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SOCI 327 > Midterm 3 Lectures > Flashcards

Midterm 3 Lectures Flashcards

1
Q

What does the quote “he who is his own lawyer has a fool for a client” mean?

A

-people who do not have a lawyer in court and represent themselves struggle

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2
Q

What did McFarlane (2012) say about what percentage of people self-represent in courts? (2)

A

-80% of family court cases
-60% of civil court cases

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3
Q

Are statistics for criminal courts available?

A

-no

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4
Q

Why do people choose self-representation? (3)

A

-costs with hiring lawyer
-insufficient legal aid
-belief free info online

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5
Q

What do many Canadians experience much stress over?

A

-when they have to self-represent in the legal system

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6
Q

What would a conflict perspective say about the court system? (2)

A

-impoverished Canadians more likely to be convicted in court
-because less likely to put forward successful defences when accused of crime

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7
Q

When is legal aid available? (2)

A

-likelihood of imprisonment
-loss of livelihood

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8
Q

Why can legal aid be difficult to attain?

A

-you have to be eligible for it and the threshold for income is very low

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9
Q

What happens if getting legal aid fails? (3)

A

-consigned to assistance from duty counsel
-student legal clinics
-community legal clinics

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10
Q

What is the burden of the court hypothesis?

A

-Canadians who self-represent place a burden on the court system

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11
Q

What burden do people place on the courts in the “burden of the court” hypothesis? (2)

A
  1. Prosecution and judge forced to assist defendant
  2. Self-represented defendants slow courts down
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12
Q

What did Hann, Nuffield, Meredith and Svoboda do?

A

-contested the “burden of the court” hypothesis

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13
Q

What did Hann, Nuffield, Meredith and Svoboda find in their research? (2)

A

-did not find burden placed on court
-additional burden on accused

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14
Q

What did Hann, Nuffield, Meredith and Svoboda say the burden on the accused consisted of? (3)

A

-more likely to plead guilty earlier
-fewer court appearances
-shorter times per appearance

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15
Q

So is the burden of the courts hypothesis true?

A

-no, it is not

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16
Q

How many different court systems are there in Canada?

A

-14

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17
Q

How many provincial/territorial court systems are there?

A

-13

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18
Q

How many federal court systems are there?

A

-1

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19
Q

What type of court does Nunavut have?

A

-unified superior court

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20
Q

What cases are the provincial/territorial courts responsible for?

A

-responsible for cases within their boundaries

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21
Q

What cases are the supreme courts responsible for?

A

-they have jurisdiction over the entire country

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22
Q

Who has appeal courts?

A

-provincial and territories

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23
Q

Does the justice Minister have power?

A

-yes, more power than the supreme court

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24
Q

What do problem solving courts focus on? (3)

A

-underlying problems
-interagency
-accountability

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25
Q

What are specialized courts?

A

-problem solving courts

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26
Q

What are issues within problem-solving courts? (3)

A

-non-compliance
-conditions imposed by the court
-non-completion of programs

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27
Q

What is therapeutic quiet time?

A

-can be sentenced by a judge and is isolation within cell for 23 hours a day

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28
Q

Do men or women get more severe sentences? (2)

A

-men get more severe
-but women get more rules applied with harsher consequences

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29
Q

How many cases does the Supreme Court of Canada handle per year?

A

-65-80 cases

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30
Q

What percentage of cases seen by the Supreme Court in a year are hand picked by them?

A

-50%

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31
Q

How do Supreme Court judges create criminal justice policy? (2)

A

-judicial review where they conclude if a law is constitutional
-authority to interpret the law

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32
Q

What are the lower courts?

A

-provincial and territorial courts which hear summary convictions

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33
Q

What are higher courts?

A

-superior or higher
-hear indictable offences

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34
Q

What are the 6 steps that occur when a crime has been committed?

A
  1. Investigation
  2. Laying charge
  3. Deciding whether to prosecute
  4. Requiring accused to attend court, enter a plea and bail
  5. Type of offences
  6. Choice of trial court and election by the accused (depending on charges)
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35
Q

What are the 6 steps when you go to court accused with a crime?

A
  1. Preliminary inquiry or hearing
  2. Plea negotiation
  3. Trial
  4. Verdict
  5. Sentencing
  6. Appeal
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36
Q

What is notable about the preliminary inquiry or hearing? (3)

A

-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

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37
Q

Before a criminal trial, what proof is required for it to continue?

A

-probable cause by judge

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38
Q

What is required for a conviction in court?

