LAW 5

Question 1

What does a court recorder do?

Answer 1

records word for word, the evidence given, and all questions and comments made during the trial. Important so transcripts. And be made and referred to again.

Question 2

What does the crown prosecutor do?

Answer 2

has the responsibility of presening all evidence in the interest of justice, this could include the bringing up of evidence that could hurt the courts case. Advise police regarding charge laid and withdraw charges.

Question 3

Who appoints judges to the various levels of court?

Answer 3

The federal government

Question 4

Adversary system?

Answer 4

Canada’s trial procedure is known as the adversary system because it involved two opposing sides: the crown with the onus and the defence

Question 5

What does the court clerk do?

Answer 5

handles much of the paper work and routine tasks of the court. They also read charges against accused.

Question 6

What is a defence council

Answer 6

A legal aid lawyer and they represent the accused.

Question 7

What does a sherif do?

Answer 7

If your property is being seized, or you are being escorted to a court room, the sheriff is probably doing it. They carry out orders and serves summonsed, settle claims for damages.

Question 8

What do judges do?

Answer 8

Judges decisions regarding the inclusion of evidence or the questioning of the witness greatly influences the outcome ofthe trial. They exclude the public and control the courtroom during preliminary hearings and trials.

Question 9

What is a stay of proceedings?

Answer 9

-stay can either be a suspension of proceedings to await further action
-or a total discontinuation of the proceedings

-Can beordered if there is justifiable reason why the trial should not continue
• R.V Askov (1990)

Question 10

When do you get a trial by jury?

Answer 10

1) murder
2) treason
3) alarming her majesty
4) Intimidating partrament
5) bribery to judicial office
6) inciting to mutinity
7) conspiring these offences
8) accessory to murder or treason
9) Piracy or piratical acts
10) seditious offences

Question 11

Why would you want a trial by jury?

Answer 11

You only need to sway one juror since they need a unanimous choice

Strong rhetoric may have a greater influence on jury

Jury look at social values, not precedent

Feel empathy if they can relate to the charge and might side with the accused.

Question 12

Why would you want a trial by judge?

Answer 12

Judges aren’t prejudiced.

Jury could have an abhorrence for the offence if it’s something like sexual assault.

Jury might not understand the legal technicalities of the case.

Judges make decisions based on the facts and the law, not on rhetorical skills.

Judges don’t rely on their emotions.

Question 13

Who is excluded from jury duty?

Answer 13

• under 18 over 69
• not a Canadian citizen
•Part of a provincial legislature
• Lawyer, Law student, or justice of the peace
• any type of doctor.
• any police occupation and their spouse. •disability
•convicted of an indictable offence-not pardoned
• teacher / clergy (church)
•salaried gov official
• work for a newspaper
•served in jury last 2-3 years
• run transportation or telegraph communications
• firefighter or brigade
• know each other
• surgery

Question 14

What are the three types of challenges that eliminate jurors?

Answer 14

1) challenge of jury list
2) challenge for cause
3) peremptory challenge

Question 15

Challenge of jury list?

Answer 15

can be challenged by either side

•If selection committee was partial and showed misconduct in choosing
jurors

• Omitt citizens of a particular ethnic group

Question 16

Challenge of cause?

Answer 16

Prospective jurer doesn’t meet the requirements of the provincial statute
governing juries

•not on jury list or exempted
•already formed an opinion by reading about the case
•need to speak an official language

Question 17

Peremptory challenge?

Answer 17

-allows either side to eliminate a prospective juror without reason

Question 18

What is sequestering?

Answer 18

Jury is isolated from family, work, friends, etc.

Can only speak each other and court officer.

given meals + accommodation

So they dont consider outside information and dont influence verdict

Question 19

What is the summation and who closes first?

Answer 19

after all witnesses are called, each side summarizes its case before the Jury (give closing arguments)

• If the defence presents evidence, it closes first. If not, crown closes first.

Question 20

What is charge to the jury?

Answer 20

After the trial, the judge reviews relevent laws with the jury.

They make it clear what things need to be present for a gully verdict.

Indicate what evidence should be given weight.

Question 21

What is a hung jury?

Answer 21

Jury can’t come to a unanimous decision

If judge thinks further examination of the evidence would yield no verdicts they dismiss the jury -> hung jury.

Get a new jury.

Question 22

What are two reasons the jury must acquit the accused?

Question 23

What are defences?

