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THE CRIMINAL TRIAL PROCESS (Law in Action, Blair, pp.174-183)
As mentioned earlier, a criminal trial is an adversarial process that pits the crown against the
accused. Section 11 (d) of the Charter of Rights and Freedom states that each person charged with an
offence is to be "presumed innocent until proven guilty according to law." This presumption of
innocence is on If Canada's most fundamental legal principles, and it places the burden of proof
squarely on the Crown. The burden of proof means that the Crown has the obligation to prove the
guilt of the accused; it is not up to the accused to demonstrate innocence. According to a long-standing
tradition of common law, proof of guilt must be beyond a reasonable doubt.
The trial begins with the judge explaining the jury's role as the trier of facts. Then the judge asks the
12 jurors to select a foreperson who will represent them and communicate with the judge. The
foreperson will also lead the other jurors through their deliberations and, at the trial's conclusion, will
inform the court of their verdict.
The Crown's Opening Statement
The Crown presents its case before the defence because it has the burden of proof, so the trial
always begins with an opening statement by the Crown. This statement identifies the offence
committed, summarizes the evidence against the accused, and outlines the way the Crown will present
its case. The jury is not meant to consider the opening statement as evidence; the Crown will introduce
evidence only after its opening statement is complete. Most of the evidence in a criminal trial is
presented through witnesses.
Examination of Witnesses
The first examination of a witness is called a direct examination, or an examination-in-chief. The
Crown will ask each witness to tell what he or she observed about the crime. After the direct
examination, defence counsel may cross-examine the witness. The purpose of a cross-examination is
to test the accuracy of the evidence or to convince the jury that there are contradictions in the witness's
testimony that weaken the Crown's case.
The Defence Responds
When the Crown has finished calling its witnesses, the defence may bring a motion for dismissal if
counsel believes that the Crown has failed to prove guilt beyond a reasonable doubt. As trier of the law,
the judge may agree with the defence and will withdraw the case from the jury to enter a directed
verdict of not guilty.
If the judge does not dismiss the charges, and the accused pleads not guilty, the trial must continue.
The defence begins by summarizing its case in an opening statement. The defence may choose to call
witnesses to refute testimony provided by the Crown's witnesses or to show reasonable doubt. The
procedure of direct examination (this time by the defence) and cross-examination (this time by the
Crown) is repeated. The defendant may choose to testify on his or her own behalf but, according to s. I
I (c) of the Charter of Rights and Freedoms, "cannot be compelled to be a witness."
After the defence has presented all its evidence, the Crown has the opportunity to rebut, or
contradict, any new evidence the defence has introduced. Defence counsel can then present further
evidence for a surrebuttal, a contradiction of the Crown's rebuttal.
The Rules of Evidence
During the trial, either the Crown or the defence may object to questions asked by the opposing
attorney or to answers provided by witnesses. When an objection is made, the judge rules on whether
the evidence in question is "admissible," that is, whether it may be accepted by the court. Following arc
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some of the most common grounds for objection in a criminal trial.
A leading question suggests to the witness a particular answer. During direct examination, it is
generally not permitted to ask a witness a leading question unless it involves a fairly unobjectionable
matter, such as establishing the age of a witness (e.g., "You are 21 years old, aren't you?"). But
concerning the more contentious issues of a direct examination, Crown or defence counsel would not
be allowed to ask a question such as, "Wasn't it Tom you saw holding the knife and stabbing AI?" The
question would have to be reworded; for instance, "What did you see Tom do to AI?" This question
does not suggest an answer but asks for an explanation of what occurred.
In cross-examination, counsel would be allowed to ask a leading question as long as it pertained to
previous testimony: "You want this court to believe you saw Tom stabbing AI?" This question refers to a
fact-the witness saw Tom stabbing Al-a fact that was already established in the direct examination.
