CRIM 330 Chapter Notes - Chapter 10: Voir Dire, Jury Trial, Jury Nullification
13 Jun 2018
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CRIM 330 - Textbook - Chapter 10
Procedure At Trial
● Typical trial begins w/ arraignment of accused person, who answers “not guilty” to
charge read out to him/her
● Crown makes opening address
● Crown will provide trial judge w/ blueprint of evidence that Crown expects witnesses to
provide
● Crown will provide some sense of key issues expected to arise in relation to charge(s)
against accused person
● In many cases, admissibility of certain pieces of evidence will be issue but in jury trial
jury will not be apprised of such issues
● Jury will not know that accused/Crown disputed admissibility of some of potential
evidence in case except where qualifications of witness to give “expert” evidence are in
issue
● Admissibility of evidence - for trial judge to decide in absence of jury in hearing called
voir dire
The Voir Dire
● Logic & practicality require that issues of admissibility of evidence be resolved by trial
judge at earliest opportunity in trial
● If admissibility issues are only resolved after evidence in question has been provided by
witnesses, then trial judge will have to instruct jury to ignore such evidence
● Trial judges presumed to be fully capable of effectively ignoring evidence introduced into
trial but ruled by them to be inadmissible & instruct themselves to effect
● Law does not presume that juries can readily disabuse their minds of evidence ruled
inadmissible should they hear evidence for one reason/another
○ Depending on significance of evidence, mistrial might be only proper result
● Voir dires typically held at outset of trial in absence of jury so that trial can subsequently
proceed w/ all witnesses knowing what evidence they may & may not give & to minimize
risk of mistrial
● Usually held to determine whether confession voluntary * admissible, whether evidence
should be excluded under s.24(2) & so on
● In jury trial, jury leaves courtroom during voir dire & waits for completion
○ crown/accused will then identify for trial judge what evidence they claim to be
inadmissible & judge will declare voir dire in relation to evidence
● Neither accused person not Crown prosecutors have automatic right to have judge hold
voir dires
● If Crown requested voir dire, will lead evidence on issue of admissibility of evidence it
wants to tender & defence cross-examines Crown witnesses
● If accused testifies voir dire w/i his/her trial, evidence cannot be used against accused
during trial
find more resources at oneclass.com
find more resources at oneclass.com
● If trial judge rules evidence admissible in jury trial, witnesses will be allowed to provide
that evidence to jury
● If judge rules that certain piece of evidence not admissible in trial, jury must never hear
about evidence
● Voir dire to determine whether witness qualified to give expert testimony normally
conducted in presence of jury to enable jurors to decide how much weight to give to
expert’s opinion
Trial Proper
● After Crown makes opening address, Crown calls witnesses to testify
● Each Crown witness presents their evidence or evidence-in-chief & is cross-examined
by accused/by defence counsel
● If new matter arises in cross-examination/if there is some uncertainty in what was said,
Crown may re-examine witness
● After Crown’s case is in & before calling evidence, defence can make no evidence
motion to have charges dismissed on basis that there is no case to go to jury/to trial
judge in case of trial by judge alone
● If no evidence motion dismissed, defence still has option of calling evidence
● If defence plans to call evidence, defence counsel may give opening address & call
witnesses
● If defence witnesses are called, give evidence-in-chief & may be cross-examined by
Crown & re-examined by defence about anything arising from cross-examination
● After evidence in, Crown & defence counsel make their closing submissions
○ Try to convince judge that totality of evidence supports argument that accused
person should be acquitted, convicted as charged, or convicted lesser/included
offence
Reasons for Judgment
● In trial by judge alone, judge required to give reasons for judgment in order to inform
accused why conviction has been entered
○ Same requirement exists when accused acquitted so Crown has adequate
grounds to consider appeal
● When accused person/Crown prosecutor appeals adequacy of Reasons for Judgment,
reviewing court will apply functional test which asks whether appellate court could
meaningfully review correctness of decision
Right to Trial by Judge & Jury & Obligation of Trial by Judge & Jury
● Under s.11(f) of Charter, every accused except those charged under military law has
right to benefit of jury trial if charged w/ offence for which maximum punishment is 5
years or more
● Benefit is possibility of constitutionally sound jury nullification
find more resources at oneclass.com
find more resources at oneclass.com
● SCC recently confirmed there is no right to jury trial for provincial offences even if
accused face serious penalties, maximum penalty of 5 years less a day in prison, fine of
up to $5 million, or both
● CC makes jury trials obligatory for indictable offences as general rule
● Exceptions must be provided by law
● Fact that accused person may waive his/her right to jury trial under s.11(f) of Charter is
not exception provided by law to mandatory under CC
○ b/c Charter right & CC obligation each rooted in their own policy
● Both Charter right to jury trial & CC obligation of jury trial should be read in conjunction
w/ s.11(d) of Charter, which is right to be presumed innocent according to law in fair &
public hearing by “impartial” tribunal
○ Jurors constitutionally required to make their decisions impartially, or without
biases/prejudices
● If Crown proceeds by way of direct indictment, accused deemed to have elected trial by
judge & jury, but may re-elect to be tried w/o jury
● Necessity of gaining prosecutor’s consent to trial w/o jury in circumstances was removed
in 2008
● Crown can veto election/re-election of trial without jury if offence is punishable by more
than 5 years in prison & thereby force accused to have jury trial
● Accused persons risk losing right to jury trial if fail to appear for trial at scheduled time
● S.598
Qualification & Selection of Jurors
● First step - who is eligible to sit on jury & establishment of initial population from which
array/panel is chosen
● s.626(1) of CC delegates task to provincial govs except person cannot be
disqualified/exempted/excused from serving as juror in criminal proceedings on grounds
of his/her sex
● Array/panel drawn from list of eligible jurors by procedure varying from area to area
● All provinces disqualify ppl who work in CJS from serving on juries but other
disqualifications vary from province to province
● Persons convicted of criminal offences generally ineligible to sit on juries, but exact
nature of prohibition varies from province to province
Jury Vetting by Crown and/or Police
● Juries are supposed to be representative of community
● Authorities who create initial pool of eligible jurors not supposed to do so selectively
● Jury selection process supposed to be random
● Crown prosecutors & police officers occasionally seek out personal info/consider
personal info of potential jurors at initial jury pool compilation stage
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Typical trial begins w/ arraignment of accused person, who answers not guilty to charge read out to him/her. Crown will provide trial judge w/ blueprint of evidence that crown expects witnesses to provide. Crown will provide some sense of key issues expected to arise in relation to charge(s) against accused person. In many cases, admissibility of certain pieces of evidence will be issue but in jury trial jury will not be apprised of such issues. Jury will not know that accused/crown disputed admissibility of some of potential evidence in case except where qualifications of witness to give expert evidence are in issue. Admissibility of evidence - for trial judge to decide in absence of jury in hearing called voir dire. Logic & practicality require that issues of admissibility of evidence be resolved by trial judge at earliest opportunity in trial.
