the evidence and how to return a verdict in accordance with the law. Judges must be very careful in making their charge to the jury. If there are errors in their charge, it opens up the possibility of an appeal of the verdict.....the most common reason for appeals in Canada

The Verdict Once a verdict has been reached by the jury, they return to the courtroom where it is read in open court. Both the Crown and defence have the right to ask that the jury be polled - jury stands and indicate if they agree with the verdict. Their decision must be unanimous, otherwise it becomes a hung jury.

Appeals The right to appeal a verdict is part of our criminal system in Canada. - A notice to appeal must be filed within 30 days from the date the verdict was reached. An appeal goes to an appeals court with 3 possible outcomes: to affirm the lower court’s decision to reverse the lower court’s decision to order a new trial

Appeals cont… In an appeal, witnesses do not testify again. Lawyers for both sides use the trial transcript, exhibits from the trial, and legal arguments in their appeal. The appeal court’s verdict is a majority decision. I.e. 2 - 1 decision)