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Midterm

Crim Justice - test 2.docx

14 Pages
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Department
Criminology
Course Code
CRIM 2652
Professor
Amanda Glasbeek

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Description
CJS Test 2 Appearance Notice – A written document filed with the court (or in some cases, a verbal representation made in court) to notify it and the other parties that a party wishes to appear in or receive notice of the proceedings Charge Screening –Charge Screening is the activity of the Crown in determining if they should lay charges or not. Every charge has to be screened in accordance with the charge screening standards of “reasonable prospect of a conviction” as well as is it in the “public’s interest.” Crown counsel is to screen every charge as soon as practicable after the charge arrives at the Crown’s office and prior to setting a date for preliminary hearing or trial. Charge Screening is an ongoing process of examining new information as it is received by Crown counsel in preparation of and during the conduct of bail hearings, pre-trials, preliminary hearings, trials and appeals. Crown Attorney - Compensation of the loss - Represented by the state; in the interest of justice - No interest in winning a trial, yet having a fair trial = finding truth - Minister of justice (impartial) - It remained possible for wrong doers to compensate the system - We do not have the choice of prosecution or payment anymore - Almost all prosecutions are under taken by the state in the name of the head of state (the Crown/the Queen) - Significance: we prosecute not on behalf of individuals and criminal trials are not done on behalf of the victim; prosecution are taken for crime which breaches on the queen’s peace - The Crown retains the authority to state those proceedings - Backed by/represent (power of) the state - Every aspect of this, must be done by the interest of justice (done in the interest of justice) - For this reason, the crown is granted very broad discretionary powers to ensure they can operate freely without interference; they are responsible for their justice/jobs - The Crown occupies a rather peculiar position; the Crown, is not suppose to have any interest on securing convictions (it is not their jobs) - They are Minister of Justice (impartial) – their responsibility to ensure that there is a fair trial - There may be a contradiction because they are suppose to be impartial but at the same time, they are prosecutor in an adversarial system (one side will win); in that sense, the Crown is committed to the outcome - Analogy: the chess player has to make moves for the other side and still win on its own side - Stinchcombe (1991) “The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.” - It puts the Crown to a peculiar responsibility Powers (duties) of the Crown 1) To detain in custody 2) To direct police - relation with police; reason for longer trials – they become more complex, there are pre-trial process to look at the changes of the process (becoming much more complex of legal process) - “it’s simply not feasible in the modern era to expect the police and Crown to work in entirely separate silos, as they once did.” (Code and LeSage, 2008) - in G20, the police worked too closely with the justice authority in government when police actually had a broader responsibility to protect the protestors with equal rights; there has to be a fair balance between collaborating with police and independence - Mega trials – political desire to deal with guns and gangs – police conducts these massive raids; they do mass arrest on what they determine to be gang territory and charge everyone with crimes; they bring in hundreds of people at 4 in the morning to jail but there are no place in the system for them and there’s not enough resources in the courtroom to deal with all these cases – which makes cases take longer and longer; these leads to distrust and dissatisfaction of the criminal justice system; many people suggest that they need a much clearer relationship of the Crown and the police; Closer working relationship, but with precautions: i.e. different prosecutors for pre- charging and prosecution – to maintain the integrity of both aspect of the CJS; there is an eye of potential abuse to that; the important role of what Crowns have & very important act of balancing the powers 3) To prosecute - the Crown enjoys the amount of paperwork discretion and they don’t have to account to anybody for the decisions which they make; there’s proper use of the powers and potential abuse of the powers - (1) stay proceeding – distinct from the withdrawal of the case (the Judge has to give permission to withdrawal from the case) – it’s a delay; the Crown may reactivate the case within the year; proper use of the stay would be (i.e. in cases where police would need more time to collect evidence or if you’re a key witness that’s hospitalized and would need more time to heal); Exclusive jurisdiction of Crown Attorney; Should not be used where there’s no reason to believe that the police needs more time to gather evidence; Should not be used as a resource; Refusing to proceed any further - (2) diversion (and see Griffiths, pp 244-246) – the Crown has the right to divert cases to mediation, drug counselling, community service programs – done prior to convictions; moves the case out of the justice arena into a different program; (i.e. someone who is arrested for graffiti- ing, the Crown does not want to go through all the process); if you weigh the processes in the nature of the offense, the Crown would not want to deal with it; If they satisfy the interests of justice the crown may use diversion; Potential for abuse: the accuse have to agree to the diversion program; Net-widening – p.245 definition – it’s a form of abuse; these are powers of the Crown that is not shared Acquittal – not enough evidence, the Crown has failed to find you are convicted 4) To lay multiple charges - they can increase charges on multiple persons 5) To negotiate pleas NEXT WEEK 6) To disclose or not disclose evidence - determine what is relevant 7) To prefer indictments 8) How to proceed on hybrid offences 9) To appeal at no personal cost - if you are an accuse and you don’t like the verdict of the court, the cost comes out of your pockets - if the Crown wants to appeal a case, there’s no charge because it’s in the public interest Crown – similar logic apply; they are suppose to be Minister of Justice but they can use authority to make sure of convictions; (1) in their busy courts, the Crown attorney are entirely dependent on the police and they won’t reveal a case before them - if the evidence is weak they would drop it but if it were to be strong, then the Crown can make decisions to convict a person; (2) efficiency can see if they were able to use plea bargaining Defence Counsel - Advocates for the accused; job is to keep the prosecution and the court honest; make sure that everything is handled fairly and the accused is not trampled on; Significant – although we have the right to counsel, there is no duty on the part of the state to provide us with a defence lawyers; the state is not obligated to provide you with a defence lawyer; peculiar oversight in our system; in addition, there has been two recent supreme court decision that makes it abundantly clear that the charter on the defence lawyer (1) supreme court ruled that there is no absolute right to stop interrogating a person when he/she is requesting a lawyer; they do not have to stop the trial to attend to your “lawyer” needs; we have the right to defence council but it’s not required for them to be there; Crown Defence Ideal Impartial advocate Not Impartial Pay On Salary Per Case Authority Discretionary power No discretionary power - The defence are regular players in the court room; they have a invested interest in maintaining good relations with the court and all its officials - Structurally, the defence have a double loyalty – there committed to present the case of the system but because they need information of the courtrooms they also have the commitment to remain friendly with the police and the justice and they must ensure they have their own work processes - They share some things in common with the crown as well Crown Defence Attorney Occupational Goals Agent of court with long term Agent of court with long term professional goals professional goals DUAL Role - Ministry of Justice -Defend client - Adversarial Player - Defend System/Self Practice - Work in secrecy - Work in secrecy - Informal “recipe” - Informal “recipe” knowledge knowledge - Sometimes people move in the office to become lawyers and the defence lawyers - One way to test Blumeburg’s theory; is to think about what happens in its absence; what happens when there is not good relation with the defence council and the Crown - Represented by the state - In the interest of justice - No interest in “winning” a trial; yet having a fair trial = finding the truth - Minister of justice (impartial) - Contradictory because it’s an adversarial process - Justice over securing a conviction - Acquittal = not enough evidence, the Crown has failed to find you are convicted - Leave = if you’re granted leave, for an appeal, under question of the law, prove the judge instructed the jury wrong - Judges have the most important role in discretion - Crown Attorney – impartial  minister of Justice - Potential to abuse power Disclosure - 1991 Stinchcombe: mandatory disclosure prior to election – an accused should have the right to mandatory disclosure to the right evidence prior to the preliminary; (a) he was a lawyer charged/preliminary hearing; (b) his secretary fought against him; (c) she was interviewed after the trial; (d) the crown refused to give reasons to the offence was cuz she was not an accountable witness; the crown has a legal duty to disclose all relevant information to the defence - “the fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done” – whether she was a reliable or credible witness it is irrelevant thus the material/information has to be available to each witness Diversion – (and see Griffiths, pp 244-246) – the Crown has the right to divert cases to mediation, drug counselling, community service programs – done prior to convictions; moves the case out of the justice arena into a different program; (i.e. someone who is arrested for graffiti-ing, the Crown does not want to go through all the process); if you weigh the processes in the nature of the offense, the Crown would not want to deal with it; If they satisfy the interests of justice the crown may use diversion; Potential for abuse: the accuse have to agree to the diversion program Electable Offences – Electable offences are indictable offences which may also be tried summarily – i.e. you can elect whether you want to be heard by a Judge alone or by a Judge and jury. Most offences are electable offences. The Crown or the Police can choose whether to lay the charge summarily or indictably. If they have not specified, you get to choose whether you want to be heard by a Judge or a jury Judicial Interim Release (Bail) – Ground for contesting/denying bail: (1) Primary – is there a concern that the accuse will appear for trial? (2) Secondary – risk to the community? (3) “or any just cause being shown” – potential for denying people the right of presumption of innocence – not a well defined reason; more and more ppl are being denied bail; in fact our provincial prisons now hold more ppl pre-trial then waiting for trial - proportionality – the principle is the