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J - SOC 327 Lecture (1/2) > Chapter 6: Criminal Procedure and Evidence > Flashcards

Chapter 6: Criminal Procedure and Evidence Flashcards

1
Q

What is the 2-stage process for prosecution analysis?

A

Evidential test and public interest test.

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2
Q

What is the evidential test?

A

Ask themselves if they have enough admissible evidence to win the case.

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3
Q

What is the public interest test?

A

Is it in the interest of the public to proceed?

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4
Q

What does the Crown consider in their public interest test?

A
  • Taking up of scarce and expensive resources.
  • Consider various mitigating factors, such as the showing of remorse.
  • Attitudes of the victim.
  • Society’s reaction to case.
  • Alternatives in the community.
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5
Q

What is disclosure?

A

Defendants are entitled to disclosure of the case against them.

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6
Q

What is the Stinchcombe Rule?

A

Accused persons have a Charter right to the disclosure of all relevant information that is gathered during the course of the investigation.

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7
Q

What does the Crown have to disclose?

A
  • Charges.

- Evidence (even if it is exculpatory).

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8
Q

What is exculpatory evidence?

A

Evidence released by the Crown that is good for the defendant.

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9
Q

What are some limits to the disclosure that the Crown must make?

A
  • Does not have to share information that is not applicable to the case.
  • Private information about victims.
  • Names of informants.
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10
Q

Does the defence have to disclose information to the Crown?

A

No.

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11
Q

What is the technical name for bail?

A

Judicial Interim Release.

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12
Q

What is unique about bail in Canada?

A

It is not fair to expect people to find the money, they do not have to give up money to get bail. However, if you do not show up in court, you may be required to forfeit a particular amount.

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13
Q

Those who are not released should be granted a bail hearing…

A

As soon as practical, preferably within 24 hours.

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14
Q

What are some reasons to deny bail?

A
  • Genuins risk of flight.
  • Represents danger to community.
  • Detention is necessary to maintain public confidence in the justice system.
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15
Q

If denied bail, accused is kept in ___.

A

Remand.

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16
Q

Increases in prison populations are largely due to ___, not due to the amount of people found guilty.

A

Remand.

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17
Q

When does reversed onus of proof occur?

A

In situations where the accused has allegedly committed a serious crime while on bail.

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18
Q

How are summary offences tried?

A

Only option is the accused is tried in a provincial court with a provincial court judge.

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19
Q

How are indictable offences (including hybrid cases) tried?

A

In less serious cases, provincial court. In more serious cases, superior court with a judge and jury. It is possible for both sides to waive the jury trial.

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20
Q

Give a reason why the accused may waive rights to a jury trial?

A

It may be a controversial issue that incites public sentiment.

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21
Q

What are electable offences?

A

Offences that permit the accused to choose their mode of trial. Charge is over 5 years.

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22
Q

The burden of proof rests on the ___.

A

Prosecution.

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23
Q

How can electable offences be heard?

A
  • A provincial court judge sitting alone.
  • A superior court judge sitting alone.
  • A superior court judge with jury.
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24
Q

What is a preliminary hearing/inquiry?

A

Refers to how in some indictable cases, a provincial court judge conducts a hearing to determine if there is enough evidence to proceed with the trial.

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25
Q

Who can waive the right to a preliminary hearing, and why would they do so?

A

The accused, because some defence lawyers believe it gives the Crown an opportunity to test their case.

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26
Q

What is an exception where the provincial attorney general can bypass preliminary inquiry?

A

Direct indictment.

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27
Q

What is plea bargaining?

A

The defence and the prosecution can negotiate a plea of guilty in exchange for some benefit (judge may refuse).

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28
Q

Are judges required to accept plea negotiations?

A

No.

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29
Q

What are some benefits that the Crown can offer in plea bargaining?

A
  • Try a hybrid offence as summary and not indictable.
  • Come up with sentence recommendation.
  • Not to present certain facts of case to court.
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30
Q

Is plea bargaining government by legislation?

A

No.

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31
Q

What is the one rule in plea bargaining?

A

Those entering a guilty plea must know what they are agreeing to.

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32
Q

Give an outline of the controversy surrounding plea bargaining.

A

On one hand it saves time and money, and our court system is not equipped to handle all cases going to trial. However, the power of the state makes plea bargaining better for the prosecution rather than the defence. Clients will plead guilty to lesser charges, even though the evidence may not lead to those charges. Could be acquitted but do not want to take the chance. Very few defence lawyers say that plea bargaining is beneficial for their clients.

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33
Q

What are 3 characteristics that juries must possess?

A
  1. Impartial.
  2. Competent.
  3. Representative.
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34
Q

What is the division of labour between the judges and juries?

A

Juries determine the facts of the case, and determine which version is true. The judges determine the applicable law, and then charges the jury.

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35
Q

What does it mean when the judge charges the jury?

A

The judge instructs the jury about the applicable law and how to interpret and apply the law.

36
Q

When juries are used, there must be a ___ verdict.

A

Unanimous.

37
Q

When there is a hung jury, it results in a ___.

A

Mistrial.

38
Q

What is a mistrial?

A

Not an acquittal, but an annulled trial.

39
Q

What is double jeopardy?

A

When a person is accused of the same crime twice.

40
Q

What is jury nullification?

A

When someone is clearly guilty, but juries will not convict the accused.

41
Q

Jury nullification acts as a check on the ___ system.

A

Justice.

42
Q

How does jury nullification act as a check on the justice system?

A

Can lead to the repeal of law, where the public no longer sees the law as valid.

43
Q

What are the two “you’ve got the wrong person” defences?

A
  1. Police screwed up and arrested the wrong person.

2. Complainant lied and there was no crime.

44
Q

What must be present in order to use a “you’ve got the wrong person” defence?

