THE CRIMINALTRIAL THE CRIMINALTRIAL

The Search for Truth and The Search for Truth and JusticeJustice

The trialThe trial

• It is a solemn investigation by the State It is a solemn investigation by the State into the question whether the person into the question whether the person charged has been guilty of a specified charged has been guilty of a specified offence against the State, offence against the State,

• a criminal prosecution is not a contest a criminal prosecution is not a contest between the State and the accused in between the State and the accused in which the State seeks a victory, which the State seeks a victory,

• it is the duty of prosecuting counsel to lay it is the duty of prosecuting counsel to lay all the facts before the juryall the facts before the jury

• those favorable to the accused as well as those favorable to the accused as well as those unfavorable to him. those unfavorable to him.

The purposeThe purpose

• To determine the guilt or innocence of a person To determine the guilt or innocence of a person accused of a crime.accused of a crime.

• The normative, ideological purpose of a trial is The normative, ideological purpose of a trial is equally if not more important than its guilt equally if not more important than its guilt determination function, as the prosecution and trial determination function, as the prosecution and trial of individual accused demonstrates to the of individual accused demonstrates to the community - teaching it - the limits of what conduct community - teaching it - the limits of what conduct will not (and thus will) be tolerated.will not (and thus will) be tolerated.

• Through the same process the community also sees Through the same process the community also sees that the state, via the criminal justice apparatus, is that the state, via the criminal justice apparatus, is capable of fulfilling one of its fundamental capable of fulfilling one of its fundamental obligations, the protection of individuals and of obligations, the protection of individuals and of society (both from wrongdoers and from those who society (both from wrongdoers and from those who would seek their own revenge.would seek their own revenge.

The The objectiveobjective

• Procedurally, the trial is framed as a Procedurally, the trial is framed as a contest between the state as the accuser contest between the state as the accuser and the individual who is accused, with the and the individual who is accused, with the complainant or victim of the alleged crime complainant or victim of the alleged crime serving only as a witness.serving only as a witness.

• These procedural objectives surpass fact These procedural objectives surpass fact finding and guilt determination and finding and guilt determination and include public acceptance because a trial include public acceptance because a trial must be seen to be both fair to the must be seen to be both fair to the accused and to be effective in exacting accused and to be effective in exacting justice in the name of those who have justice in the name of those who have been wronged.been wronged.

100 Years ago:100 Years ago:

• The accused had no counselThe accused had no counsel

• The accused could not testifyThe accused could not testify

• That has changed:That has changed:

THE ADVERSARIAL THE ADVERSARIAL STRUCTURESTRUCTUREProsecution Case:Prosecution Case: Defence ResponseDefence Response

Prosecution Prosecution Witnesses: “in Chief” Witnesses: “in Chief”

evidence on each evidence on each “essential element”“essential element”

Defence: Defence:

Right to Cross Right to Cross examine each examine each witness:witness:

Goal(s): Goal(s):

1.1. Something newSomething new

2.2. Explain/Weaken Explain/Weaken the version given the version given in chiefin chief

3.3. Weaken CredibilityWeaken Credibility

Case for the DefenceCase for the Defence

After Prosecution “closes After Prosecution “closes the case for the the case for the prosecution: the defence prosecution: the defence MAYMAY (not MUST) call (not MUST) call witnesses witnesses ____________________________________

Defence Witnesses in Defence Witnesses in ChiefChief

Prosecution Prosecution ____________________

Right to cross Right to cross examine Defence examine Defence WitnessesWitnesses

________________________

LIMITED RIGHT of the LIMITED RIGHT of the Prosecution to REPLYProsecution to REPLY

DefenceDefence

Right to cross Right to cross examine any examine any reply witnessesreply witnesses

ARGUMENT/ADRESSESARGUMENT/ADRESSES

Defence first – if they called evidence – Defence first – if they called evidence – otherwise Prosecution Firstotherwise Prosecution First

Defence Last – if they did not call evidence – Defence Last – if they did not call evidence – otherwise, Prosecution Lastotherwise, Prosecution Last

THE RULES OF CONDUCTTHE RULES OF CONDUCT

• 4.01 (1)4.01 (1) When acting as an When acting as an advocate, a lawyer shall represent advocate, a lawyer shall represent the client resolutely and honourably the client resolutely and honourably within the limits of the law while within the limits of the law while treating the tribunal with candor, treating the tribunal with candor, fairness, courtesy, and respectfairness, courtesy, and respect

Role in Adversary Role in Adversary ProceedingsProceedings

• In adversary proceedings the In adversary proceedings the lawyer's function as advocate is lawyer's function as advocate is openly and necessarily partisanopenly and necessarily partisan

Duty as Defence CounselDuty as Defence Counsel

• When defending an accused person, a lawyer's duty is to protect the client as far as 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 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 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 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-or the merits, a lawyer may properly rely on any evidence or defences including so-called technicalities not known to be false or fraudulent.called technicalities not known to be false or fraudulent.