Answer 23

Legal defences fall into two categories: justifications and excuses.

Question 24

What are justification defences?

Answer 24

defendent claims that positives of the act outweigh the negatives:

Include:
1) self-defense
2) defence of others
3) necessity and consent

Question 25

Self defence:

Answer 25

The use of force towards another person when the actor reasonably believes it is necessary to protect himself against the use of unlawful force by the other person.

The act must be in response to an immediate threat and accompanied by an act expressing an intent to execute that threat.

not threats on their own.

“battered women’s syndrome”
allows a defence when the battered person strikes while abuser is asleep or during a pause of the abuse.

the force used in self defence must not exceed the harm threatened. So you can’t use deadly force on just trespassers (that bring no harm)
Because human life is more valuable

One generally has to retreat before resorting the use of deadly force.
They must make reasonable efforts to witndraw from the confrontation.

castle doctrine: don’t have to retreat if attacked own home.

“stand your ground” laws
You don’t have to retreat if you’re in a place you have a right to be in like in your car. Also eliminated it when threatened with deadly force.

Question 26

Defence of others?

Answer 26

When the defendent uses reasonable force against another person who is threatening to inflict force upon a third party.

threat must be immediate, and force must be appropriate

Question 27

Necessity?

Answer 27

when someone commits a criminal act in order to prevent greater harm from occurring

I) the actor reasonably believes the conduct is immediately necessary to
avoid imminent harm

2) the need to avoid the harm outweighs the harm the harm of the defendant violating the law

3) there was no adequate alternative to committing the offence

Question 28

Consent?

Answer 28

the actor consents to a criminal act that might otherwise constitute assault

Consent must be given intelligently and voluntarily

For public policy reasons, a person generally cannot consent to violent crimes. Unless benefit outweignts the risk

Question 29

What is insanity?

Answer 29

•if a defendent is legally insane at the time he commits a crime, he may be found not guilty by reason of insanity
• legal insanity is different from medical insanity

so a psychological or mental abnormality alone is insufficient to establish a defendant is legally insane.

Question 30

What tests determine insanity?

Answer 30

4 tests

1) The M’Naghten Rule:
defendent either: I) doesn’t understand what he was doing at the time
2) doesnt understand what he was doing was wrong due to a diseased mind

2) impulse test asks if they couldn’t control their impulses due to mental disease.

3) The model penal code’s test requires defendent has a mental disease so they cant appreciate the criminalities wrong and can’t conform to the law.

4) Durham rule -> accused is not criminally responsible if the unlawful act is due to a mental disease /defect.

Question 31

Diminished capacity

Answer 31

Different from insanity
Insanity leads to a not guilty verdict
Finished capacity reduces charge but doesn’t get rid of all responsibility
Generally applies to specific intent crimes- negates an element of the crime.

Question 32

Duress

Answer 32

defence when the person acted under the threat of imminent serious bodily injury to himself or a third person.

• “any unlawful threat or coercion used ..
  to induce another to act in a manner he otherwise would not”
• “overwhelms the will” of an ordinary person.
• requires proof of 4 elements
  1) threat of death or serious bodily injury
  2) the threat must be immenant
  3) threat must create reasonable fear in the actor
  4) There must be no reasonable means of escape.

Question 33

Mistake?

Answer 33

2 types: mistake of fact and mistake of law
- mistake of fact can negate an element of a crime. But it cant be used as a defence to crimes in which the mistake was a product of recklessness or negligence.

Ignorance of law is nota defence. (not Knowing speed limit or crimes)
> mistake of law defence applies when the mistake negates an elementof a crime.

Question 34

Entrapment?

Answer 34

When a law enforcement officer induces a person to commit a crime that he would otherwise not have committed
•officer used deception, persuasion, or fraud to convince them

• If police just provide an opportunity , the defence doesn’t apply
  • defendant must show no predisposition to commit the crime

-were they an “Unwary citizen” or “Unwary criminal” who readily availed themselves to the police’s opportunity

Question 35

Automatism

Answer 35

Unconscious, involuntary behaviour
Person is capable of action but not conscious of what he’s doing
Sleep walking, convulsions, psychological stress, or when concussed

Question 36

Alibi

Answer 36

Best defence
Proof accused couldn’t have commit the offence
Maybe in another place at the time

Question 37

Provactaion

Answer 37

• Partial defence for murder
  -consists of blows, words, or gestures
• could be charged with manslaughter instead

> criminal act must occur immediately after provoking act
Provocation must be either an an lawful act oraninsult
-Insult or act should be of such nature that it deprives an ordinary person of his self-control

Question 38

Legal duty

Answer 38

A person under legal duty can commit certain actions that would otherwise constitute offences

Police

Correcting a child

Question 39

Arraignment

Answer 39

this is the first step of a trial

arraignment is the reading of the charges, as contained by indictment. Done at first court appearance (but re-done when appearing at a hgiher court. The accused then enters the plea.