An attorney may ask a witness only about what the witness saw or experienced first-hand, not about
something he or she heard from a third party. For example, if a witness said, "Ann told me that she saw
Tom stab AI with a knife," this statement would be hearsay evidence, and it would not be admissible in
Defence counsel or the Crown cannot ask a witness to give an opinion about a matter that goes
beyond common knowledge unless the witness is a recognized expert in the field. For example, any
eyewitness can give an opinion about the car at the crime scene. But only an expert-for instance, a car
mechanic who was allowed to examine the car-could give an opinion about the condition of the car's
Immaterial or Irrelevant Questions
An immaterial or irrelevant question has no connection with the matter at hand; as a result, it is
considered inadmissible. For example, in a murder trial, if defence counsel asks the investigating officer
a question about his personal life, the question may be dismissed as irrelevant if it has no bearing on
Sometimes the Crown or defence counsel will question a witness and receive a reply that does not
really answer the question. This is called a non-responsive answer. When this happens, counsel may
ask the judge to direct the witness to answer the question properly.
Types of Evidence
As noted previously, evidence is the information that will prove or disprove disputed facts presented
in a court of law. All evidence must be "material"-it must be important and relevant to the case in
question. Evidence is considered relevant if it has probative value, that is, if it tends to make more or
less probable a certain fact pertaining to the guilt or innocence of the accused.
Direct evidence is the testimony given by a witness to prove an alleged fact. The most common type
is an eyewitness account of a crime. For example, in a robbery case, Beatrice's testimony that she saw
Samir assault Dawn and steal her purse would constitute direct evidence. But even direct evidence can
be challenged. Samir's lawyer might rebut the evidence by proving that Beatrice has poor vision and
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left her glasses home on the day in question.
If there is no one to provide eyewitness testimony, the offence may be proven by circumstantial
evidence. Suppose no one saw Samir assault Dawn and take her purse, but the investigating officer
found the purse in a nearby trash can and it was covered with Samir's fingerprints. Also, a witness
testifies that he saw Samir in the area at the approximate time the crime took place. This testimony
might allow the judge or jury to infer, or conclude from the evidence, that Samir robbed Dawn.
Circumstantial evidence is generally admissible in court unless the connection between the
evidence and the inference is too weak to help decide the case. In determining the admissibility of a
piece of evidence, the judge must be convinced that the defendant's guilt is one of the conclusions that
could be drawn from the evidence.
Character evidence establishes the likelihood that the defendant is the type of person who either
would or would not commit a certain offence. Generally, the Crown is not allowed to attack the
defendant's character. This rule guards against the jury's tendency to infer that because the defendant
has a "bad character," he or she must be guilty. Defence counsel, on the other hand, is permitted to
introduce evidence of the defendant's good character to convince the jury that he or she is not the type
of person who would have committed the offence. Once defence counsel introduces this type of evi-
dence, however, the Crown is allowed to rebut it by presenting contradictory evidence.
The Crown is allowed to introduce evidence of the defendant's past convictions. Such evidence is
not to be used for the sake of attacking the defendant’s character but only for testing the defendant's
credibility, that is, the likelihood of whether he or she is telling the truth.
Technological advances have allowed the police and other law enforcement agencies to benefit from
highly sophisticated surveillance devices. Electronic surveillance is the use of any electronic device to
overhear or record communications between two or more people. Wiretapping and bugging are two of
the most common methods of electronic surveillance.
Wiretapping is the interception of telephone communications, generally at a point some distance
away from the target premises. Bugging is the recording of a speaker's oral communication by means
of an electronic device that overhears, broadcasts, or records that communication. Bugging devices
may be installed in cars or buildings and are very effective in recording conversations that take place
within range of the device. Generally, any evidence obtained by wiretapping or bugging is admissible in
court only if the interception is authorized beforehand by a judge. Exceptions occur in cases where a
police officer believes the situation is an emergency or where the interception is necessary to prevent a
A polygraph or "lie detector" is a machine that allows a skilled examiner to detect physical signs that
indicate deception on the part of the person being tested. The machine measures changes in pulse,
respiration, and blood pressure. The examiner begins the test by asking the person control questions
that have been designed to elicit answers that the examiner knows are untrue. The examiner carefully
observes the person's physical reaction when making these untruthful responses and then observes
whether the same reactions take place when this person is asked about the criminal charges in
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The main weakness of a polygraph test is that its accuracy depends on the competence of the
examiner. Over time, even a highly skilled examiner will have an accuracy rate of less than 100
percent. For this reason, the results of a polygraph test are not admissible evidence for determining
whether a defendant is lying or telling the truth about a particular crime. However, the
Crown may introduce as evidence anything the defendant says during the course of the exam.
Fast Fact: An average polygraph test lasts 2-3 hours. This period includes a 45-90 minute pretest
interview, during which all the questions that will be asked during the actual test are reviewed.
