7.2 - Criminal Trial Process

Importance of Criminal Trial Process

Criminal trials are conducted in such a manner so as to arrive at a verdict that is fair - both to the accused, and to society.  The procedures that are followed for criminal trials have been established from statute law, case law, and the Charter of Rights.  This section will focus on the typical criminal trial process, as well as the rules of evidence.

Burden of Proof

During section 6.1 (Criminal Investigations), it was noted that Canadian criminal law is founded on two key legal principles.  These principles are that people are innocent until proven guilty, and that guilt must be proven beyond a reasonable doubt.  Therefore, if people are innocent until proven guilty, the Crown has the burden of proof.  Burden of proof is the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt.  The following discussion about the process of a criminal trial is based on the two key principles above.

Criminal Trial Process - Big Picture

The process of a criminal trial can be summarized in the following steps:

Criminal Trial Process - Details

A criminal trial begins with the Crown’s opening statement.  The Crown's opening statement includes naming the offence committed, presenting a summary of the evidence that Crown will present, and also generally how Crown will present the case.  After this short trial introduction, the Crown will begin its direct examinations.  Direct examination is the first questioning of a witness to determine what he or she observed about the crime.  Crown counsel will ask the witness questions that will result in responses that will help to prove the guilt of the accused.  So, all of the witnesses that the Crown will question are ones that will help the Crown’s case.  Once the Crown has finished the direct examination of their first witness, then the defence will conduct their cross examination.  Cross examination is the second questioning of a witness to test the accuracy of the testimony they’ve provided.  During cross examination, the defence will ask questions of the witness to try to find any contradictions or inaccuracies in the evidence that they’ve provided.  This process of direct examination and cross examination continues until all of the Crown’s witnesses have been interviewed by both sides.

The fourth step in a criminal trial is a motion for dismissal.  This step doesn’t always happen, but when it does, it refers to the defence making a formal request to the judge that the charges be dropped.  A motion for dismissal may happen at this stage because, after hearing all of the Crown’s evidence (witnesses), the defence may argue that there isn’t sufficient evidence from Crown to result in a guilty verdict.  If the judge agrees, then the charges will be dismissed and the trial is over.  However, if the judge disagrees and perceives that there is enough evidence to proceed, then the trial continues to step five.

Step five in a criminal trial has the defense making their opening statement.  These statements include a summary of the arguments to be used by the defense.  It is interesting to note that the defense doesn’t even begin directly addressing the court until the trial is almost half over.  This is more evidence that the burden of proof in criminal trials rests with the Crown.  After providing an opening statement, the defence then proceeds to direct examination of their first witness.  The Crown will then cross examine this witness.  This process of defence direct examination of a witness, followed by crown cross examination of the same witness, will continue until all of the defence’s witnesses have been questioned by both sides.  By this time, most of the trial has been completed, except for some final and closing arguments.

Step eight in the trial is the Crown rebut.  The Crown rebut is an opportunity for the Crown to contradict any evidence that has already been introduced by the defence.   After this, the defence has an opportunity to reply to the Crown's rebut.  This step is called the defence surrebuttal.  Once this ninth step has been completed, no new evidence may be presented or argued by either side.  The final two steps in a criminal trial are the closing arguments.  Defence goes first, and presents a summary of their arguments in one final attempt to raise doubt as to guilt of the accused in the mind of the judge or jury.  Next the Crown presents its closing arguments.  These final statements from the Crown are intended to review the evidence that they have already presented in order to convince the judge (or jury) that the accused is guilty beyond a reasonable doubt.  Once the closing arguments have been delivered, the trial is over.  Now it is up to the judge or jury to deliberate, and arrive at a verdict.  Verdicts are delivered anywhere from immediately, to several weeks after the trial has ended.

Rules of Evidence

From time to time during a trial, lawyers may question the validity of evidence presented by their opponent.  When this happens, the other side may “object” to the evidence, and then the judge rules whether that evidence will be admissible (allowed) or not.  There are five main grounds for objections that may be voiced by either side.   The first one is leading questions.  A leading question is a question worded in a way to elicit a specific response.  For example, “so you hate Bob, right?”  The second one is a hearsay statement, which is evidence given by a witness based on information they received from a third party.  For example, “Terry told me Larry stabbed Bob”.  The third ground for objection is an opinion statement.  These are opinion statements made by regular people, instead of knowledgeable statements made by recognized experts.  For example, an accountant could not speak to the specifics of someone’s mental health, but a clinical psychologist could.  Fourth, are immaterial or irrelevant questions.  These questions have no direct application to the case at hand.  An example of these could be simply any question that is totally off-track and random.  Finally, the last common source of objections are non-responsive answers.  This is when a witness provides an answer that doesn’t directly answer the question that was asked.  An example here might begin with a question like, “what time did you get home on March 5th?”.  A non-responsive answer might be, “I went straight home after work”.  This answer did not directly answer the question.

Types of Evidence

All evidence that is presented in a criminal trial should be material evidence, meaning that it must be directly related to either proving or disproving the guilt of the accused.  There are several different types of evidence that may be presented.  The first type of evidence is direct evidence.  Direct evidence is the testimony given by a witness to prove an alleged fact.  An example of direct evidence would be a doctor providing evidence as to the physical condition of an assault victim.  The second type of evidence is indirect evidence, also called circumstantial evidence.  This type of evidence is indirect evidence that leads to a reasonable inference of the defendant’s guilt.  For example, store security camera footage showing a man outside of a store that was broken into around the time of the break-in, would be one piece of circumstantial evidence.  One or two pieces of circumstantial evidence would not be enough to alone get a guilty verdict; but if there were a number of different pieces, then a guilty verdict is possible.

The third type of evidence to discuss is character evidence.  This is evidence that is used to establish the likelihood that the defendant is the type of person who either would or would not commit a certain offence.  It is interesting to note that the Crown may not introduce ‘bad’ character evidence, but the defence may introduce ‘good’ character evidence.  The fourth and final type of evidence to discuss here is electronic surveillance.  Electronic surveillance includes the use of any electronic device to overhear or record communication between two or more people.  Equipment used might include wiretaps (intercepting phone communications), hidden microphones (used for bugging - recording oral communications), hidden video cameras, etc.  Criminal cases may, but are not required to, include the use of all of the above types of evidence.

One source of evidence may be used in criminal investigations, but is not admissible in court.  This evidence type is from a polygraph test (lie detector test).  These devices are attached to a person, and then it records certain physiological responses to questions that are asked of the person.  The devices measure changes in the subject’s pulse, respiration, and blood pressure.  Typically, when someone lies, their pulse, respiration, and blood pressure change in a predictable manner.  However, evidence from these are not admissible in court because the tests have not been proven to be 100% accurate. 

The final point to consider about evidence, is that the validity of evidence may be called into question during a trial.  When this happens, it is common for the judge to have a voir dire with both sets of counsel to rule on the evidence.  A voir dire is a mini-trial in which jurors are excluded while the admissibility of evidence is discussed.  Once the judge rules on the voir dire, then the trial continues.

Summary

Overall then, it is important to note again that the procedures and content of criminal trials are designed to determine guilt or innocence; while also protecting the best interests and rights of society, and the accused person.  The steps of a trial and the procedures followed within them are based on specific predictable steps and standards to ensure the process is fair and based on principles of justice.