Module 11: The Courts and Trial Procedure Flashcards
1
Q
What is the role of the Defense Lawyer and Crown Attorney in a criminal trial?
A
- DL examines all the evidence collected by the police to assess the strength of the crown’s case against the accused
- DL aim is to ensure that the legal rights of the accused are protected, while the crown’s primary duty is to enforce the law and to maintain justice, represents the state’s case against the accused
- if the accused admits to the commission of the crime, then the defense lawyer can still contest the case by objecting to certain legal issues (ex. may challenge the form of the indictment, ex. try to change a felony to a misdemeanor, may challenge the sufficiency of the evidence, may challenge the mental condition of the accused at the time of the commission of the offense
- remember the purpose of a criminal trial is for the crown attorney to prove the guilt of the accused while maintaining the rights of the accused
2
Q
Explain: The Preliminary Hearing/Inquiry (who attends, what happens, purpose)
A
- purpose is to determine if there is enough evidence to proceed to a criminal trial, to prevent the accused from being put on trial unnecessarily
- attended by: defense lawyer, judge, crown attorney, the accused, the witnesses, BUT NOT the victim
- in the US this is called a ‘grand jury’
- the prosecutor may call any witnesses he/she wishes, doesn’t have to establish guilt/innocence
- the defense lawyer may decide to contest the evidence, to determine whether sufficient evidence exists to proceed to criminal trial
- in Canada, the accused has the right to waive/renounce the preliminary inquiry if he/she wishes, ex. if the accused has decided to plead guilty, if the accused hopes to avoid the negative publicity that might result from the preliminary hearing, if they are trying to speed up the CJS process and have a trial date as soon as possible
3
Q
Define/Explain: Plea-bargaining
A
- unofficial negotiation that takes place between crown attorney and defense lawyer
- who benefits from plea bargaining: the state and its agents, the accused
- factors that may influence the accused’s bargaining power: the prestige/experience of his/her attorney, the status (SES, job etc.) of the accused, publicity by the mass media
- in Canada, plea bargaining is unregulated by law and is therefore open to abuse, crown shopping is very common (where a defense lawyer can find an excuse to postpone the case and hope that a change of time will bring the accused a more approachable prosecutor the next time around)
4
Q
4 Reasons the Crown Might Withdraw a Charge
A
- Compassionate Reasons
- For Police Investigating Purposes
- the police in Canada may request the withdrawal of charges against police informers, prosecutors are usually reluctant to comply with such requests - The Complainant’s/Victim’s Request
- ex. in cases of sexual assault, attempted murder, family violence
- a victim’s withdrawal of a charge, must me requested in an open court, in front of a judge - Insufficient Evidence
- ex. witness problems (reluctance to stand witness at the trial), due process problems (when police officer fails to inform offender of his/her rights)
5
Q
What is insanity according to the criminal court of Canada? What rule is the insanity plea governed by?
A
- legal/psychiatric term implying a lack of responsibility for one’s criminal behaviour
- this plea is governed by the M’Nagten Rules
- established in 1843 when a man named David M’Nagten for killing the secretary of the Prime Minister of England, found not guilty on grounds of insanity, he had delusions of persecution/paranoia
- a plea of insanity is justified when the accused individual did not know the nature/quality of the criminal act
6
Q
Who are the people who lack responsibility in the commission of a crime?
A
- Traumatic Paranoia; ex. Members of racial/ethnic groups who have experienced persecution, this produces tensions which some individuals are unable to solve, paranoia which is situational, the individual may develop the tendency to imagine discrimination even when it is absent
- Psychotics; those who suffer from psychosis, a sharp break with reality, ex. Traumatic Psychosis, Paranoia, Schizophrenia
- Bipolar Depressive Disorder; characterized by despair and helplessness, feelings of worthlessness, frequent thoughts of suicide, distorted beliefs
- Obsessive Compulsive Disorders; an anxiety disorder characterized by persistent intrusions of unwanted thought or obsession, uncontrollable/irritable urges/impulses to engage in certain actions, they understand what they are doing and the harm it is doing to others but they are impaired in their power to resist the impulses and commit a criminal act
7
Q
Implications and criticisms of the insanity defense:
A
- the mental disorder/insanity defense, is not an easy way out of criminal prosecution in Canada, the offender can be convicted for a simpler offense or sent to a psychiatric institution and spend many of their years there instead of a jail
- many critics, have argued that many of the criminals and defense lawyers take advantage of the law we have around legal responsibility, it has been used as an excuse, to get the criminal off the hook
- inability of psychiatrists to predict/accurately diagnose dangerous behaviours
8
Q
Common Types of Personal Defenses to Criminal Charges:
A
- Intoxication
- voluntary intoxication prior to committing the crime; Canadian courts may allow a partial reduction defense, ex. having a murder charge reduced to manslaughter, which requires criminal negligence
- involuntary intoxication prior to committing the crime; being drugged by someone else, can be a defense provided you can prove the intoxication was involuntary - Automatism (unconsciousness)
- sleep walking
- 1992: supreme court applied this defense to free of blame a man who has killed his mother in law and wounded his father in law, very deep sleeper who has trouble waking up, only case so far - Pre-menstrual defenses
- Premenstrual Stress Syndrome; irritability, aggressiveness, etc.
