Criminal Law Process

We will see that our criminal justice system is a system that shows a profound distrust of laypersons. It is detached from the community & it mediated by professionals. There is no role for the victim & no reparation for the community.

So common law is born –and exists today- as a law created by judges and closely connected to trials, i.e., procedure. Adversarial process of adjudication: the judge is simply an arbiter. It is the parties through their lawyers that move forward the case.

Jury decides the facts and the judge the law.

Case and controversy: standing, ripe (not moot) and jurisdiction no political questions.

Juries: distrust. They can’t read. Everything has to be read. So, now whatever document they should analyze is mediated by the lawyers, as if they were still illiterate. And the whole evidence rules reflect also a profound mistrust of jurors. There are these sets of rules that have the objective of hiding things from jurors.

For example, whenever a lawyer objects, & if the judge sustains that objection, then the jurors are deprived from knowing about that question. This is so because the system doesn’t trust the jurors. It considers them incapable of understanding, of giving the right value to the question or piece of evidence objected to.

Main social actors are professionals who are detached from the community of the offender and victim.

Offender does not speak. The lawyer does it for him.

The victim has no role whatsoever other than as a witness.

The community has no participation.

The judges who are generally white, citizens, native speakers of English and from middle or upper classes have ample leeway to decide a case as they see fit. Usually they do it by reflecting their ideology.

So, you see, the main purpose of this class is to realize that our system is not perfect, that it is the result of 1000 years of history & that it was founded on a profound distrust of people. So it is detached from the whole community. It is placed in the hands of professional people with a high degree of distrust from the rest of the population.

Again, this was just an introduction, we will be devoting the next few classes to analyze the way criminal law is applied & understood in Canada & the USA, but when we do so, I want you to remember the underlying principle of mistrust & the fact that there are other alternatives, which we will also examine.

Anatomy of a criminal trial

The many rituals associated with modern trials have developed over centuries. North American’s common law heritage makes it possible to follow a largely uniform set of procedures. In summary form, assuming that the trial is carried out to completion, those procedures are as follows:

Judge or jury. The defense decides whether it wants the case tried by a judge or a jury (the prosecution can't require a jury trial). In Canada the Charter of Rights and Freedoms [section 11(f)] states that any person charged with an offence has the right to a jury trial if the possible penalty is 5 or more years of prison.

Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called “voir dire.” In contrast to the US, the judge has no authority to determine which of the prospective jurors are impartial. But he may excuse those who may not serve.

Jury selection begins with the random selection of a group of 48 or more residents from a judicial district (Jury Panel). These persons are sent a summons or notice to attend court. Under the supervision of a judge of the Court of Queen's Bench, a twelve member jury (required for each criminal trial) is selected from this panel. Two people from this list are selected who will listen to prospective jurors as they respond to question approved by the court. The triers must decide if the candidate is impartial. Once the candidate is deemed impartial he replaces one of the original triers and another prospective juror is then called forward and the process continues until another impartial juror is found.

The defence and the Crown have a limited number of times (20 for first degree murder, 12 for 5 years or more and 4 for all other cases) when they can challenge a prospective juror without explanation. This is called a peremptory challenge. As well, either Crown or the defence may object to any person if they believe that circumstances exist which would disqualify them. This is called a challenge for cause (rare in Canada). Such a challenge may be employed if either the Crown or the defence thinks a person holds some views on the matters to be presented at the trial which might influence their decision on the guilt or innocence of the accused.

Every Canadian citizen residing in the Province of Nova Scotia who has reached the age of eighteen years is qualified to serve as a juror. Exclusions: lawyers, judges, governor, legislator, criminal justice administrators and convicted offenders. judge may excuse from serving as a juror a person whom the judge determines is unable for any reason to

Opening statements. After a court employee reads the criminal charges to the jurors, the prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. The Crown has an obligation to aid the jury in arriving at the truth and cannot be biased or impartial in her opening statement.

Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses, including expert witnesses by the prosecutor. Types of evidence: witnesses, expert witnesses, real evidence, direct evidence and circumstantial evidence. Cross-examination. The defense may cross-examine the prosecution witnesses (leading questions are permitted). Redirect. The prosecution reexamines the defense witnesses

Prosecution rests. The prosecution finishes presenting its case.

Motion to dismiss. The defense makes a motion to dismiss charges. (Optional) Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss.

Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses (accused may choose not to testify). Cross-examination. The prosecutor cross-examines the defense witnesses. Redirect. The defense reexamines the defense witnesses.

Defense rests. The defense finishes presenting its case.

Closing arguments: Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict. Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it, and explaining why the jury should render a not guilty verdict--or at least a guilty verdict on a lesser charge. Section 651 determines who closes first. If defense presents evidence or the defendant testifies, then defense closes first.

The charge to the jury (instructions). The judge instructs or charges the jury about what law to apply to the case and how to carry out its duties. (Some judges "preinstruct" juries, reciting instructions before closing argument or even at the outset of trial.)

Jury deliberations. The jury (if it is a jury trial) deliberates and tries to reach a verdict. In Canada the verdict must always be unanimous. If the jury is deadlocked for a lengthy period the judge may make a final attempt for the jury to arrive at a verdict. If a reasonable attempt to reach a final verdict fails, a hung jury results. There is a mistrial. Then the prosecution may decide to retry the case with a new jury.

Sentencing. Assuming a conviction (a verdict of "guilty"), the judge sets sentencing for another day. The judge can request a pre-sentence report from a probation officer.

Appeals. Both the defense and the prosecution can appeal. One direct criminal appeal is warranted.