Chapters 8 + 9 + 10 - Defenses + Arrests, Searches, and Pre-Trial Procedures + Trial Procedures
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What are the duties of the defense counsel?
Represent the interests of the accused.
Develop a defense strategy.
Learn as much about the client and facts of the case as possible.
What are all possible defenses?
Alibi
Automatism
Mental Disorder
Intoxication
Mistake of Fact
Self-Defense
Duress
Consent
Legal Duty
Entrapment
What is double jeopardy?
Being tried twice for the same offense.
What is an alibi?
Proof that the accused was at another place at the time of the offense.
What is automatism?
If the offense occurred as a result of unconscious , involuntary behaviour due to illness or disease.
In law, what is considered a mental disorder?
When the accused must prove they have a “disease of the mind” that prevented them from realizing the consequences of the crime, slashing the mens rea.
What is intoxication?
The offense was committed while the accused was influenced by drugs or alcohol, illegal or legal. It is not a valid defense for most serious criminal offenses.
What is mistake of fact?
The accused honestly believed that nothing wrong was done due to the circumstances of crime.
(e.g. An accused murderer believed their gun wasn’t loaded.)
What is self-defense?
The extraordinary circumstance that the accused committed the crime in the act of defending themself (including property) from an attack. The main question of this defense is if the accused’s used force was necessary.
What is duress?
The accused was threatened into committing the offense. They must prove that they honestly believed the threats were real and would have been carried out if they did not commit the offense.
What is consent?
When the accused committed a crime when they honestly believed the victim had given consent for the activities to take place. Consent is a hard defense because it can be swayed by intoxication and escalation.
What is legal duty?
When the accused is a worker of the law and is permitted to use force beyond regular necessity to complete their job.
What is entrapment?
When the accused committed the offense due to police aid or encouragement.
What must police officers do when making an arrest?
Ensure the rights of citizens are preserved.
What is the main difficulty of the event of an arrest?
It’s challenging for the legal system to balance the rights of the accused person and the right of society to be protected.
What is an arrest warrant?
A formal declaration of the name of the accused, the offense that was committed, and the date the offense occurred. It orders the police to take the accused into custody.
What is an information?
A sworn statement describing how and when the accused broke the law, laid down by the investigating officer and given to the judge to decide if there should be an arrest warrant or not.
When is a person lawfully under arrest?
When they are:
Touched by a police officer.
Informed that they are under arrest.
Informed of the officer’s identity.
Informed of the reason for arrest.
Willingly going with the police officer.
When can an arrest without a warrant be made?
Someone is about to commit, is committing, or has committed a serious offense.
Someone who is actively committing a criminal offense.
The police officer honestly believes someone is named on an arrest warrant.
What is an appearance notice?
A notice that describes the name of the offense, the date the crime occurred, and the time and place at which the accused must appear in court.
What happens when the accused refuses to sign an appearance notice?
They can be arrested and be kept in custody until the arraignment hearing.
What is the purpose of an arraignment hearing?
To formally read the charges to the accused and for the accused to plea guilty or not guilty.
What is a summons?
A court order that states when and where the accused must go to face the charge.
What happens when the accused doesn’t attend their court date?
The judge can issue a bench warrant.
What is a bench warrant?
A court document allowing police to arrest the accused and hold them in detention until trial under the belief they will not attend their court date on their own.
What happens in a summons?
A police officer will swear an information before a justice of the peace.
If reasonable grounds that the accused has probably committed the crime is given, the justice of the peace can issue a summons.
When can a citizen’s arrest be made?
When a chase of the accused follows the incident.
A summary or hybrid offence is committed on the citizen’s property.
What is a citizen’s arrest?
A citizen lawfully making an arrest and handing the accused over to police.
How long can a citizen hold the arrested person in a citizen’s arrest?
Until police arrive.
What is obstruction?
When a person resists or deliberately attempts to prevent the officer from performing their duty, or when a person doesn’t assist an offer when they’re instructed to do so.
What are the rights of an accused person during their arrest?
The right to remain silent and not answer questions.
To be informed of the reason for their arrest without delay.
To examine the warrant.
To get legal counsel without delay.
To be informed of their right to receive legal counsel.
What is a line-up?