A

-proof beyond a reasonable doubt

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39
Q

Who are the key actors in the court system? (6)

A

-Crown prosecutors
-defence lawyers
-judges
-juries
-victims
-witnesses

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40
Q

In most criminal cases, what does the accuses plead?

A

-guilty

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41
Q

What did Ericson and Baranek find? Ranked from most to least? (6)

A

-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

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42
Q

What do most people believe is the role of the defence lawyer?

A

-to barter the best deal possible for their clients

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43
Q

What is the defence lawyers true role?

A

-to ensure clients rights are protected

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44
Q

What 4 things do the defence lawyers do?

A

-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

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45
Q

What is the Crown prosecutors main duty?

A

-enforce the law and maintain justice

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46
Q

What must Crown prosecutors follow? (2)

A

-Stinchcombe (1991)
-both crown and defence have to exchange info in a transparent way

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47
Q

Why do crown prosecutors face role conflict?

A

-there are pressures to successfully convict

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48
Q

What do crown prosecutors want to maintain? (2)

A

-administrative credibility
-low acquittal rate

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49
Q

What are Crown prosecutors case load like?

A

-they experience case overload

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50
Q

What did Gomme and Hall say?

A

-crown prosecutors prosecuted 6-10 trials per day

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51
Q

What can happen to crown prosecutors if their decisions are deemed malicious or they have abused their authority?

A

-they can be held civilly liable

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52
Q

What are judges expected to do? (4)

A

-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

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53
Q

What is the start of the adjudication stage?

A

-criminal trial

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54
Q

What is relatively rare in Canada? (2)

A

-jury trials
-they’re costly

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55
Q

What did Thomas say?

A

-only 2% of cases heard at superior court level

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56
Q

What happens during the preliminary hearing of cases involving indictable offences?

A

-accused enters a general plea

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57
Q

About 90% of accused enter what plea?

A

-plea of guilty before trial or in a lower court

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58
Q

For indictable offences, what are the accused more likely to plead?

A

-not guilty and a trial date is set

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59
Q

What is the point of a preliminary hearing? (2)

A

-ascertain if there is enough evidence for case to proceed
-protect accused from an unnecessary trial

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60
Q

What has Canada done with the preliminary hearing?

A

-reduced them because they are unecessary

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61
Q

Does the Crown need to present all of their evidence during the preliminary stage?

A

-no

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62
Q

What happens after the hearing?

A

-trial is scheduled or charges are dropped and accused is freed

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63
Q

Can people forego preliminary hearings?

A

-yes
-many accused do

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64
Q

Do crown prosecutors have discretion in whether they wish to proceed with a case?

A

-yes, significant discretion

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65
Q

What do prosecutors consider when they think about going ahead with a case? (6)

A

-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

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66
Q

What is a plea bargain?

A

-any agreement between accused to plead guilty in return for some benefit

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67
Q

What do plea bargains improve? (3)

A

-improve administrative efficiency of courts
-lower costs of prosecution
-allow prosecution to spend more time on important cases

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68
Q

What are the several types of plea bargain? (5)

A

-charge
-sentence
-procedural
-fact
-label

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69
Q

What are the advantages of plea bargains? (4)

A

-efficiency gains
-cost reductions
-workload reductions
-reduction in trauma felt by victims

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70
Q

What are the disadvantages of plea bargains? (5)

A

-unfair and hidden process
-too much leniency
-reduces CJS credibility
-avoids due process standards
-innocent people may feel pressure to bargain

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71
Q

What were the types of charges in the pie chart? (4)

A

-30% other charges
-24% person charges (violent crime)
-23% administration of justice
-23% property charges

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72
Q

What did Lorena Bobbitt do? (3)

A

-cut half of her husband’s penis off
-claimed he was abusive
-she was acquitted

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73
Q

What percentage of cases resolved in a plea bargain, never make it to trial?

A

-90-95%

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74
Q

How long do prosecutors get to prepare each case?

A

-7 to about 11 minutes for each case

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75
Q

When was the Charter of Rights and Freedom enacted?

A

-April 17th, 1982

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76
Q

What fundamental principles of the CJS did the charter enforce? (3)

A

-fair trial
-protection of due process rights
-freedom from cruel and unusual punishment

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77
Q

What is section 7 of the charter?

A

-individual rights are protected

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78
Q

What is section 8 of the charter?

A

-individuals have right to reasonable expectation of privacy

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79
Q

What is section 9 of the charter?

A

-people cannot arbitrarily detained

80
Q

What is section 10 of charter? (2)

A

-rights of the accused when detained
-Habeus corpus

81
Q

What is Habeus Corpus?

