Midterm 3 Lectures Flashcards
What does the quote “he who is his own lawyer has a fool for a client” mean?
-people who do not have a lawyer in court and represent themselves struggle
What did McFarlane (2012) say about what percentage of people self-represent in courts? (2)
-80% of family court cases
-60% of civil court cases
Are statistics for criminal courts available?
-no
Why do people choose self-representation? (3)
-costs with hiring lawyer
-insufficient legal aid
-belief free info online
What do many Canadians experience much stress over?
-when they have to self-represent in the legal system
What would a conflict perspective say about the court system? (2)
-impoverished Canadians more likely to be convicted in court
-because less likely to put forward successful defences when accused of crime
When is legal aid available? (2)
-likelihood of imprisonment
-loss of livelihood
Why can legal aid be difficult to attain?
-you have to be eligible for it and the threshold for income is very low
What happens if getting legal aid fails? (3)
-consigned to assistance from duty counsel
-student legal clinics
-community legal clinics
What is the burden of the court hypothesis?
-Canadians who self-represent place a burden on the court system
What burden do people place on the courts in the “burden of the court” hypothesis? (2)
- Prosecution and judge forced to assist defendant
- Self-represented defendants slow courts down
What did Hann, Nuffield, Meredith and Svoboda do?
-contested the “burden of the court” hypothesis
What did Hann, Nuffield, Meredith and Svoboda find in their research? (2)
-did not find burden placed on court
-additional burden on accused
What did Hann, Nuffield, Meredith and Svoboda say the burden on the accused consisted of? (3)
-more likely to plead guilty earlier
-fewer court appearances
-shorter times per appearance
So is the burden of the courts hypothesis true?
-no, it is not
How many different court systems are there in Canada?
-14
How many provincial/territorial court systems are there?
-13
How many federal court systems are there?
-1
What type of court does Nunavut have?
-unified superior court
What cases are the provincial/territorial courts responsible for?
-responsible for cases within their boundaries
What cases are the supreme courts responsible for?
-they have jurisdiction over the entire country
Who has appeal courts?
-provincial and territories
Does the justice Minister have power?
-yes, more power than the supreme court
What do problem solving courts focus on? (3)
-underlying problems
-interagency
-accountability
What are specialized courts?
-problem solving courts
What are issues within problem-solving courts? (3)
-non-compliance
-conditions imposed by the court
-non-completion of programs
What is therapeutic quiet time?
-can be sentenced by a judge and is isolation within cell for 23 hours a day
Do men or women get more severe sentences? (2)
-men get more severe
-but women get more rules applied with harsher consequences
How many cases does the Supreme Court of Canada handle per year?
-65-80 cases
What percentage of cases seen by the Supreme Court in a year are hand picked by them?
-50%
How do Supreme Court judges create criminal justice policy? (2)
-judicial review where they conclude if a law is constitutional
-authority to interpret the law
What are the lower courts?
-provincial and territorial courts which hear summary convictions
What are higher courts?
-superior or higher
-hear indictable offences
What are the 6 steps that occur when a crime has been committed?
- Investigation
- Laying charge
- Deciding whether to prosecute
- Requiring accused to attend court, enter a plea and bail
- Type of offences
- Choice of trial court and election by the accused (depending on charges)
What are the 6 steps when you go to court accused with a crime?
- Preliminary inquiry or hearing
- Plea negotiation
- Trial
- Verdict
- Sentencing
- Appeal
What is notable about the preliminary inquiry or hearing? (3)
-no longer exists in Canada because of Trudeau
-purpose was to figure out whether someone should go to trial or not
-waste of time and money
Before a criminal trial, what proof is required for it to continue?
-probable cause by judge
What is required for a conviction in court?
-proof beyond a reasonable doubt
Who are the key actors in the court system? (6)
-Crown prosecutors
-defence lawyers
-judges
-juries
-victims
-witnesses
In most criminal cases, what does the accuses plead?
-guilty
What did Ericson and Baranek find? Ranked from most to least? (6)
-70% of accused individuals plead guilty to at least 1 charge
-not guilty
-charges dropped
-found guilty on at least 1 charge
-acquitted
-did not appear
What do most people believe is the role of the defence lawyer?
-to barter the best deal possible for their clients
What is the defence lawyers true role?