When an eyewitness is placed in front of a line-up of people and expected to identify the suspect out of them.
What are the obligations of an arrested person?
Must accompany the police officer to the police station.
Must submit to fingerprinting or photographing if the offense is indictable.
Must submit to a more thorough search.
What is a reasonable search?
Authorized by law.
Law itself is reasonable.
Manner in which the search was carried out is reasonable.
What are the three most common types of searches?
Of people.
Of homes.
Of businesses.
What is a search warrant?
A court order giving police the lawful right to search places.
Who are search warrants obtained by?
A judge or justice of the peace.
What must a police officer do to receive a search warrant?
Swear an information, name the place to be searched, the hours when it is lawful to search, and the item(s) the officer is looking for.
Communicating that same information under oath to a judge or justice of the peace by telephone. It must also include the reason why the officer can’t appear and can only be obtained for an indictable offense (telewarrant.)
What is a facsimile warrant?
A search warrant after the telewarrant is requested that must be presented at the scene of the search.
When is a search warrant not needed?
When a person is being arrested.
To ensure the arrested will not be a danger.
To discover any evidence before it can be hidden or destroyed.
What is electronic surveillance?
Using technology to intercept a suspect’s conversations and us it as evidence.
When is electronic surveillance legal?
When the police officer has the judge’s authorization.
When the police officer has the consent of the person involved.
When is electronic surveillance used?
When other types of surveillance have been tried and have failed.
When other procedures are unlikely to succeed.
When there’s urgency to the investigation.
What can the accused do if they’ve been subject to an illegal search?
Attempt to have the search warrant declared invalid.
Attempt to resist the search.
What is a promise to appear?
A document signed by the arrested promising to appear in court at the time and date of their trial.
What is a recognizance?
An agreement for the arrested to pay up to $500 if they don’t appear in court at the appointed time.
What are the reasons for an arrested person not to be released?
The threat they pose to others.
The concern they might reoffend.
The concern that they may flee and not appear to trial.
The concern for the public’s best interest.
What are some terms of release conditions?
Limiting the movements of the accused.
Requiring the accused to report regularly to a bail supervisor.
Ordering the accused not to associate with certain individuals.
Requiring the accused to leave their passport with the Court.
What is a surety?
A third party pr son who agrees to sign the recognizance order and pay the fine if the accused fails to appear for trial.
What is a deposit?
An initial payment of money given alongside the recognizance. The deposit is given back to the accused if they show up for trial, but kept by the Court if they don’t.
What is bail?
Release of an accused before trial with conditions.
When is bail denied?
When the functioning of the bail system is threatened by granting it to the accused.
There’s realistic speculation that the accused won’t return to court.
There’s realistic speculation that the accused may put the public at risk while released.
There’s realistic speculation that the accused may reoffend while released.
What is a preliminary hearing?
A hearing to determine whether there is enough evidence to follow through with a trial.
What is a pre-trial conference?
A conference between the judge, Crown prosecutor, and defense counsel to discuss any issues related to the trial.
What is plea bargaining?
A negotiation between the Crown and the accused to try and get the accused to plea guilty in exchange for a lesser form of sentence.
What are some results of a plea bargain?
A reduction in charge to a lesser offense.
A withdrawal of other charges or a recommendation not to proceed on other possible charges.
A recommendation as to the type of sentence.
A recommendation as to the severity of sentence.
Prosecution for a summary offense if it’s a hybrid offense.
What is an arraignment?
The first part of a trial. The court clerk will read out the charge, and the accused will plead guilty or not guilty.
What happens after an arraignment?
The Crown and the defense exchange witness and evidence information.
How does a trial start?
Opening statement by the Crown, then by the defense counsel.
What is the purpose of an opening statement?
To briefly state the case that will be presented.
What is a testimony?
Witness’ sworn statements.
What happens after opening statements?
The Crown begins examining their witnesses.
What are the rights of the witness?
An accused person doesn’t have to testify at their own trial as a witness.
A witness won’t have their witness used against them in a later trial.
What is a subpoena?
A document forcing a witness to appear to trial.
What happens if a witness doesn’t show up to court?
They can be found in contempt of court, and a fine or imprisonment can follow.