A

-unlawful detention assessment

82
Q

What is section 11 of the charter? (2)

A

-rights people have when charged with an offence
-R. v. askov who sawed off a gun and had a mistrial

83
Q

What is section 12 of the charter?

A

-stipulates fair treatment

84
Q

What is section 13 of the charter?

A

-freedom from self-incrimination

85
Q

What is section 14 of the charter?

A

-right to an interpreter

86
Q

What is section 15 of the charter?

A

-equality rights

87
Q

What is section 16 of the charter?

A

-remedies for violation of other rights in charter

88
Q

What is R. v. Askov? (2)

A

-sawed off shotgun with intent to conduct a violent crime but resulted in a mistrial
-took almost two years to come to trial

89
Q

What did the Supreme Court determine about the principles of fundamental justice?

A

-they are broader than the rights defined in the charter

90
Q

What four areas did the Supreme Court rule in that are outside the charter?

A
  1. Right to silence
  2. Disclosure
  3. Right to full answer and defence
  4. Detention of those found not guilty by reason of insanity
91
Q

How does the CJS define crime? (4)

A

-harmful
-prohibited
-can be prosecuted in a formal environment
-punishment can be handed out

92
Q

What is corpus delecti?

A

-the body of crime

93
Q

What does the state usually have to prove to convict? (7)

A
  1. Legality
  2. Mens rea
  3. Actus rea
  4. Concurrence of mens rea and actus rea
  5. Harm
  6. Causation
  7. Punishment
94
Q

What is Mens rea?

A

-forming intent to carry out crime
-ability to do so

95
Q

What is actus rea?

A

-physically able to carry it out

96
Q

Can you convict without a punishment?

A

-no

97
Q

How are Canadians ensure a fair trial? (4)

A
  1. Right to be presumed innocent until proven guilty
  2. Right to confront accuser
  3. Right to speedy trial
  4. Right to a public trial
98
Q

Who has the burden of establishing guilt?

A

-the state

99
Q

What does it mean that people have the right to confront an accuser? (2)

A

-heresay is not allowed
-exception for some cases like child sexual assault

100
Q

How does the Supreme Court handle unreasonable delay? (4)

A
  1. The length of the delay
  2. Explanation for delay
  3. Defence signed waiver
  4. Prejudice to the accused
101
Q

What is the open court principle?

A

-right to public trial
-value in keeping the process transparent

102
Q

What are publication bans and how often are they used?

A

-where cases cannot be talked about outside of court
-not often does a judge grant this

103
Q

What cases get publication bans?

A

-sexual assault cases, youth cases and where fairness of trial is put at risk

104
Q

What has to follow strict rules and procedures?

A

-criminal trials in Canada

105
Q

Are prosecutors allowed to trick or be deceitful?

A

-no

106
Q

What are the steps in a criminal trial? (4)

A
  1. Charges read
  2. Prosecution makes opening statement
  3. Defence can make an opening statement
  4. For conviction, standard of guilt is beyond a reasonable doubt
107
Q

What should you note about the prosecutions opening statement? (4)

A

-must be impartial
-no personal opinions
-all witnesses mentioned must appear
-evidence not included cannot be mentioned

108
Q

What is usually presented as trial evidence?

A

-testimony from sworn witnesses is presented

109
Q

How many expert witnesses can the prosecution call?

A

-no more than 5 experts without the approval of the judge

110
Q

What right does the defence have regarding the witness?

A

-they have the right to cross reference the witness

111
Q

What does the judge arbitrate on?

A

-what evidence may be included and excluded

112
Q

Does the defence produce witnesses?

A

-they can choose to

113
Q

Does the defendant have to give a testimony?

A

-may or may not give testimony

114
Q

When does the defence have to address the jury before the prosecution?

A

-if the defence presents evidence or the defendant testifies

115
Q

If the defence does not present evidence or the defendant does not testify than who addresses the jury first?

A

-with the closing argument, the prosecution will address the jury first

116
Q

What happens after the closing argument?

A

-the judge charges the jury

117
Q

What does it mean that the judge charges the jury?

A

-judge instructs them on the relevant principles of the law

118
Q

What are the four things the judge has to charge the jury with? (4)

A
  1. Definition of the crime
  2. Presumption of innocence
  3. Burden of proof
  4. If reasonable doubt exists, then the jury must acquit
119
Q

Who can appeal a verdict?

A

-both the defendant and prosecution can appeal a verdict

120
Q

Who can appeal the conviction, the sentence, or being found mentally unfit to stand trial?

A

-the defence

121
Q

What is an excuse defences?