restriction on freedom must be proportionate to the grounds which you are denying freedom and only as severe as necessary to ensure your purpose and no more; least severe conviction should be met at the court - assumption that the accused are guilty - Crown discretion: consent to release or contest/show cause – they do not have to tell you why they have sentenced you that; they can show cause for denying bail; every bail should be equally available – but it makes it more troubling because Native accused are likely to be denied of all justice and bails; - how does the formal rules work in the court? - What were the reasons given to the Crown for contesting bail? - what’s their background information that structured what we can see in the court - Legal factors: i.e. type of charge, severity of the offence, record of accused, failure to appear, etc. - the Crown can take social factors into account – social climate, income, etc. it tells if the person would be likely to appear in trial - those were the reasons that the court can talk about in bail 1) Bail amount = surety cannot afford bail 2) Individuals remanded in custody are seen as guilty 3) Accused cannot change appearance for bail hearing 4) Crown does not give disclosure of police reports 5) Accused cannot give his/her version of the incident 6) Police reports influence Crown Attorney’s impression of accused 7) Accused person might not get a bail hearing within a reasonable time Surety – an individual who will ensure the accused shows up for trial, however, individuals with a low economic status may not be able to meet the requirements of surety, inequality. In turn, net-widening because people are charged with new offences and become involved with the CJS again Juries - less than 3% of all criminal cases/charges will end up being heard by jury - accused can participate in court procedures - juries are important because they represent the community; that the offender and the victim come from - historically, this notion of jury being community means that the juries were appointed because of their knowledge - Formerly, had to know offender and case, could call witnesses, etc. - nowadays, the juries do not know anything about the victims or offenders as the judge - only allowed to hear legally relevant facts - must have no knowledge of case; neutral fact-finders Technicalities of Juries - Selection - historic disqualifications based on gender, race, nationality - determines through property list or voting list - excludes some people (i.e. work in cjs, some occupations, personal hardship) - Array may kick in to some trials, some people are excludes and some professions are too essential to be part of the jurors – doctors, etc. - peremptory challenges (no reason given) – numbers set by the offence; 14 peremptory challenges (murder); in the criminal code; they don’t have to give any reason for asking people not be on the jury - challenges for cause (i.e. knowledge of case, ineligible, unable, not disinterested); the causes are laid out specifically in the criminal code; if the person has relation with the offender, they can ask them to leave – these are cause – their reasons are enumerated - “an accused is entitled to an indifferent jury not an unfavourable one” – try to weed out people who may not be indifferent; not to create a jury who are in favourable to your case - there has been odds on racial bias – In Canada, juries are not allowed to discuss their deliberations unless it is a mock case (Parks, 1993) – defence wanted to ask the jurors two questions (1) whether they can listen to the witnesses (2) whether they can judge the outcome of the accused (Black Jamaican) and the victim (White man) - potential racism existing in a community is not a sufficient ground to dismiss the jurors but they allowed the asking of the questions and it would sanitize jurors that they should not be engaged in bias thinking of the case - acknowledged that anti-Blackism should not occur with the jurors - police/Crown violations/ “Stacking” – considerable concern about the larger process of jury, 2 years st ago, 1 degree murder trial, the police did a secret background check on the accused; you cannot have been convicted on a indictable offence or be pardoned; the police did background check to see if the jurors had relation with the offender; but it’s violation of professional code of conduct, violation of the Crown and police; most charges are hybrid offences; it would make sense to do these background checks on potential jurors Multiple Charges/Overcharging - overcharging is another principle caused for the longer time cases have to take to get settled; there’s a growing complication of charges; if the police therefore the crown has strong evidence, then a plead bargaining would be a simple case of efficiency; if the evidence are weak as due process model, the case may be coerce; deliberate strategy Net-widening – someone funnelled back into the net when you leave; it’s not by choice; widening of the net; they have to do it (community hours) (i.e. graffiti – community service hours, they are directing you; Net-widening – p.245 definition – it’s a form of abuse; these are powers of the Crown that is not shared; Police reports - police – operate on a model that uses conviction as a measure of their effectiveness; would often over-charge; they can lay multiple charges on one single offence; overcharging is another principle caused for the longer time cases have to take to get settled; there’s a growing complication of charges; if the police therefore the crown has strong evidence, then a plead bargaining would be a simple case of efficiency; if the evidence are weak as due process model, the case may be coerce; deliberate strategy - Police reports on Black me
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