A

An alibi.

45
Q

Name the 5 excuse-based defences?

A
  1. Self defence/duress.
  2. Necessity.
  3. Consent of victim.
  4. Automatism.
  5. NCRMD.
46
Q

What is the self defence/duress excuse?

A

You feel like you have no choice.

47
Q

What is the necessity excuse?

A

You feel like you have to do it, and that need outweighed the law.

48
Q

Give an example of the necessity excuse.

A

Morgentaler was an abortion doctor, who felt that he needed to conduct abortions for his patients, and that this duty outweighed his duty to obey the law.

49
Q

What is the consent of victim excuse?

A

Someone said no but what they thought meant yes because of previous encounters.

50
Q

The consent of victim excuse led to the need for a ___ law.

A

“No means No.”

51
Q

What is the “No means No” law?

A

If someone expresses through words or conduct lack of want, then consent is not given, and is provisional (can be taken away).

52
Q

When is consent impossible?

A

When you are in positions of power over them, or when they are children.

53
Q

What is the automatism excuse?

A

Actions without conscious thought or intention– lack of mens rea.

54
Q

What is NCRMD?

A

Neither a finding of guilt nor a conviction of the defence. Not convicted because of the lack of mens rea.

55
Q

What are options available to courts in the cases of NCRMD?

A
  • Detention in hospital.
  • Absolute discharge.
  • Conditional discharge.
56
Q

What is discharge?

A

Person does not have a criminal record after a period of time because they were not convicted.

57
Q

What is the Battered Woman Syndrome?

A

In in of itself is not a legal defence, but is regarded as a psychiatric explanation of an abuse victim. Someone who has been conflicted with chronic abuse that has led to a sense of worthlessness, anxiety, low self-esteem, believes that their only escape is drastic measures, such as murder.

58
Q

What are the 3 procedural defences?

A
  1. Validity of the law.
  2. Validity of the prosecution.
  3. Admissibility of the evidence.
59
Q

Validity of the law defence is when…

A

Accused questions the law itself. People getting off on a technicality.

60
Q

Validity of the prosecution defence is when…

A

Accused alleges that the police or Crown acted unfairly during arrest or prosecution, such as entrapment or abuse of process.

61
Q

Admissibility of evidence defence is when…

A

Accused believes that too much evidence was excluded, and the case just falls apart.

62
Q

Who decides admissibility of evidence?

A

The judge.

63
Q

What are the 4 criteria that evidence must meet?

A
  1. Legally obtained.
  2. Relevant.
  3. Best evidence.
  4. Testable.
64
Q

How is admissibility determined?

A

Voir dire.

65
Q

What is voir dire?

A

A trial within a trial where the judge hears whether or not evidence should be used or not. The jury is excluded to prevent prejudice.

66
Q

What are the 4 purposes of evidence?

A
  1. Demonstrative.
  2. Illustrative.
  3. Direct.
  4. Circumstantial.
67
Q

What is demonstrative evidence?

A

Evidence that is not testimonial, and stands alone. For example, video evidence.

68
Q

What is illustrative evidence?

A

Evidence that shows rather than tells. Used by someone to show something. For example, maps or charts.

69
Q

What is direct evidence?

A

Evidence that supports a proposition directly. For example, fingerprints.

70
Q

What is circumstantial evidence?

A

Evidence that is used to tell the story of a case. Used to infer a conclusion. For example, someone hears a gunshot and they see someone running by with a gun.

71
Q

What are the 3 types of evidence?

A
  1. Real.
  2. Documentary.
  3. Testimonial.
72
Q

What is real evidence?

A

Tangible.

73
Q

What is documentary evidence?

A

Documenting something, such as medical records. Printed relevant information.

74
Q

What is testimonial evidence?

A

Oral evidence that is presented by a witness to the courts.

75
Q

Who can appeals be initiated by?

A

Either the prosecution or the defence.

76
Q

What are two things that can be appealed?

A

The verdict, or the sentence, or both.

77
Q

What does it mean when you say that there must be “grounds” for an appeal?

A

There has to be an argument that there was either an error in the interpretation or the application of the law, or a problem with how the facts of the case were interpreted.

78
Q

Where do most appeals come from?

A

The defence.

79
Q

Appellate courts are composed of ___ judges, who review the hearing of the lower court to ensure it was fair and in accordance with both legislative and common law.

A

3-5.

80
Q

What are the 5 options for appellate courts in the case of verdict appeals?

A
  1. Refuse to hear the appeal.
  2. Hear the appeal and dismiss it.
  3. Order that the case be re-tried.
  4. Overturn the conviction (acquittal).
  5. Substitute a conviction for a lesser but included offence.
81
Q

What are the 3 options for appellate courts in the case of sentence appeals?

A
  1. Increase the sentence.
  2. Decrease the sentence.
  3. Affirm the sentence.
82
Q

Who are federally appointed judges (superior court judges) accountable to?

A

The Canadian Judicial Council.

83
Q

Who are provincially appointed judges (provincial court judges) accountable to?

A

Local councils and provincial/territorial laws.

84
Q

What are some sanctions for judicial wrongdoing?

A

Reprimand, counselling, education, apology, leave of absence, or in very rare cases, removal from the bench.

85
Q

What is often the case when judges must be removed from the bench?

A

Instead of forcible removal, they are often given a chance to resign.

86
Q

What are some issues related to judicial accountability?

A
  • Judges are appointed for life. This helps keep them out of politics, but it becomes difficult to remove them.
  • Councils are comprised of judges and legal professionals which may result in impartiality– protect their own.
  • Intimidation likely prevents many complaints from coming forward.

J - SOC 327 Lecture (1/2) (5 decks)

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