CRIM 330 Lecture Notes - Lecture 6: Judicial Notice, Trial, Peremptory Challenge

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V. Trial Procedure and the Role of Juries
1. Trial Procedure
(a) Crown’s Case
- Opening address
- Crown witnesses
o Direct examination by Crown
o Cross examination by Defence
o Re-examination by Crown on any new matters arising on cross-examination
o Note important of witnesses… virtually all evidence must be introduced
through witnesses
(b) Defence Motions
- Occur at end of Crown’s case and before defence presents its own case
- No evidence motion
o Seeks dismissal of charge on basis that Crown has led no evidence on an
essential element of the offence
o If it fails, Defence may still proceed with case
- Insufficient evidence “motion”
o Argue there is insufficient evidence to convict (Crown hasn’t proven case
beyond a reasonable doubt, so there is no need for Defence to present a case at
all)
o Essentially asking the judge to render a verdict without the Defence presenting
a case
o Risky… if this fails, there is no opportunity for Defence to carry on and present
a case (since the judge has rendered a final verdict)
(c) Defence Case
- Opening address (outlining why Defence thinks Crown has failed to prove case beyond a
reasonable doubt, and the case the Defence intends to present to reinforce that an
acquittal is in order)
o Occasionally judge will allow defence to make opening address at beginning of
trial, right after opening address of Crown
- Defence witnesses
- Direct examination by Defence
- Cross examination by Crown
- Re-examination by Defence on any new matters arising on cross-examination
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- Both Crown and Defence summarize the argument presented (and held admissible) and
argue whether it points to a conviction or an acquittal
- There are limits what can be said:
o Personal opinions re guilt or innocence of accused should not form part of
these arguments
o Personal opinion re credibility of witnesses shouldn’t form part of the
arguments
o Restricted to referencing only the evidence that was ruled admissible
o Crown is not to inflame the jury vs. the accused (where it is a jury trial)
(d) Charge to the Jury
- In a jury trial the charge to the jury (by the judge) follows closing arguments
2. Determining the Admissibility of Evidence at Trial: The Voir Dire (to see or to say)
- Evidence may only be used in a trial if it is admissible
- If there is a dispute between Crown and Defence over the admissibility of evidence, the
dispute is resolved by a judge through a process called voir dire
- The voir dire is a separate hearing from the trial if it is admissible
- If there is a dispute between Crown and Defence over the admissibility of evidence, the
dispute is resolved by a judge through a process called voir dire
- The voir dire is a separate hearing from the trial (often referred to as a “trial within a
trial”) focused exclusively on the admissibility of evidence
o Trial is suspended while the voir dire occurs
o At the end of the voir dire the judge will rule on admissibility of the evidence
in question
o Then the trial will resume either with or without the evidence that was the
subject of the voir dire (depending on the ruling of the judge)
- Process:
o Question of admissibility is raised and a voir dire is requested
o Crown will lead evidence on admissibility (including calling witnesses)
o Defence may cross-examine the Crown witnesses and call its own witnesses if
necessary
o Crown and Defence will then make legal argument (rules of evidence -
admissibility - are question of law)
o Judge makes decision
- Jury will be excluded; often there is advance agreement to hold voir dire
3. Juries
(a) Right to a Jury Trial
(i) Charter s. 11(f)
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