A

-have to be incapable to form intent
-intent is capability to carry out an act

122
Q

What are the 5 excuse defences?

A
  1. Age
  2. Mental disorder
  3. Automatism
  4. Mistake of fact
  5. Mistake of law
123
Q

What is the age excuse defence?

A

-when someone is too young to have intent

124
Q

What is the mental disorder excuse defence? (4)

A

-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

125
Q

What is the automatism excuse defence? (2)

A

-individual has to prove to the court they were in a dissociative state when they committed an act
-brief and short period of time

126
Q

What is the mistake of fact defence excuse? (2)

A

-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

127
Q

What is the mistake of law excuse defence? (2)

A

-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

128
Q

What is a justification defence? (2)

A

-you’re admitting to carrying out the act but your behaviour is justified
-you should get a pardon or have some blame removed

129
Q

What are the 5 justification defences?

A
  1. Duress
  2. Necessity
  3. Self-defence
  4. Provocation
  5. Entrapment
130
Q

What is duress? (5)

A

-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

131
Q

What is necessity? (3)

A

-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

132
Q

What is self-defence?

A

-you can use as much reasonable force as necessary to protect yourself and your property

133
Q

What is provocation? (2)

A

-partial defence for murder only
-you can be provoked into murder via an insult or wrongful act that led you to kill someone

134
Q

What is entrapment?

A

-when an agent of the state deceives someone into committing a criminal act

135
Q

What are summary conviction offences punishable up to?

A

-$5000 and 2 years jail

136
Q

What are known as absolute jurisdiction indictable offences?

A

-less serious offences like theft under $5000

137
Q

What are the most serious indictable offences known as?

A

-Supreme Court exclusive indictable offences

138
Q

What is an election indictable offence?

A

-hybrid offence

139
Q

What is followed when charging or convicting people?

A

-corpus delicti

140
Q

Who uses excuse and justification defences?

A

-the accused

141
Q

What do the court statistics from the bar graph say about people pleading in special courts? (4)

A

-70% plead guilty
-35% stayed or withdrew
-around 10% acquitted
-less than 5% other

142
Q

What is charge bargaining? (4)

A

-a reduction in the charge to a lesser sentence
-withdrawal of charges
-wont charge family or friends
-reduce the number of charges

143
Q

What is sentence bargaining?

A

-promise for the Crown to make a sentence recommendation
-not to seek a more severe penalty

144
Q

What is procedural bargaining?

A

-to proceed with a summary offence not indictable

145
Q

What is fact bargaining?

A

-promise not to voluntarily enter specific info into the court records

146
Q

What is label bargaining?

A

-promise not to classify the accused as a dangerous offender

147
Q

What were the most important points in the John Oliver video? (5)

A

-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

148
Q

What is the Milgard case? (3)

A

-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

149
Q

In most criminal cases, what does the accused choose to do regarding a jury?

A

-choose to not be tried by a jury

150
Q

When do the accused have a right to a jury? (2)

A

-when the maximum punishment of the crime carries a five year term or more
-electable offences (hybrid)

151
Q

Does the jury have input into the sentence of the convicted? (2)

A

-not usually
-may suggest a sentence in second degree murder but the judge doesn’t have to do it

152
Q

What is the process of selecting a jury?

A
  1. Source list is drawn up
  2. Those qualified are identified and summoned to appear in court
  3. Court selects those deemed impartial via ‘random selection’
153
Q

What is problematic about the jury selection process? (4)

A

-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

154
Q

What is the purpose of a trial? (3)

A

-prosecutor proves the guilt of the accused
-prosecutor must prove actus rea and mens rea
-all Canadians possess rights to ensure a fair trial

155
Q

Why do all Canadians possess rights to ensure a fair trial?

A

-to protect society and the accused

156
Q

For an indictable offence, what can the accused appeal their conviction on? (3)

A

-point of law
-question of the fact
-length of the sentence

157
Q

True of False, although Canadians have a charter right to a jury trial, they do not always receive one if they desire it?

A

-True, only if their is a maximum imprisonment time of 5 or more years on the sentence

158
Q

Does every person has a right to a publication ban?

A

-no

159
Q

Most criminal cases are heard within a year?

A

-yes

160
Q

Are most criminal cases heard by juries?

A

-no

161
Q

When judges decide criminals sentences, what do they rely heavily on?

A

-pre-sentencing reports created by probation officers

162
Q

What percentage of serious offences did judges use pre-sentencing reports?

A

-61%

163
Q

What did Hagan and Boldt et al. find about judges using pre-sentencing reports?