- 1980: women killed her live in lover when he threatened to leave her, the jury let her go because she was experiencing premenstrual stress
- not yet an acceptable defense in Canada
9
Q
Common Types of Situational Defenses to Criminal Charges:
A
- Self-Defense Against Unprovoked Attack
- Section 34 of the criminal code of Canada
- everyone who is unlawfully assaulted without having provoked the assault, is justified in rebelling by force if the force he/she uses if not intended to caused death/bodily harm, and it not more than is needed to stop the attack/protect yourself from the unprovoked attack - Defense against forced entry to your home
- to protect family members
- especially if the intruder comes to your bedroom - Defense against personal property theft
- Section 38 of Criminal Code of Canada
- everyone who is in possession of personal property, is justified in preventing a trespasser from taking it, - The consent defense
- the accused person honestly believes that the complainant was consenting, ex. to sexual assault, but this defense has not been available as a defense - Duress (pressure to commit the criminal act)
- Section 17
- a person commits an offense under duress/threats of immediate death/bodily harm, if the person believes that the threats will be carried out
- this section does not apply to offenses of treason, murder, or attempted murder, sexual assault, assault causing bodily harm, hostage taking, robbery and terrorism - Battered women’s syndrome
- experienced by women who have experienced chronic, severe abuse at the hands of their abusive partners
- according to the supreme court of Canada, this is not a legal defense in itself, rather a psychiatric explanation of the mental state of the accused women, which is relevant for understanding their mental state at the time
- they tend to get shorter sentences, go on parole, when they kill a spouse in self-defense etc.
- mitigating circumstance which may justify a lighter sentence - Defense based on threats to the person’s self-image
- very common in spousal homicides, where the victim used humiliating remarks and actions against his/her spouse
- these provocations could reduce murder to manslaughter - Accidents
- ex. hunting accidents rarely result in convictions - Ignorance of the law
- ignorance by a person who commit an offense, is not an excuse for the defense lawyer
- you cannot claim that you commit offense because you were not aware of the law/defense, common for people from foreign countries
10
Q
Who is entitled to be tried by jury in Canada?
A
- a person who has committed an indictable offense, makes the choice, the maximum penalty for the offense must be imprisonment for 5 years or more
- the only court that can have jury trials is the provincial superior court
- in some indictable offenses the accused in NOT entitled to be tried by a jury, ex. theft under $5000, attempted theft, keeping a bawdy house (house of prostitution), illegal operation of a lottery, operating a vehicle while disqualified
11
Q
How are jurors selected?
A
- drawn from a list of random registered voters, citizens of Canada, members of the community
- certain members may be excluded from the list by law: first responders, law enforcement officers (police), lawyer or student of law, doctors, priests or clergy, those who have been convicted of criminal cases, non-citizens of Canada, criminologists, prejudiced individuals (ex. racists, sexists), those who have prior knowledge of the case, those with strong opinions on certain types of offenders, relatives of the accused, someone who has made up his or her mind about the case, the jurors fitness for jury service
- prosecutors and defense lawyers are entitled to challenge jurors with regards to their fitness for jury service on the grounds of mental illness, imbecility, age, race, social class (rich are less empathetic to the poor), gender (ex. rape cases women may be hostile)
- personality characteristics of jurors and accused are also important and should be considered in the selection of the jury
12
Q
The advantages and disadvantages of the jury system for the accused?
A
Advantages for the Accused
1. the jurors may have some sympathy with the accused
2. a good defense lawyer knows how to impress/sway the jurors, a good lawyer increases your chance of getting away with it
Disadvantages for the Accused
1. the jurors can be prejudiced against certain offenders, based on race, ethnicity, social background, physical attractiveness (they are treated more leniently by juries because they are seen as less dangerous and more capable of morality vs. unattractive seen as more likely to deviate in the future, but when the crime is attractiveness related, ex. swindling, prostitution, the attractive defendant will receive more severe penalties)
13
Q
Problems with Jury System
A
- jurors tend to forget evidence because they cannot take notes
- some evidence/witnesses might not be allowed to be present in court, the judge has the discretion to exclude relevant evidence if he/she chooses
- jurors are frequently overwhelmed by technical or complex evidence, ex. DNA, ballistics, fingerprints
- the defense lawyers when presenting the evidence have no obligation to the truth because of financial interests or other reasons, they just want to win the case
- defense lawyer may use superior forensic skills or tricks to influence the jurors’ emotions
- the jurors who might sympathize with the accused, or fall in love with them
14
Q
What are the 3 levels of courts in Canada?
A
- Provincial Court System
- Federal Court System
- Specialized Courts (Problem-Solving Courts)
15
Q
Define/Explain: The 3 courts in the Provincial Court System
A
- The Provincial Court
- family division court, hears family matters, has Ontario youth court which hears criminal cases of people between 12-17 years of age
- traffic division court, hears traffic cases
- small claims court, hears civil cases involving money under $25,000
- criminal division court: hears 90% of criminal cases, deals with summary conviction cases and 50% of indictable offenses, the judges are appointed by the provincial government and the judge alone hears the case - The Provincial Superior Court
- hears the most serious indictable offenses, such as murder, rape, robbery
- the cases may be heard by a judge alone or by a judge and a jury
- this is the only level of a court that may have a jury
- hears appeals from the provincial courts in relation to summary conviction offenses and civil cases involving money over $10,000
- judges of the superior court are appointed and paid by the federal government - The Appeals Court (Ontario Court of Appeals)
- highest court of appeals in the province, it is not a trial court, instead it may hear appeals from the superior court and in some instances from the provincial courts, ex. the family court
- hears also all indictable offence appeals, also hears appeals on summary conviction cases that have already been appealed to the superior court of appeals
- normally three judges sit on the appeals court, they are appointed by the federal government