-to ensure clients rights are protected
What 4 things do the defence lawyers do?
-examine evidence to assess the strength of Crown’s case
-explain to their clients what is happening at each stage
-sometimes hire experts to investigate case
-second opinions in regards to evidence
What is the Crown prosecutors main duty?
-enforce the law and maintain justice
What must Crown prosecutors follow? (2)
-Stinchcombe (1991)
-both crown and defence have to exchange info in a transparent way
Why do crown prosecutors face role conflict?
-there are pressures to successfully convict
What do crown prosecutors want to maintain? (2)
-administrative credibility
-low acquittal rate
What are Crown prosecutors case load like?
-they experience case overload
What did Gomme and Hall say?
-crown prosecutors prosecuted 6-10 trials per day
What can happen to crown prosecutors if their decisions are deemed malicious or they have abused their authority?
-they can be held civilly liable
What are judges expected to do? (4)
-uphold the rights of the accused
-arbitrate any disputes between prosecutor and defence lawyer
-sometimes trier of fact
-decide the type and length of punishment
What is the start of the adjudication stage?
-criminal trial
What is relatively rare in Canada? (2)
-jury trials
-they’re costly
What did Thomas say?
-only 2% of cases heard at superior court level
What happens during the preliminary hearing of cases involving indictable offences?
-accused enters a general plea
About 90% of accused enter what plea?
-plea of guilty before trial or in a lower court
For indictable offences, what are the accused more likely to plead?
-not guilty and a trial date is set
What is the point of a preliminary hearing? (2)
-ascertain if there is enough evidence for case to proceed
-protect accused from an unnecessary trial
What has Canada done with the preliminary hearing?
-reduced them because they are unecessary
Does the Crown need to present all of their evidence during the preliminary stage?
-no
What happens after the hearing?
-trial is scheduled or charges are dropped and accused is freed
Can people forego preliminary hearings?
-yes
-many accused do
Do crown prosecutors have discretion in whether they wish to proceed with a case?
-yes, significant discretion
What do prosecutors consider when they think about going ahead with a case? (6)
-their belief in the guilt of accused
-seriousness of crime
-record of accused
-witnesses
-credibility of victims and witnesses
-whether accused is involved in a more serious trial
What is a plea bargain?
-any agreement between accused to plead guilty in return for some benefit
What do plea bargains improve? (3)
-improve administrative efficiency of courts
-lower costs of prosecution
-allow prosecution to spend more time on important cases
What are the several types of plea bargain? (5)
-charge
-sentence
-procedural
-fact
-label
What are the advantages of plea bargains? (4)
-efficiency gains
-cost reductions
-workload reductions
-reduction in trauma felt by victims
What are the disadvantages of plea bargains? (5)
-unfair and hidden process
-too much leniency
-reduces CJS credibility
-avoids due process standards
-innocent people may feel pressure to bargain
What were the types of charges in the pie chart? (4)
-30% other charges
-24% person charges (violent crime)
-23% administration of justice
-23% property charges
What did Lorena Bobbitt do? (3)
-cut half of her husband’s penis off
-claimed he was abusive
-she was acquitted
What percentage of cases resolved in a plea bargain, never make it to trial?
-90-95%
How long do prosecutors get to prepare each case?
-7 to about 11 minutes for each case
When was the Charter of Rights and Freedom enacted?
-April 17th, 1982
What fundamental principles of the CJS did the charter enforce? (3)
-fair trial
-protection of due process rights
-freedom from cruel and unusual punishment
What is section 7 of the charter?
-individual rights are protected
What is section 8 of the charter?
-individuals have right to reasonable expectation of privacy
What is section 9 of the charter?
-people cannot arbitrarily detained
What is section 10 of charter? (2)
-rights of the accused when detained
-Habeus corpus
What is Habeus Corpus?
-unlawful detention assessment
What is section 11 of the charter? (2)
-rights people have when charged with an offence
-R. v. askov who sawed off a gun and had a mistrial
What is section 12 of the charter?
-stipulates fair treatment
What is section 13 of the charter?
-freedom from self-incrimination
What is section 14 of the charter?
-right to an interpreter
What is section 15 of the charter?
-equality rights
What is section 16 of the charter?
