Chapters 9 and 10 Flashcards
What is the adversarial approach?
When the state is in contest against the accused. The prosecution and the defence council have the primary responsibility for defining and issues in dispute and for carrying the dispute forward through the system. The role of the judge is primarily that of an impartial referee between the prosecution and the defence. Its a win/lose situation
Explain the inquisitorial approach
Used in some civil law systems where a judge investigates the case and determines the guilt or innocence of the defendant.
What are the two principles of the adversarial approach?
Party autonomy: parties have the right to pursue or dispose of their legal rights and remedies as they wish
Party prosecution: the parties have the primary responsibility to choose without interference from the judge, the manner in which they will go forward with their case and the evidence they will present for the judge’s consideration in adjudicating the dispute.
What is the significance and importance of the Supreme Court?
Highest appeal court. Leave of appeal cases are selected by legal importance. As-of-right appeal cases are heard because of dissent over question of law or overturning of decision.
What are the two ways that the Supreme Court creates criminal justice policy?
- Judicial review: decide constitutionally of law or policy.
- Role as law interpreter: Interpretation of laws pertaining to specific situations.
What is the role of the defence lawyer?
Representing legal rights of accused at all stages of criminal trial process. Assesses the validity and reliability of evidence disclosed by prosecution, negotiates plea bargain in best interest of client.
Role of crown prosecutor
Primary duty to enforce the law and maintain justice, present all relevant evidence of the legal guilt of the accused, under pressure to have a high conviction rate, so encourages guilty pleas while maintaining credibility as a prosecutor.
What is the role of the judge?
Officer of the government who is in charge of a court of law, upholds rights of the accused, arbitrates disagreements between Crown and defence, decides guilt or innocence of accused, and determines the type and length of the sentence. Must remain independent and impartial.
Explain the right to a fair criminal trial
The point is for the prosecution to prove, according to law, the guilt of the accused. Specific legal rights are found in the charter. Burden of proof lies with the state. Must prove legal guilt, not just factual, beyond reasonable doubt.
Which section of the Charter guarantees presumption of innocence?
Section 11(d): “Everyone has the right to be presumed innocent until proven guilty according to law
Publication Bans
Judges have discretion to order a publication ban, to limit the ability of public and media access and to publish information about a criminal case.
What are the specific reasons for a publication ban?
- public disclosure of information can prejudice the public against the accused, and bias potential jurors
- Protect identity of complaint or witnesses
- protect police officers and methods in undercover work. Risk of publication must be “well-grounded in evidence.”
What is the order of events in a criminal trial?
- Opening statement
- Trial Evidence (prosecution, then defence)
- Closing arguments
- Charge to jury, verdict, appeal
Explain opening statements
prosecution goes before defence, presents evidence, typically includes criminal charges, facts of the case, and evidence to be presented.
Defense counsel typically includes why the accused is not legally guilty, the inadequacies of the prosecutions case
Explain trial evidence
Witness testimony, real evidence ( fingerprints/weapons/clothing), direct evidence (eyewitness observations) and circumstantial evidence (fact from which guilt or innocence is inferred)
