Ch. 6 - Criminal Procedure and Evidence Flashcards
What is included in the prosecution’s analysis?
Evidential test and public interest test.
What is an evidential test?
Is there sufficient admissible evidence to result in a conviction?
What is the public interest test?
Is it in the public interest to prosecute?
What did the Stinchcombe Rule (1991) introduce?
The defendant’s right to disclosure of the case against them.
What must the crown prosecutor disclose?
Details of the case, charges, and the evidence.
Does the defence have to disclose anything?
No.
What is the formal term for bail?
Judicial interim release.
With regards to bail, what does the Charter provide rights to?
Right to not be denied reasonable bail and to not be denied bail without just cause.
If you are denied bail, what state are you in?
Pretrial detention.
When would someone be denied bail?
If they are a flight risk, danger to the community, or if pretrial detention is necessary to instil confidence.
Release may be on the basis of…?
An undertaking or recognizance.
What is an undertaking with regards to release?
A requirement that they must appear.
What is recognizance with regard to release?
If they fail to show up, they or someone they know would have to pay a fee.
What is the trial procedure for summary offences?
The accused appears before a provincial court judge. The judge sits alone.
What is the trial procedure for less serious indictable offences?
The accused is tried in provincial court in front of a judge sitting alone.
What is the trial procedure for more serious indictable offences?
The accused is tried in superior court with a jury, unless both the accused and the provincial attorney general agree to waive the right to a jury trial.
What are the choices for electable offences?
Trial by provincial court judge, trial by superior court judge alone, trial by superior court judge and jury.
What is the minimum sentence length required to have the right to trial by jury?
5 years.
Which side does the burden of proof lie with?
The prosecution. They must prove guilt beyond a reasonable doubt.
What is a preliminary hearing/inquiry?
A hearing/inquiry conducted by a provincial court judge before cases are forwarded to superior court for trial. They determine whether there is sufficient evidence to proceed with trial.
What is a plea bargain?
A plea of guilty in exchange for some benefit.
What is the benefit of plea bargains?
Saves the system time and money.
What is an argument against plea bargains?
They’re almost entirely in the favour of the prosecution.
What are juries used for?
To determine the facts of the case.
In a trial by jury and judge, who determines guilt?
Judge.
What does a hung jury result in?
A mistrial.
What is double jeopardy?
Ensures that one cannot be tried again for an offence for which there was a previous conviction of acquittal.
What is jury nullification?
When a jury disregards the applicable laws and “nullifies” them.
What are the three main types of defences?
- “You’ve got the wrong person”
- Excuse based
- Procedural
What are some examples of excuse-based defences?
Self-defence, duress, necessity, consent of victim, automatism, NCRMD, battered woman’s syndrome.
What is automatism?
Actions without conscious thought or intention (no mens rea).
What are examples of procedural defences?
Validity of law, validity of prosecution, admissibility of evidence.
Evidence must be… (4 things)
Legally obtained, relevant, the best evidence, testable.
What makes evidence relevant?
Must make one version of the case more or less likely.
What is admissibility determined by?
Voir dire.
What is voir dire?
A trial within the trial where the judge hears whether or not the evidence should be used or not.
What are the 4 purposes of evidence?
Demonstrative, illustrative, direct, circumstantial.
What is demonstrative evidence?
Used to show rather than tell; non-testimonial evidence.
What is illustrative evidence?
Used by someone to show something; e.g., maps, charts, reenactments, accident reconstructions.
What is direct evidence?
Used to tell the story of the case; supporting a proposition directly.
What is circumstantial evidence?
Used to infer a conclusion; can’t stand on its own but can be used to support.
What are the 3 types of evidence?
Real, documentary, testimonial.
Who can initiate an appeal?
Either the prosecution or the defence.
What are the options for an appellate court when cases are presented?
Refuse to hear the appeal, hear the appeal and dismiss it, order a retrial, overturn the conviction, substitute a conviction for a lesser offence.
Who are federally appointed judges accountable to?
The Canadian Judicial Council
Who are provincially appointed judges accountable to?
Local councils.
What are the sanctions for judicial wrongdoing?
Reprimand, counselling, education, apology, leave of absence, removal from the bench.
What are some issues with judicial accountability?
Judges are appointed for life, councils are comprised of other judges, intimidation likely prevents many complainants from going forward.