-remedies for violation of other rights in charter
What is R. v. Askov? (2)
-sawed off shotgun with intent to conduct a violent crime but resulted in a mistrial
-took almost two years to come to trial
What did the Supreme Court determine about the principles of fundamental justice?
-they are broader than the rights defined in the charter
What four areas did the Supreme Court rule in that are outside the charter?
- Right to silence
- Disclosure
- Right to full answer and defence
- Detention of those found not guilty by reason of insanity
How does the CJS define crime? (4)
-harmful
-prohibited
-can be prosecuted in a formal environment
-punishment can be handed out
What is corpus delecti?
-the body of crime
What does the state usually have to prove to convict? (7)
- Legality
- Mens rea
- Actus rea
- Concurrence of mens rea and actus rea
- Harm
- Causation
- Punishment
What is Mens rea?
-forming intent to carry out crime
-ability to do so
What is actus rea?
-physically able to carry it out
Can you convict without a punishment?
-no
How are Canadians ensure a fair trial? (4)
- Right to be presumed innocent until proven guilty
- Right to confront accuser
- Right to speedy trial
- Right to a public trial
Who has the burden of establishing guilt?
-the state
What does it mean that people have the right to confront an accuser? (2)
-heresay is not allowed
-exception for some cases like child sexual assault
How does the Supreme Court handle unreasonable delay? (4)
- The length of the delay
- Explanation for delay
- Defence signed waiver
- Prejudice to the accused
What is the open court principle?
-right to public trial
-value in keeping the process transparent
What are publication bans and how often are they used?
-where cases cannot be talked about outside of court
-not often does a judge grant this
What cases get publication bans?
-sexual assault cases, youth cases and where fairness of trial is put at risk
What has to follow strict rules and procedures?
-criminal trials in Canada
Are prosecutors allowed to trick or be deceitful?
-no
What are the steps in a criminal trial? (4)
- Charges read
- Prosecution makes opening statement
- Defence can make an opening statement
- For conviction, standard of guilt is beyond a reasonable doubt
What should you note about the prosecutions opening statement? (4)
-must be impartial
-no personal opinions
-all witnesses mentioned must appear
-evidence not included cannot be mentioned
What is usually presented as trial evidence?
-testimony from sworn witnesses is presented
How many expert witnesses can the prosecution call?
-no more than 5 experts without the approval of the judge
What right does the defence have regarding the witness?
-they have the right to cross reference the witness
What does the judge arbitrate on?
-what evidence may be included and excluded
Does the defence produce witnesses?
-they can choose to
Does the defendant have to give a testimony?
-may or may not give testimony
When does the defence have to address the jury before the prosecution?
-if the defence presents evidence or the defendant testifies
If the defence does not present evidence or the defendant does not testify than who addresses the jury first?
-with the closing argument, the prosecution will address the jury first
What happens after the closing argument?
-the judge charges the jury
What does it mean that the judge charges the jury?
-judge instructs them on the relevant principles of the law
What are the four things the judge has to charge the jury with? (4)
- Definition of the crime
- Presumption of innocence
- Burden of proof
- If reasonable doubt exists, then the jury must acquit
Who can appeal a verdict?
-both the defendant and prosecution can appeal a verdict
Who can appeal the conviction, the sentence, or being found mentally unfit to stand trial?
-the defence
What is an excuse defences?
-have to be incapable to form intent
-intent is capability to carry out an act
What are the 5 excuse defences?
- Age
- Mental disorder
- Automatism
- Mistake of fact
- Mistake of law
What is the age excuse defence?
-when someone is too young to have intent
What is the mental disorder excuse defence? (4)
-when someone isn’t seen guilty because of a mental illness
-rarely given
-longer term compared to automatism
-had to be visible prior to the crime
What is the automatism excuse defence? (2)
-individual has to prove to the court they were in a dissociative state when they committed an act
-brief and short period of time
What is the mistake of fact defence excuse? (2)
-limited defence
-person was unaware of the real true facts of the case and wouldn’t have carried it out if they knew these facts
What is the mistake of law excuse defence? (2)
-assumption that ignorance is not a defence in a court of law
-used example of senate members who used benefits to live in second home and got excused for their behaviour
What is a justification defence? (2)
-you’re admitting to carrying out the act but your behaviour is justified
-you should get a pardon or have some blame removed
What are the 5 justification defences?