A voir dire is a mini-trial that takes place during the trial. The jurors are escorted from the courtroom
and asked to wait in the jury room. Then the judge, the Crown, and the defence discuss the issue that
is keeping the trial from moving forward, such as whether a particular piece of evidence is admissible.
One of the most common reasons for a voir dire is to determine whether a defendant's confession was
given voluntarily. In this situation, the defendant or other witnesses may be called to testify. After
hearing arguments from both sides, the judge will decide whether the evidence is admissible in whole,
in part, or not at all. Then the jurors are summoned back into the courtroom, and the trial resumes.
Fast Fact: The term voir dire comes from Old French, meaning, "to speak the truth."
Summary of the Case
After all the testimony has been given, each counsel presents a summary of the case in the form of
closing arguments. If the defence called witnesses during the trial, then defence counsel closes first. If
not, the Crown closes first.
The Crown will attempt to show that the defendant's guilt has been proven beyond a reasonable
doubt. The defence will try to show that the Crown has failed to establish mens rea or actus reus,
thereby demonstrating that a reasonable doubt does exist. The closing arguments are not to be
considered as evidence, but are intended to help the jurors better understand the issues involved in the
Charge to the Jury
After the summaries by opposing counsel, the judge gives a charge to the jury-an explanation of
the law and instructions on how the Jaw applies to the case before them. The judge will also advise the
jurors on how to consider the evidence and how to return a verdict in accordance with the law. The -
judge must be very careful in making the charge to the jury. If the charge is deficient in any way, it may
form the basis for an appeal of the verdict. In fact, a deficient charge is the most common basis for a
successful appeal. After the 'charge has been given, the sheriff escorts the jurors to the jury room.
There the jury members will deliberate on their verdict.
As explained earlier, it is the judge's role to decide on matters of law and the jury's task to decide on
matters of fact. While the judge rules on what evidence is admissible, the jury decides on what
evidence is believable. If the jurors believe the accused, or if they do not know whom to believe, they
must acquit. If they do not believe the accused but are left with a reasonable doubt regarding the
defendant's guilt, the jury is obliged by law to return a verdict of not guilty.
Once the verdict has been reached, it is read in open court. Both the Crown and the defence have the
right to ask that the jury be polled-each jury member must stand and confirm his or her agreement with
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the verdict. A jury’s verdict must be unanimous. A jury that cannot reach a unanimous decision is called
a hung jury. In this situation, the jury is discharged, and a new jury is selected to try the case again.
No legal system is free from error. For this reason, the right to appeal is an important safeguard in
Canada's adversarial system. Usually, a notice of appeal must be filed within a short period of time, in
most cases within 30 days. The appeal is then heard in an appeals court, which has the authority to re-
view the decision and make one of the following rulings: a) to affirm the lower court's decision; b) to
reverse the lower court's decision; or c) to order a new trial.
In a criminal case, either the defence or the Crown can appeal a decision it considers improper.
Either side can also appeal the sentence given to a defendant found guilty. For example, an accused
may ask the appeals court to reduce the sentence, or the prosecution may ask to have the sentence in-
creased. The side that files the appeal is called the appellant; the side that responds to the appeal is
called the respondent.
An appeal is generally heard by a panel of three or five judges. Witnesses do not usually testify
again. Instead, the attorneys use the trial transcript, exhibits from the trial, and legal arguments
prepared for the appeal. The appeals court then decides whether any errors in law have been made.
The court's verdict does not have to be unanimous; a majority decision is sufficient. The majority
usually explains its decision in writing. Dissenting judges can also issue written opinions explaining why
they did not hold with the majority.
Building Your Understanding
1. Distinguish between a direct examination and a cross-examination.
2. List three grounds for objection and briefly explain each.
3. Under what circumstances may leading questions be asked?
4. When may a witness offer an opinion?
5. Explain the difference between direct and circumstantial evidence, and provide an example of each.
6. When is circumstantial evidence admissible?
7. Define character evidence. When is it admissible? Why might counsel use character evidence as
testimony for the defence?
8. Why is it necessary to obtain a judge's authorization for electronic interception or surveillance?
9. What is the main weakness of a polygraph test?
10. List three possible decisions the higher court may make after hearing an appeal.
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