What is an affirmation?
Something for a witness to swear on in order to take oath before they testify.
What is perjury?
A witness knowingly making a false statement while under oath, punishable relating to the severity of the crime.
What is an examination-in-chief?
The Crown’s or the defense counsel’s first examination of witnesses. All witnesses will state what they know about the facts relating to the charge.
What happens after an examination-in-chief?
The defense counsel may cross-examine the Crown’s witnesses to show any weakness in the case and try to prove the witnesses to be uncredible.
What happens after the defense counsel’s first cross-examination?
The Crown may re-examine their witnesses to clarify any issues brought up by the defense counsel.
What happens after the Crown’s first re-examination?
The defense can cross-examine again, or the Crown’s case can rest.
What is a motion for dismissal?
A request for the case to be dismissed if the defense counsel believes the Crown’s case hasn’t been proven beyond a reasonable doubt.
What happens after the Crown’s case rests?
The defense counsel can file for a motion for dismissal or examine their own witnesses.
What happens after the defense counsel’s examination-in-chief?
The Crown may cross-examine the defense counsel’s witnesses.
What happens after the Crown’s first cross-examination?
The defense counsel may re-examine their witnesses.
What is a directed verdict?
The judge’s instruction/advice to the jury to return a verdict of not guilty if the case hasn’t been proved beyond a reasonable doubt.
What happens after the defense counsel’s first re-examination?
The Crown may continue cross-examining, or the defense counsel may rest.
What happens when the defense counsel’s case rests?
The Crown may make their rebuttal.
What is a rebuttal?
After the defense counsel’s case rests, the Crown may rebut their evidence by presenting evidence that contradicts the defense counsel’s evidence.
What is a surrebuttal?
The defense counsel’s chance to restate its case and contradict the Crown’s rebuttal.
What happens after the Crown’s rebuttal?
The defense counsel can make a surrebuttal.
What is a voir dire?
A small trial held within a larger trial relating to the admissibility of evidence.
What is direct evidence?
The “ultimate fact” of the crime. Often the testimony of an eyewitness to the crime.
What is circumstantial evidence?
Indirect evidence that leads to a reasonable inference of guilt.
What are the 6 types of evidence?
Expert Evidence
Photographic and Recorded Evidence
Similar Fact Evidence
Character Evidence
Hearsay Evidence
Confession
What is expert evidence?
The person giving the testimony is an expert on the subject of the evidence.
What is photographic and recorded evidence?
Evidence captured by camera or recorder. It must be proven to be an accurate representation of the facts depicted. It’s admissible in court if the people being taped don’t have a reasonable expectation of privacy.
What is similar fact evidence?
Any similarities between an accused’s past criminal acts to the current crime can be presented.
(e.g. the Zodiac Killer’s particular element in each crime is similar fact evidence.)
What is character evidence?
The accused’s issue of good character and reputation as a way to claim innocence. Character evidence can only be brought up by the Crown if the accused uses it first in contradiction.
What is hearsay evidence?
The evidence of someone who isn’t a witness who said or wrote something out of court that may be relevant to the facts of the case. Often related to private conversations that have been overheard.
What is a confession?
A statement of guilt given by the accused when confronted with an accusation of guilt. This is considered direct evidence. It may not be reliable when obtained under duress or pressure.
What happens after the defense counsel’s surrebuttal?
The closing statements.
Who goes first in the closing statements?
If the defense counsel presented evidence during the trial, the Crown will make the first closing statement. If the defense counsel didn’t present evidence, they will make the first closing statement.
What happens after closing statements?
If there is a jury, the judge makes a charge to the jury and the jury will reach a verdict. If there is no jury, the judge will reach a verdict.
What is a charge to the jury?
The instructions given by the judge to the jury on how to reach their verdict depending on the application of law during the trial.
What is a verdict?
The final decision of guilty or not guilty at the end of a trial.
What is a hung jury?
If, after a long period of deliberation, the jury can’t come to a unanimous decision, a new trial is ordered.
When can an accused be tried twice for the same crime?
If they appeal their verdict, it’s accepted, and a re-trial is ordered.
What is an appellant?
The accused that is appealing their verdict.
What is a respondent?
The side responding to the accused’s appeal.