A

-found they used them in 80% of all cases

164
Q

What did Roberts reveal about beliefs around punishment in Canada, the USA and UK?

A

-punishments were not harsh enough

165
Q

What did US participants say about punishing criminals? (4)

A

-53% thought punishing criminals appropriately main goal was sentencing
-21% rehabilitation
-13% deterrence or incapacitation
-9% believed no offender could be rehabilitated

166
Q

What are the six rationales used for sentencing?

A

-deterrence
-selective incapacitation
-rehabiliation
-the justice model
-resoration
-healing

167
Q

A

A

A

168
Q

What are judicial sentences restricted by? (2)

A

-law
-mitigating and aggravating circumstances are considered

169
Q

What are aggravating circumstances? (7)

A

-previous convictions
-gang
-victim vulnerability
-planning
-multiple criminal offences
-use/threat of weapon
-brutality

170
Q

What are mitigating circumstances? (7)

A

-first time offender
-employment record
-rehabilitative efforts since crime
-disadvantaged background
-guilty plea and remorse
-prosecution time
-good character

171
Q

What 3 factors are judges governed by?

A

-direction given in statutes
-rules and principles offer guidance to judge to which dispositions should be used
-personal characteristics of judge

172
Q

Are punishments incredibly similar across Canada?

A

-no, vary greatly

173
Q

What do the punishments reflect?

A

-seriousness of crime and how different provinces apply punishments

174
Q

What does PEI do about drunk driving? (2)

A

-receives jail time
-makes up 30% of all crime

175
Q

What are the 9 sentencing options?

A

-imprisonment
-intermittent sentences (weekends)
-fines
-restitution
-probation
-restorative justice
-absolute and conditional discharges
-community based sanctions
-conditional sentence (suspended)

176
Q

What percentages are shown in the sentencing decisions chart?

A

-64% guilty
-32% stayed/withdrawn
-3% acquitted
-1% other decision

177
Q

Of those found guilty in the sentencing decision chart, how were they broken up?

A

-52% other sentence
-45% probation
-35% prison
-34% fine
-3% conditional sentence

178
Q

When are sentencing circles usually used?

A

-usually property offences
-sometimes used

179
Q

What are the benefits of sentencing circles? (4)

A

-reduction in monopoly of professionals
-greater creativity in sentencing
-participation of accused and victim
-more constructive environment

180
Q

What are the four main issues within sentencing?

A

-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)

181
Q

What was Bill C-12?

A

-passed by conservative government 2012
-justice model
-mandatory minimums introduced for drug trafficking, sex crimes and child exploitation

182
Q

What do some politicians think about mandatory minimum penalties?

A

-useful for deterring crime in Canada

183
Q

What is a form of determinate sentencing?

A

-MMP

184
Q

What do truth in sentencing laws require a person to do?

A

-serve 85% of their sentence

185
Q

From who to who do mandatory minimums transfer discretion?

A

-judges to police officer

186
Q

What did the chair of the Canadian Bar Association say about MMP?

A

-MMP’s limit judges discretion to apply the fairest sentence
-probability of being caught will increase the effect of deterrence

187
Q

Is there a system that records wrongful convictions in Canada or the US?

A

-no
-Huff estimated 0.5% of all felony convictions were incorrect

188
Q

What caused wrongful convictions? (3)

A

-eyewitness error (most common)
-forensic errors (Dr. Smith)
-overzealous or unethical police and prosecutors (63% of wrongful convictions result of dysfunctional crown culture)

189
Q

What are presumptive sentences? (3)

A

-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

190
Q

What are the four purposes of presumptive sentences?

A

-uniformity
-neutrality
-truth (ensuring what offenders serve is same as what judge imposes)
-control (preventing overcrowding)

191
Q

What did Miethe and Moore say about sentencing guidelines? (3)

A

-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

192
Q

Why were victim impact statement proposed? (2)

A

-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

193
Q

What did opponents of victim impact statements say? (4)

A

-challenge the adversarial system
-pressure judges
-cause vindictiveness
-decrease court efficiency

194
Q

Who first introduced the victims bill of rights?

A

-1986 Manitoba
-since then all provincial and federal government have passed similar legislation

195
Q

Does the use of victim impact statements vary?

A

-Yes, a lot
-most influential in sexual assault and abuse cases

196
Q

Who has been recently pushing the justice model?

A

-federal conservative government

197
Q

What did the documentary on Calgary police show?

A

-Calgary has had the most fatal shootings out of Canadian provinces
-ASIRT have convicted 1 officer out of 71 cases

SOCI 327 (8 decks)

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