- Duress
- Necessity
- Self-defence
- Provocation
- Entrapment
What is duress? (5)
-wrongful threat of 1 person results in someone else committing a crime to prevent that harm from occurring
-feel like there is no safe avenue of escape
-a defence of necessity
-could be a threat of nature
-disable daughter who father killed
What is necessity? (3)
-accused was in immediate danger
-no reasonable legal alternative to breaking the law
-harm inflicted by the accused must be reasonable based on the harm avoided by the accused
What is self-defence?
-you can use as much reasonable force as necessary to protect yourself and your property
What is provocation? (2)
-partial defence for murder only
-you can be provoked into murder via an insult or wrongful act that led you to kill someone
What is entrapment?
-when an agent of the state deceives someone into committing a criminal act
What are summary conviction offences punishable up to?
-$5000 and 2 years jail
What are known as absolute jurisdiction indictable offences?
-less serious offences like theft under $5000
What are the most serious indictable offences known as?
-Supreme Court exclusive indictable offences
What is an election indictable offence?
-hybrid offence
What is followed when charging or convicting people?
-corpus delicti
Who uses excuse and justification defences?
-the accused
What do the court statistics from the bar graph say about people pleading in special courts? (4)
-70% plead guilty
-35% stayed or withdrew
-around 10% acquitted
-less than 5% other
What is charge bargaining? (4)
-a reduction in the charge to a lesser sentence
-withdrawal of charges
-wont charge family or friends
-reduce the number of charges
What is sentence bargaining?
-promise for the Crown to make a sentence recommendation
-not to seek a more severe penalty
What is procedural bargaining?
-to proceed with a summary offence not indictable
What is fact bargaining?
-promise not to voluntarily enter specific info into the court records
What is label bargaining?
-promise not to classify the accused as a dangerous offender
What were the most important points in the John Oliver video? (5)
-right to a public attorney
-only came about in 63
-60-90% of criminal defendants need a publicly funded attorney
-typically have 7-11 minutes per case
-90-95% of cases are resolved by plea bargaining and never make it to trial
What is the Milgard case? (3)
-in 1970, Milgard was wrongly convicted and tried to appeal his case which was unsuccessful
-DNA evidence 21 years later exonerated him from the crime
-CJS can fail people
In most criminal cases, what does the accused choose to do regarding a jury?
-choose to not be tried by a jury
When do the accused have a right to a jury? (2)
-when the maximum punishment of the crime carries a five year term or more
-electable offences (hybrid)
Does the jury have input into the sentence of the convicted? (2)
-not usually
-may suggest a sentence in second degree murder but the judge doesn’t have to do it
What is the process of selecting a jury?
- Source list is drawn up
- Those qualified are identified and summoned to appear in court
- Court selects those deemed impartial via ‘random selection’
What is problematic about the jury selection process? (4)
-selecting jury people is not random
-they will exclude groups of people
-some jurisdictions don’t allow indigenous people on Jurys
-lawyers could dismiss people and not say why
What is the purpose of a trial? (3)
-prosecutor proves the guilt of the accused
-prosecutor must prove actus rea and mens rea
-all Canadians possess rights to ensure a fair trial
Why do all Canadians possess rights to ensure a fair trial?
-to protect society and the accused
For an indictable offence, what can the accused appeal their conviction on? (3)
-point of law
-question of the fact
-length of the sentence
True of False, although Canadians have a charter right to a jury trial, they do not always receive one if they desire it?
-True, only if their is a maximum imprisonment time of 5 or more years on the sentence
Does every person has a right to a publication ban?
-no
Most criminal cases are heard within a year?
-yes
Are most criminal cases heard by juries?
-no
When judges decide criminals sentences, what do they rely heavily on?
-pre-sentencing reports created by probation officers
What percentage of serious offences did judges use pre-sentencing reports?
-61%
What did Hagan and Boldt et al. find about judges using pre-sentencing reports?
-found they used them in 80% of all cases
What did Roberts reveal about beliefs around punishment in Canada, the USA and UK?
-punishments were not harsh enough
What did US participants say about punishing criminals? (4)
-53% thought punishing criminals appropriately main goal was sentencing
-21% rehabilitation
-13% deterrence or incapacitation
-9% believed no offender could be rehabilitated
What are the six rationales used for sentencing?