• Admissions made by the accused to a lawyer may impose strict limitations on the 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 accused is guilty of the offence charged, but the lawyer should go no further than that.that.

• The lawyer should never waive or abandon the client's legal rights, for example, an 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.available defence under a statute of limitations, without the client's informed consent.

The ProsecutorThe Prosecutor

• The prosecuting attorney represents the The prosecuting attorney represents the government in the prosecution of criminal government in the prosecution of criminal offenses.offenses.

• Depending on the particular American legal Depending on the particular American legal jurisdiction that public official may be called jurisdiction that public official may be called a City Attorney, County Attorney, District a City Attorney, County Attorney, District Attorney, State Attorney, Commonwealth Attorney, State Attorney, Commonwealth Attorney or United States Attorney.Attorney or United States Attorney.

• A public prosecutor in Canada may be A public prosecutor in Canada may be called a Crown Attorney or Crown Counsel.called a Crown Attorney or Crown Counsel.

Duty as ProsecutorDuty as Prosecutor

4.01 (3)4.01 (3) When acting as a prosecutor When acting as a prosecutor

• a lawyer shall act for the public and a lawyer shall act for the public and the administration of justice the administration of justice resolutely and honourably within the resolutely and honourably within the limits of the lawlimits of the law

• while treating the tribunal with while treating the tribunal with candor, fairness, courtesy, and candor, fairness, courtesy, and respect. respect.

Duty as ProsecutorDuty as Prosecutor

• As the government’s lawyer in the prosecution of criminal offenses,As the government’s lawyer in the prosecution of criminal offenses, the Prosecuting Attorney holds a very special place in the the Prosecuting Attorney holds a very special place in the administration of justiceadministration of justice..

• The men and women who represent The men and women who represent the governmentthe government day in and day day in and day out before the courts have placed upon them a responsibility which out before the courts have placed upon them a responsibility which is not borne by lawyers acting for private clients.  is not borne by lawyers acting for private clients.  

• In addition to being advocates, they have a In addition to being advocates, they have a quasiquasi judicial role. judicial role. • In the performance of that duty, they are called upon to make In the performance of that duty, they are called upon to make

difficult decisions and to exercise that unique discretion which is difficult decisions and to exercise that unique discretion which is theirs. theirs. 

•   In doing so they must not only faithfully prosecute an individual In doing so they must not only faithfully prosecute an individual case, but also uphold the integrity of the criminal justice system.  case, but also uphold the integrity of the criminal justice system.  

• Each one of them is required to be men and women of their word.  Each one of them is required to be men and women of their word.  • The same is true of the The same is true of the the Governmentthe Government whom they represent.  whom they represent. •   It cannot be thought that the prosecutor's word is subject to It cannot be thought that the prosecutor's word is subject to

change.  It can never be thought that the word of the prosecutor change.  It can never be thought that the word of the prosecutor cannot be accepted at face value.cannot be accepted at face value.

Duty as ProsecutorDuty as Prosecutor

• The word of the prosecutor is its bond.  The word of the prosecutor is its bond.  • Cases where public feelings run high against Cases where public feelings run high against

a particular individual, sorely tests one's a particular individual, sorely tests one's principles.  principles.  

• But if the principle is right, then it must But if the principle is right, then it must prevail because if that principle is abandoned prevail because if that principle is abandoned in a particular case, then who can be sure in a particular case, then who can be sure that it will not be abandoned in another, and that it will not be abandoned in another, and in another, until the time arrives when the in another, until the time arrives when the word of the prosecutor is mere dross.word of the prosecutor is mere dross.

Daniel J. BrodskyDaniel J. Brodsky

Barristers ChambersBarristers Chambers

11 Prince Arthur Avenue11 Prince Arthur Avenue

Toronto, Ontario M5R 1B2Toronto, Ontario M5R 1B2

Telephone: (416) 964-2618Telephone: (416) 964-2618

DBrodsky@Daniel-Brodsky.comDBrodsky@Daniel-Brodsky.com