Share on Facebook Important Principles in Criminal Trials
The Presumption of Innocence
This is the famous"Golden Thread" that runs through the criminal law of the English-speaking world. An accused person is presumed innocent until proven guilty according to law in a fair and public hearing of an independent tribunal.
The Particulars of the Charge
The accused person must know what he or she is charged with, so that full "answer and defence" can be made. This means that there must be enough "particulars" (details as to time and place, acts complained of, damage caused, Criminal Code sections violated, etc.) in the charge to avoid unfair surprises at trial.
Presence of the Accused at Trial
Generally, an accused person is entitled to be in court for the whole trial, as well as for any preliminary hearings, so as to be able to confront his or her accuser, and to make full answer and defence.
Public Trial
Generally, too, a trial is open to the public. This is important if justice is to be "seen to be done", even though it can sometimes be painful or embarrassing for some of the people involved.
Prosecution Must Raise a Prima Facie Case
What this means is: since the Crown has brought this accusation to the court, the person it is accusing does not have to say a word in his or her defence until the Crown has placed evidence before the court which, if accepted, could justify a conviction. The prosecutor, in effect, has to justify the charge before the accused has to answer it.
Proof Beyond a Reasonable Doubt
Further, the prosecutor must prove the Crown's case beyond a reasonable doubt. The judge or jury is not just to decide whether the accused is more likely guilty or more likely innocent. There must be convincing proof of guilt. Of course, there might always be some tiny doubt, but for this to result in an acquittal, it must come from something more solid than mere speculation.
Whether there is or is not a reasonable doubt is, of course, for the judge or jury to say, and being a subjective personal judgment, is always open to disagreement (especially by someone who knows or feels he or she is innocent, but has just been found guilty!). Still, that's the way the system works, and it's a lot better than one that just weighs the prosecution and defence cases in the balance and decides which is more plausible. Our society has decided (supposedly) that, as a general rule, it is better to fail to convict some guilty people than to send innocent people to prison. The reasonable doubt rule, amongst others, reflects that decision.
As for people who think rules like this favour the accused too much, they should perhaps bear in mind that we are still convicting a significant number of innocent people.
Witnesses
The accused person has the right to cross-examine any witness called by the Crown to give evidence, to call his or her own witnesses, and to testify himself or herself, if he or she wants. In general, the judge or jury is to give a verdict based only on the sum of this evidence given during the trial.
Witnesses, generally, are only allowed to testify to what they know from their own experience, not to facts told them by others, nor to their personal opinions. They are not to give speeches, nor argue with counsel or the judge. Just about anyone is allowed to testify in a criminal trial, so long as their evidence is relevant and they are called by one side or the other, and just about any witness - with the important exception of an accused person or his or her spouse - can be required to come and testify by either side.
A witness cannot refuse to answer for fear of self-incrimination. The rule in Canada is that the witness must answer, but should state his or her objection. Any evidence given can then not be used against him or her in a later trial, if there is one (actually, now we have a Charter of Rights, it really is not even necessary to object).
The Prosecutor
The job of Crown Counsel (the prosecutor) is not well understood by the public. Even though our system of justice is adversarial, with representatives from two opposing sides arguing before an impartial judge or jury, there are limits on just how adversarial the prosecutor should be. His or her duty is not to see that the accused is convicted, but to see that justice is done. This means that the prosecutor should call all relevant witnesses and evidence, even if favourable to the accused. He or she is to treat all witnesses, including the accused, with moderation and fairness. Some prosecutors fill this role better than others...
Defence Counsel
The job of the defence lawyer is also commonly misunderstood. Above all, it is to make sure that the accused is not convicted unless the prosecution proves its case, using only evidence that is fairly and legally obtained and presented. It is NOT defence counsel's job to decide in advance whether the accused is guilty, and then refuse to defend those who appear to be guilty. To quote an English Law Lord of the last century:
"A man's rights are to be determined by the Court, not by his attorney or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their opinions. A client is entitled to say to his counsel, I want your advocacy, not your judgment; I prefer that of the Court."
Every person accused of a crime is entitled to a fair trial, and the defence lawyer is sworn to do everything he or she legitimately can to ensure this is what happens. If the prosecution cannot prove its case beyond a reasonable doubt (possibly because there is simply not enough evidence, or because the evidence was obtained illegally by the police), then the accused person is entitled to be acquitted, no matter how much everyone may suspect he or she is guilty. There must be justice, not just in individual cases, but in society as a whole, and this implies a strict requirement that the forces of law and order themselves obey the law.
Defence lawyers, just like prosecutors, are also dedicated professionals who have sworn an oath to uphold the law. Their job creates a constant tension between striving for the maximum benefit for their clients, and ensuring that they are always within that law, acting not just legally but ethically. Once swept up into the criminal justice system, an accused person is often completely at a loss to understand what is happening, and typically has no-one else on his or her side. The defence lawyer carries an almost impossibly heavy burden, combining a duty to provide every possible protection for the accused while staying strictly within the limits of the role of an officer of the court, with all the personal feelings and opinions about the case he or she has as an ordinary person and member of society.
The Judge
In our system, unlike the Continental European one, the judge is not supposed to play the detective, and go searching after the truth. He or she is to act as an umpire between the prosecution and the defence as THEY search for it. Having impartially guided everyone through a fairly-conducted trial, it is then up to the judge, either to decide on the question of guilt, based on all the evidence the two sides have presented, or to leave the question with the jury, if there is one. If there is a jury, the judge has one further task, and that is to instruct the jury on whatever parts of the criminal law apply to the case, and make sure they know that their decision must be made according to that law.
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FIRST LINE CRIMINAL LAW INFORMATION