Question 40

Trial procedure?

Answer 40

1) arraignment

2) crown presents the case
-summary to jury
-evidence and witness (crown examination)
-closing statement (can present no further evidence)

3) Defence presents their case
-motion for directed verdict
-present alternative defence
-opening statement
-witnesses and evidence to dispute charges
-closing statement and summation

4) charge to the jury (delibration)

5)verdict

Question 41

Direct evidence

Answer 41

Evidence that stands alone to prove assertion (video, witness, DNA)
-ie. evidence that shows the accused stabbed the victim
-evidence obtained from a witness who actually saw the incident in a hit and run
-contract that is broken in a legal case

Question 42

circumstantial evidence

Answer 42

evidence that requires interference in order to establish material facts

inferences and conclusions can be drawn but you aren’t given actual evidence as to the actual issue in the case

The general rule is that circumstantial evidence is admissible
However, the courts are careful when the only evidence in a case is circumstantial evidence

Circumstantial evidence must be closely examines and must be . The court would be very slow to convict the defendent on the basis of one peace of circumstantial evidence alone like if fingerprints were found at the scene of a crime.

Question 43

Examination in-chief

Answer 43

the first questioning of a witness

no leading questions are permitted. Ie questions which indicate what the answer will be. Generally lead to yes or no answers.

Question 44

Cross-Examination

Answer 44

After the examination in chief is the cross examination

A somewhat different set of rules, may ask leading questions

May ask questions not related to the case in order to test the witnesses credibility

Have the witness give evidence that helps you

To ask the witness more questions about any evidence they’ve already given that you consider to be incorrect.

Question 45

Defence evidence

Answer 45

When it’s the defences turn in court:
• Defence may ask for a directed verdict of not guilty (actus reus and mens rea do not exist

• Defence presents it’s case: summarizes what they set out to prove

Calls witnesses and presents evidence. But again, crown may cross-examine and rebut (contradict evidence)

Fun Fact: surrebuttal is a thing!!!! A counter rebuttal argument

Question 46

Witnesses

Answer 46

Prior to trial, the crown provides the defence with their list of wItnesses.

Witnesses can end up at trial in two ways:
voluntary
Subpoena: court issued document that legally requires a witness to attend a court proceeding.

• Refusing and ignoring a subpoena can result in contempt of court fine of 100$ or 90 days of imprisonment

Question 47

Witness oaths

Answer 47

Adjusting: defence can request any witness in the audience can be removed until it’s their turn to testify.

The witness must swear an oath on a bible, or an affirmation solemn and formal declaration of truth.

Breaking these oaths and lying = perjury

Question 48

Accused as a witness

Answer 48

Accused is not required to take witness stand. Not always recommended

Might come off badly
Cross examination might lead accused to answering question that may strengthen the crowns case

Question 49

Rules of evidence?

Answer 49

Rules of evidence are complex and developed over time. Many are contained in common law, but the rest comes from Canada Evidence
Act

Question 50

What happens if there is a question in court regarding the admissibility of evidence?

Answer 50

Voice dire: jury leaves the room and defence/crown give their position on the evidence. Judge then rules based on rules of evidence. All/none/part ot evidence can be admissible.

Question 51

Types of evidence incriminatory

Answer 51

inculpatory evidence
evidence that directly or indirectly links the accused to the offence they are charged with.
• can be direct or circumstantial

exculpatory evidence:

Evidence that shows the accused did not commit the offence.

corroborative evidence:
any evidence used to support the meaning, validity, or truthfulness of another piece of evidence presented in court.

In general, if inculpatory evidence outweighs exculpatory evidence, and is supported by corroborative evidence, guilt beyond reasonable doubt can be estabished

Question 52

Self incrimination

Answer 52

self-Incrimination: evidence that would directly or indirectly prove the guilt of a person giving evidence.