-deterrence
-selective incapacitation
-rehabiliation
-the justice model
-resoration
-healing
A
A
What are judicial sentences restricted by? (2)
-law
-mitigating and aggravating circumstances are considered
What are aggravating circumstances? (7)
-previous convictions
-gang
-victim vulnerability
-planning
-multiple criminal offences
-use/threat of weapon
-brutality
What are mitigating circumstances? (7)
-first time offender
-employment record
-rehabilitative efforts since crime
-disadvantaged background
-guilty plea and remorse
-prosecution time
-good character
What 3 factors are judges governed by?
-direction given in statutes
-rules and principles offer guidance to judge to which dispositions should be used
-personal characteristics of judge
Are punishments incredibly similar across Canada?
-no, vary greatly
What do the punishments reflect?
-seriousness of crime and how different provinces apply punishments
What does PEI do about drunk driving? (2)
-receives jail time
-makes up 30% of all crime
What are the 9 sentencing options?
-imprisonment
-intermittent sentences (weekends)
-fines
-restitution
-probation
-restorative justice
-absolute and conditional discharges
-community based sanctions
-conditional sentence (suspended)
What percentages are shown in the sentencing decisions chart?
-64% guilty
-32% stayed/withdrawn
-3% acquitted
-1% other decision
Of those found guilty in the sentencing decision chart, how were they broken up?
-52% other sentence
-45% probation
-35% prison
-34% fine
-3% conditional sentence
When are sentencing circles usually used?
-usually property offences
-sometimes used
What are the benefits of sentencing circles? (4)
-reduction in monopoly of professionals
-greater creativity in sentencing
-participation of accused and victim
-more constructive environment
What are the four main issues within sentencing?
-disparity (much is the result of judges)
-courthouse norms (backlogs and pleas)
-sentencing discrimination (employment and detention)
-public opinion (62% of public and 63% of judiciary agree on which offenders should be incarcerated)
What was Bill C-12?
-passed by conservative government 2012
-justice model
-mandatory minimums introduced for drug trafficking, sex crimes and child exploitation
What do some politicians think about mandatory minimum penalties?
-useful for deterring crime in Canada
What is a form of determinate sentencing?
-MMP
What do truth in sentencing laws require a person to do?
-serve 85% of their sentence
From who to who do mandatory minimums transfer discretion?
-judges to police officer
What did the chair of the Canadian Bar Association say about MMP?
-MMP’s limit judges discretion to apply the fairest sentence
-probability of being caught will increase the effect of deterrence
Is there a system that records wrongful convictions in Canada or the US?
-no
-Huff estimated 0.5% of all felony convictions were incorrect
What caused wrongful convictions? (3)
-eyewitness error (most common)
-forensic errors (Dr. Smith)
-overzealous or unethical police and prosecutors (63% of wrongful convictions result of dysfunctional crown culture)
What are presumptive sentences? (3)
-same as sentencing guidelines
-they offer judges a range of minimum and max penalties
-eliminate judicial discretion as they’re based on the severity of crime and prior record
What are the four purposes of presumptive sentences?
-uniformity
-neutrality
-truth (ensuring what offenders serve is same as what judge imposes)
-control (preventing overcrowding)
What did Miethe and Moore say about sentencing guidelines? (3)
-reduced judicial discretion and disparity
-created a shift from property offenders to violent offenders in prison
-influenced judges and prosecutors to bend the rules by altering their charges and pleas
Why were victim impact statement proposed? (2)
-1980s, to recognize the rights of the victim
-increase dignity of victims, let them say how they’ve been affected and promote fairness in sentencing
What did opponents of victim impact statements say? (4)
-challenge the adversarial system
-pressure judges
-cause vindictiveness
-decrease court efficiency
Who first introduced the victims bill of rights?
-1986 Manitoba
-since then all provincial and federal government have passed similar legislation
Does the use of victim impact statements vary?
-Yes, a lot
-most influential in sexual assault and abuse cases
Who has been recently pushing the justice model?
-federal conservative government
What did the documentary on Calgary police show?
-Calgary has had the most fatal shootings out of Canadian provinces
-ASIRT have convicted 1 officer out of 71 cases
