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Lecture

11 Fact finding and impartiality.docx
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Department
Law
Course
LAWS 2301
Professor
Diana Young
Semester
Fall

Description
Fact finding and impartiality OJ Simpson - OJ Simpson got the not guilty verdict - Most likely because the jury was mostly black - Regarding racism of officers and concerns by the defense that there had been evidence tampering and that evidence may have been planted. Reactions - The black people were really happy OJ got away with it, but the white people were outraged - Not concerned about the justice, rather more of the victory for the black population against a police system with severe racism issues - Personal experience (and family/friends experiences) will influence your reactions - We have a background of interpreting what is plausible and background in understanding what is happening - Experience relates to what conclusions you draw from information you are given Impartiality (case R. v. RDS) - Judges should be impartial. Kind of like a clean slate - Can’t be a judge and be a clean slate because you need to have a certain amount of personal history to interpret what you are looking at • Same with juries Findings of fact - How to make findings of fact in courtrooms and how we should understand the concept of impartiality - Provincial criminal courts do not have juries, so the judge makes both findings of fact and findings of law In a court - In the superior courts (where indictable offences are looked at). When there is a jury trial, the jury makes the finding of fact and the judge makes the finding of law - In both of these, there is an idea of the various mechanisms available to ensure that the finding of fact is going to be impartial - When you have a jury trial, the jury selection process helps to keep impartiality • Draw from the general population a group of people who can be representative of the public to make these findings of fact • In Ontario, we have the JuriesAct  In this Act, a list of jurors are selected from a voter registration list of assessment rolls, and what happens is a group of people are periodically summoned to appear as juries  From this jury list, they are referred to the jury array, juries will be in panel.  One way to ensure impartiality is that a jury array can be challenged on the grounds that there is a bias in the way the jury was selected.  S.629 the accused or the prosecutor  Once you have your array, S.631 talks about paneling the jury. The judge decides how many people they will need to sit in the actual jury, but the judge must select more than 12 people, because there’s a process where a prosecutor or the defense can challenge a juror  2 kinds of challenges  Peremptory challenge: challenge a potential juror to stand aside. Don’t have to give any reasons, but you have limits to the # of peremptory challenges you can raise.  Will use this to get rid of jurors that they don’t want to be on the jury that will do the finding of facts.  Challenge for cause: set out in S.638. Most of these take place for reasons under subsection B the potential juror is biased in some way  If you are a lawyer and you are going through this process, it is preferable to use this challenge because you have an unlimited # of these  Idea of this is that you need to ferret out any kind of bias that a juror might bring to the process - There are other ways to ensure juror impartiality. • Jurors have to take an oath in front of the judge to be impartial and set aside any personal bias when they make decisions • 12 jurors is thought to assist in diluting the effect of any bias that any single juror might have  This is thought to assist in insuring there is a fair degree of impartiality in jury decisions Racial bias - In both cases for today, there is an issue of racial bias - R v. Williams • What do we do about ensuring that juries are free of racial bias? • Aboriginal man accused of armed robbery • The defense wanted to make a challenge for cause of the jurors based on the possibility that they might have discriminatory attitudes towards aboriginals  Process for doing a challenge for cause involves showing, through a couple of questions, that a particular juror may not be impartial  Must show a prima facie bases for making this kind of inquiry • The issue was should the defense lawyers be able to challenge for cause - This case signifies a shift in the criminal justice system to confront issues of racial discrimination directly Types of biases - Court sets out there are 4 classes of bias: • Interest partiality: a juror has a stake in the outcome due to a relationship with one of the parties. Friend of the accused= reasonable grounds for bias, and therefore challenge for cause • Specific partiality: juror who has specific knowledge of a cause, either through personal knowledge or media reports. Having pre-judged the outcome. • Generic partiality: stereotypical attitudes about the accused, victim, or type of crime involved. • Conformity partiality: community feeling about the case that influences their thinking about it. Ex: everyone
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