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SOC 3730 (86)

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SOC 3730
Michelle Dumas

SOC3730 – LECTURE – FEBRUARY 28, 2013 TRIALS AND EVIDENCE Right to Speedy Trial - Delays o Especially when it comes to criminal cases o Sometimes occurs because parties of defence and crown are trying to negotiate a plea - Causes o In Michelle’s case, they did not have a court room. Different reasons. - Charter Rights: Sec 11(b) (tried in reasonable time) - R v. Askov (1990) – three men – pointed a firearm – denied bail, held in remand, november of 1983, finally released on bail for 50 grand in may – first prelim july 4 and trial started sept 2 1986 (three years later) – they won because it was a long time – crown appealed – social science research – looked at outcomes based on how long they took to go to trial – they found that appeal had the lengthiest delays in North America – longer the delay, more hurtful it can be to someone who is convicted - Problems o Getting ahold of witnesses – people move, people have other things going on in their life o Victims feel like they are not getting closure – dragged through system longer o Public can lose faith in the system - SCC (4 factors… length of delay, explanation for the delay, waiver, prejudice to the accused) o 6-8 months is a good reasonable time for a delay o must be due to justice system and not because of the defence o 1. The length of delay – Time (can cause several problems) – Reasons 2. Explanation for the delay – Crown & institutional (responsible for saying how the delay was justified – show there was not enough judges to oversee or not enough courtrooms, etc.) – Defendant 3. Waiver – Freely given (that you are giving up right to a speedy trial – then the delay is justified if they waive that right) 4. Prejudice to the accused – Damage Impact - hundred thousand criminal charges were currently stayed because the cases were backlogged and taking too much time – within two years SCC came back to issue of what is a speedy trial Return (SCC): time – R. v. Morin (1992) – 14-15 months is not seen as excessive time and that most courts should see cases within 8-10 in provincial courts and 10 months is not SOC3730 – LECTURE – FEBRUARY 28, 2013 unreasonable - Today – criminal trials are very formal o Cannot ask leading questions o Cannot ask or make prejudicial comments o No use of trickery to win case The Criminal Trial - Lack surprise – no last minute witnesses or evidence are allowed. It all has to be disclosed to the other party. Evidence to crown must be disclosed to defence as well. - Complex cases – more need for rules to be upheld - Judge’s role – make sure rules are followed – judge could decide that certain evidence or statements are not allowed and based on what they perceive to be keeping case from being prejudicial and as impartial as possible - Key Actors – crown/pros – defence lawyer – the judge (jury sometimes, but Canada has a 5 years or more in prison for need of jury… US can have jury at anytime) Criminal Trial - Evidence - Prosecutor o Police  key component for pros – need to collect evidence and do best investigative job they can – police reports are the crowns primary evidence. They rely on police for all evidence, for talking and interviewing people. o Witnesses & victims  They are part of the evidence! o Physical o Experts  To verify or explain information about the case – someone not involved in case whatsoever but it’s their job in the real world for whatever it happens to be (Forensic analysts, etc.) - Defence o Evidence  rely on themselves and the resources they have at their disposal – defence lawyers visit crime scene when police are done to get an idea – work for client – any evidence given from defense has been given by client o Innocent narrative  presenting an innocent narrative so when they question crown’s evidence or challenging it in someway, it is to fit client into this innocent narrative – my client is not responsible for that and this is why. providing doubt for evidence presented by the crown. SOC3730 – LECTURE – FEBRUARY 28, 2013 Criminal Trial – Evidence (Special) - Fair trial o Upholding rules and procedures of court o We control evidence used in court or presented –make sure that all evidence presented in court is obtained lawfully - Hearsay evidence o Not allowed in court – considered secondhand information – accepted as evidence in very rare circumstances – hearsay does not allow for cross-examination – that person is not their to testify or answer questions - Accused rights - Cross-examination o Both parties have the right to cross-examination o Anything that is presented by defence can be cross- examined/challenged by the crown Criminal Trial – Evidence (Special) - Children (sexual assault) o Away from accused - Behind screen or television in the courthouse o children who testify in court do so under trained staff. o Case by case basis - Videotape evidence o Evidence of a testimony is usually not allowed because it does not allow for cross-examination Opening Statements - Canada - Procedure - Crown o Rules  Cannot provide personal opinions  Cannot say anything about winning or losing  Cannot anything that will excite the jury about the accused o Impartiality o Personal bias – excluded in courts o Promise of evidence – same is true in the USA – must be produced in court and trial (same thing goes for witnesses and victims mentioned) o Record – cannot bring up prior record of the accused – talking about the charges right now Opening Statements - Canada - Defence o Requirement – does not have to have opening statement (typically do if the case is more complex or serious) o Innocence narrative – typically say why their client is innocent o Evaluate Crown’s case – provide information on how they plan to evaluate the crown’s case SOC3730 – LECTURE – FEBRUARY 28, 2013 - Judge o Less likely to need an opening statement Presentation of Evidence (Crown) - Burden of Proof o Beyond a reasonable doubt o Under the assumption that it is better to release 100 guilty people then to convict one innocent - Centrepiece of trial o Crown is the centerpiece – most of the work is on them – rely on police to do job - First evidence (sworn witness) - Two types: o A) direct evidence – factual evidence provided based on the case at hand – videos, photos, wire taps, recorded confessions, fingerprints, etc. – directly directed to the accused o B) circumstantial evidence – evidence based on circumstances that you are making an inference that it is connected to the accused - Judge’s Role o Act as umpire, referee, must be impartial and make sure that both parties abide by rules of court Presentation of Evidence - Crown - Order of Evidence o Victim, police, medical, expert, eyewitness - Charter sec. 13 (right not to incriminate) o Witness who testifies has a right not to have any incriminating evidence … essentially means you do not have to testify if you are accused … right to remain silent and say nothing that may incriminate you - Charter sec. 14 (right to interpreter) Presentation of Evidence - Crown - Witnesses o Unreliability – some are consider to be unreliable – asked questions on the stand to establish that unreliable – any prior criminal record? (you are now unreliable!) – are you a drug addict or an alcoholic? (you are now unreliable!) – paid police informer (are you being paid? You are now unreliable! You are doing it to gain favours or money) – given special consideration for your testimony (you are now unreliable!) (an example of this is Homolka… got 12 years for making a that special testimony) - Opinions o Victims or witnesses opinions are not allowed o In your expert opinion – not on personal opinion, but rather person opinion SOC3730 – LECTURE – FEBRUARY 28, 2013 - Expert Witnesses o Only 5 expert witnesses can be used by pros and by defence in Canada (if you want more then 5 it must be approved by the judge) and in the USA, you can have as many as you want. Questions & Cross-Examination - Two types o Speaker does not know answer but wants to know what answer is o Speaker has an idea of what answer will be but are asking question to make the person say it in court so it is on the record - Can only get someone to talk in court by asking questions - Unanswerable questions o A) Statement o B) Respondent o C) Debilitates - Inadmissible (objections) (US) Questions commonly asked - i) Declaratives o what happened to whom? Where were you standing? Trying to establish essentially what occurred so that you can establish a crime has occurred. They are more descriptive questions with more descriptive answers. - ii) Interrogative yes/no o yes or no answers - iii) Interrogative wh-questions o typically asked of experts – where, who, what – clarify facts - iv) Re-questions o asked similar questions in another way – to point out inconsistencies – provide doubt – mostly done by defense lawyers - v) Imperatives o recommendations that are made and you are going to tell me if it is true or not – where you fit not this imperative – “I’m going to suggest you were standing to the right of this person, is this true?” Expert
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