The Criminal Trial

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The Criminal Trial - The Search for Truth and Justice

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The Criminal Trial

  1. 1. THE CRIMINALTRIAL The Search for Truth and Justice
  2. 2. The trial <ul><li>It is a solemn investigation by the State into the question whether the person charged has been guilty of a specified offence against the State, </li></ul><ul><li>a criminal prosecution is not a contest between the State and the accused in which the State seeks a victory, </li></ul><ul><li>it is the duty of prosecuting counsel to lay all the facts before the jury </li></ul><ul><li>those favorable to the accused as well as those unfavorable to him. </li></ul>
  3. 3. The purpose <ul><li>To determine the guilt or innocence of a person accused of a crime. </li></ul><ul><li>The normative, ideological purpose of a trial is equally if not more important than its guilt determination function, as the prosecution and trial of individual accused demonstrates to the community - teaching it - the limits of what conduct will not (and thus will) be tolerated. </li></ul><ul><li>Through the same process the community also sees that the state, via the criminal justice apparatus, is capable of fulfilling one of its fundamental obligations, the protection of individuals and of society (both from wrongdoers and from those who would seek their own revenge. </li></ul>
  4. 4. The objective <ul><li>Procedurally, the trial is framed as a contest between the state as the accuser and the individual who is accused, with the complainant or victim of the alleged crime serving only as a witness. </li></ul><ul><li>These procedural objectives surpass fact finding and guilt determination and include public acceptance because a trial must be seen to be both fair to the accused and to be effective in exacting justice in the name of those who have been wronged. </li></ul>
  5. 5. 100 Years ago: <ul><li>The accused had no counsel </li></ul><ul><li>The accused could not testify </li></ul><ul><li>That has changed: </li></ul>
  6. 6. THE ADVERSARIAL STRUCTURE <ul><li>Defence: </li></ul><ul><li>Right to Cross examine each witness: </li></ul><ul><li>Goal(s): </li></ul><ul><li>Something new </li></ul><ul><li>Explain/Weaken the version given in chief </li></ul><ul><li>Weaken Credibility </li></ul>Prosecution Witnesses: “in Chief” evidence on each “essential element” Defence Response Prosecution Case:
  7. 7. Case for the Defence Defence Right to cross examine any reply witnesses LIMITED RIGHT of the Prosecution to REPLY Prosecution __________ Right to cross examine Defence Witnesses ____________ After Prosecution “closes the case for the prosecution: the defence MAY (not MUST) call witnesses __________________ Defence Witnesses in Chief
  8. 8. ARGUMENT/ADRESSES Defence Last – if they did not call evidence – otherwise, Prosecution Last Defence first – if they called evidence – otherwise Prosecution First
  9. 9. THE RULES OF CONDUCT <ul><li>4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candor, fairness, courtesy, and respect </li></ul>
  10. 10. Role in Adversary Proceedings <ul><li>In adversary proceedings the lawyer's function as advocate is openly and necessarily partisan </li></ul>
  11. 11. Duty as Defence Counsel <ul><li>When defending an accused person, a lawyer's duty is to protect the client as far as possible from being convicted except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences including so-called technicalities not known to be false or fraudulent. </li></ul><ul><li>Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, or to the form of the indictment, or to the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence which, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that. </li></ul><ul><li>The lawyer should never waive or abandon the client's legal rights, for example, an available defence under a statute of limitations, without the client's informed consent. </li></ul>
  12. 12. The Prosecutor <ul><li>The prosecuting attorney represents the government in the prosecution of criminal offenses. </li></ul><ul><li>Depending on the particular American legal jurisdiction that public official may be called a City Attorney, County Attorney, District Attorney, State Attorney, Commonwealth Attorney or United States Attorney. </li></ul><ul><li>A public prosecutor in Canada may be called a Crown Attorney or Crown Counsel. </li></ul>
  13. 13. Duty as Prosecutor <ul><li>4.01 (3) When acting as a prosecutor </li></ul><ul><li>a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law </li></ul><ul><li>while treating the tribunal with candor, fairness, courtesy, and respect. </li></ul>
  14. 14. Duty as Prosecutor <ul><li>As the government’s lawyer in the prosecution of criminal offenses, the Prosecuting Attorney holds a very special place in the administration of justice . </li></ul><ul><li>The men and women who represent the government day in and day out before the courts have placed upon them a responsibility which is not borne by lawyers acting for private clients.   </li></ul><ul><li>In addition to being advocates, they have a quasi judicial role. </li></ul><ul><li>In the performance of that duty, they are called upon to make difficult decisions and to exercise that unique discretion which is theirs.  </li></ul><ul><li>  In doing so they must not only faithfully prosecute an individual case, but also uphold the integrity of the criminal justice system.   </li></ul><ul><li>Each one of them is required to be men and women of their word.   </li></ul><ul><li>The same is true of the the Government whom they represent.  </li></ul><ul><li>  It cannot be thought that the prosecutor's word is subject to change.  It can never be thought that the word of the prosecutor cannot be accepted at face value. </li></ul>
  15. 15. Duty as Prosecutor <ul><li>The word of the prosecutor is its bond.   </li></ul><ul><li>Cases where public feelings run high against a particular individual, sorely tests one's principles.   </li></ul><ul><li>But if the principle is right, then it must prevail because if that principle is abandoned in a particular case, then who can be sure that it will not be abandoned in another, and in another, until the time arrives when the word of the prosecutor is mere dross. </li></ul>
  16. 16. Daniel J. Brodsky <ul><ul><ul><li>Barristers Chambers </li></ul></ul></ul><ul><ul><ul><li>11 Prince Arthur Avenue </li></ul></ul></ul><ul><ul><ul><li>Toronto, Ontario M5R 1B2 </li></ul></ul></ul><ul><ul><ul><li>Telephone: (416) 964-2618 </li></ul></ul></ul><ul><ul><ul><li>[email_address] </li></ul></ul></ul>

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