Canada evidence act makes provisions so witnesses are not forced to give self-incrimination evidence.

In addition, evidence that a witness gives in court can not be used against them in another court case (except perjury)

Question 53

Similar fact evidence

Answer 53

Similar Fast evdence:
Evidence of what an accused has done in the past, to stow its possible they have committed the offense again.

• Can establish a pattern of behaviour, and overcome the defense of a mistake, or accident.

• However, may not simply try to discredit the accused. Must have
Relevance.

Example: The accused is on trial for domestic violence and the Crown presents evidence of other violent crimes they have committed.

Question 54

Hearsay evidence

Answer 54

Hearsay: any statement, written or oral, made outside of court, but presented in court to prove the truth of a statement.
Or in short, testimony based on what a witness heard from another person, that they have no first hand experience or knowledge of.

For example, while testifying in John’s murder trial, Anthony states that John’s best friend told him that John had killed the victim.
Anthony did not hear John make the admission firsthand, making testimony of this statement “hearsay.

Question 55

Opinion evidence

Answer 55

Opinion evidence:
is the scientific, technical, or other specialized opinion of an expert witness who is qualified to give opinions or interpretations in a certain area.

-Forensic Specialists
-Psychological experts
-any field beyond what the jury is likely to have a significant understanding or experience

Example: in a trial for medical malpractice, a medical instructor from University of Saskatchewan is brought in by the Crown to testify how a procedure ought to have been performed, or how that would make the accused negligent.

Question 56

Character evidence

Answer 56

character evidence; any evidence related to the accused’s conduct or reputation beyond the time of their alleged offence. Used by defence to support accused, or crown to infer guilt.

Can take form of:
-reports of reputation in community
-opinion of someone who knows accused
-specific acts the acused has taken

In general, only good character evidence is admissible, unless
• Defence submits good character evidence
• Bad character evidence is relevant

Question 57

Interception devices and video surveillance

Answer 57

May be admitted to court under two circumstances

-one or more parties involved in the conversation consents to the recording

There is court authorization or warrants for the recording. This lasts for up to 60 days.

Question 58

Polygraph evidence

Answer 58

Not admissible in court.

Question 59

Confession

Answer 59

Confession: is an acknowledgement by the accused of the truth of the charge against them (or some essential part of it).

Can be:
Inculparory: an admission
Exculpatory: denial

Any confession made before the accused was informed of their rights is not admissible as evidence
Any confession that is not-voluntary is also inadmissible.

Question 60

How to make an objection

Answer 60

How to make an obiection:
• Make your objection before the witness has an opportunity to answer the question.

Stand up to get the court’s attention.
If the judge has not noticed that you are standing, you can try to get the judge’s attention by saying “Your Honour (or “My Lord” or “Justice”, depending on local practice), I have an objection”.

• Succinctly state the grounds for your objection. Direct your submission to the judge, not opposing counsel.

Sit down when you have finished stating the reason for your objection. The judge may give the opposing counsel a chance to respond before ruling.

Rise again if the judge gives you a chance to respond to examining counsel’s argument.

Get the ruling on the record. If the judge’s ruling is not clear, ask for clarification. This may be important on appeal.

Question 61

reasons jury may acquit the accused

Answer 61

Tue reasons Jury must acquit the accused
• If they believe the evidence of the accused or are unable to decide whom to believe or they are left with unreason able doubt. they must give them the benefit of the doubt
• Insufficient end of guilt : not enough evidence to prove guilt of accused beyond a reasonable doubt

Question 62

Types of objections

Answer 62

Hearsay, testify about something they heard someone else say, not personal experience

Leading ask the witness a question that suggests an answer, can’t testisy freely

• Foundation, witness is asked to testify something they don’t have Knowledge or experience to speak of

irrelevance a question or testimony is not relevent to the case’s issues

speculation: witness is asked to speculate about something, rather than testify what they know

improper argument: lawyer makes on argument, rather than asK a question

Compound question: a witness is asked multiple questions in a single sentence.

asked and answered
: asked witness same questran over and over

calls for legal conclusion: lawyer asks a witness to answer a legal question or come to a legal condusion, rather than giving facts.

Foundation for expert testimony; witness quanfied as an expert is not property qualified to give a testimony in a particular area of expertise.

Vague: lawyer question is difficult to understand, comprehend, Or answer.
Witnesses answer might hurt the case.

non -responsive; examine lawyer uses when a witness is not directly answering questions