Judge Alone Criminal Trial Procedure

I want to talk to you today about criminal trial procedure and this is a judge alone trial. So it’s a judge alone trial in the Ontario court of Justice or the higher court, which is the Ontario Superior Court of Justice. So how does a trial proceed. What are the steps? I will just go over the basics very simply so you understand the steps that are involved.  Well first of all, many trials, not all, have what are called pretrial applications. And this is, this is really part of the trial, called pretrial applications, it’s part of the trial process, I might add, so those are such things where the defence counsel is for example, trying to exclude evidence, it’s like whether they are trying to throw out a breath sample, throw out a confession, and there’s often written argument done, sometimes evidence is called in these and sometimes not, and this can sometimes be argued even before the trial date.  So you might have a pretrial applications set thirty days before the actual trial date, or as part of the trial proper, even before the trial starts, or sometimes even during the trial. For example, Charter application, which are trying to throw out evidence, they are part of the trial proper, can be argued as part of the trial, or the beginning of the trial, it really depends, so once the actual trial starts where you are calling evidence, how does that work? So the Crown has the burden of proof, proving their case beyond the reasonable doubt. So the Crown will call, all of their witnesses, so let’s take their first key witness, a complainant for example, in a sexual assault trial. They will call that witness, they will typically go through their evidence, in chronological order,   from start to finish and that is called an examination in chief.  Those questions can be “who, what, when, where, why type questions. In other words, you cannot put words in the witnesses mouth, you cannot lead them,  you have to ask them, what happened, where were you, who were you with, what were you wearing, those types of questions. As opposed to leading questions, the defence counsel can then do cross examination of that witness, and the goal their of course is to challenge their credibility, and reliability of the witness, that is done through leading questions which suggest the answer.  For example, the ball was red, correct? Or the ball was red. You’re getting into a rhythm where you are not having to say “correct. You are just making declarative statements, that’s my technique, which the witness, you’re directing the witness, of certain areas okay. And that’s called cross examination, it’s an art form, it’s a very powerful tool.  If you see a good criminal lawyer do it, you will see the steps that are involved, the cleverness of setting up the witness, to attack their credibility and reliability in any criminal case. At the end, your cross examination of defence counsel, the Crown, if things need to be clarified or issues arose which the Crown could not have anticipated, during examination in chief , they are allowed to re-examine the witness, but again, they have to use open ended questions, “who, what, when, where, why,”  So that pattern continues, until the Crown presents all of their evidence. Including documentary evidence, photographs, you name it, usually done through witnesses of course. That’s called “viva voce” evidence by the way, a Latin term for evidence in person, testify in person.  Now at the end of the Crown’s case, let’s say they called five witnesses, and it takes two or three days, on a slightly longer case, some case, takes weeks, some cases take one day, the defence counsel also has to ask himself, or herself, there’s a test, should I apply for a directed verdict, that’s a motion for non-suit, it means there’s no evidence here, there’s no case that the judge needs to consider. So the test is, that you would ask themselves, is there some evidence, upon which a jury or judge, properly instructed, could convict.   It’s a very low level test, some evidence could convict, you know, most cases, there’s not going to be as successful, directed verdict, I only make a directed verdict, if I’m sure I am going to win that, or even a grey area, sometimes when it’s in a grey area, or even leaning towards not the grey area, because sometimes the judge will sometimes give me a hint. “Well I don’t agree that it’s a directed verdict, Mr. Kruse, but do you really want to call your client to testify?”  In other words, he is giving you hint that you already won. You know there’s reasonable doubt, so, it’s a useful tool, but you don’t want to bring a directed verdict, and there’s absolutely no chance, and then it becomes ridiculous, to you know, at that point.  So let’s assume there’s no direct verdict, there is a case that the judge could convict on, now you have to make a decision as defence counsel, do I call the client to testify. Very difficult decision, is there enough reasonable doubt, without calling the client, to testify? They have the right to remain silent. So let’s assume you call the client. You call the client, same pattern, examination in chief, by you, “who, what, where, when, why “by the defence counsel.  Crossed examinations with leading questions, by the Crown, re-examination if necessary, by the defence counsel, and that goes for all of the other witnesses you may call. At the end of all of that, process, in other words, the pattern repeats itself, examination in chief, cross examination, re-examination, at the end of all that process, the Crown could call potentially a reply evidence, but that’s very limited to the defence.  It’s very limited it’s not often called but occasionally it is. Then now that completes the trial evidence, if there’s reply evidence or no reply evidence, the trial completes, in terms of the evidence at least, the trial still continues, but the evidence completes, now it’s up to final submissions. So the defence lawyer goes first if they called evidence, and they submit about the facts of the case, make final submissions, about the facts, and apply the law,  they may present case briefs, etc,. arguing that there’s a reasonable doubt, and the judge should acquit on some or all of the charges, and similarly the crown, after that, then makes their closing arguments, based on the facts, and the law, and that could be very involved, and detailed process.  Sometimes closing arguments can take hours, sometimes not, depending on the complexity of the case, and then the judge has to make a decision, which is called the judgement essentially is called, and in most cases, the judge will not make, even on a one day trial that finishes on say  four o’clock in the afternoon, most judges just take time to make that decision , get all the facts, and law straight so they usually can go over another day, it’s very rare to have them make that decision on that same day. So there you have it, that’s the criminal trial procedure, here in a quick nut shell, there’s a lot more complexity to that to it but those are the steps in a basic criminal trial.