The Trial Process (1)

• What is the adversarial system and how does it work? Does it serve the interests of justice?

• What are the major components of a trial?

• What appeal options are available?

The Adversarial System

Adversarial vs. Inquisitorial

Inquisitorial•Judge, acts as investigator of fact and arbitrator•Efficiencies•Days gone by…•Present day uses…

Adversarial•Relies on skill of each party’s advocate for defense of rights, uncovering of facts•Neutral judge (active) and jury (passive)•Golden Thread

• Presumption of innocence• Proof beyond reasonable doubt• Right to remain silent

The Adversarial System

Assessing the Adversarial System

Pros•Passion of personal interest•Neutral judge who can act as mediator•Professional legal advice

Cons•Cost and pressure to plea-bargain•Does the truth come out?

• Risk of polarised versions of events• R v. Stillman- real demonstrative evidence can still be

introduced even if Charter violations occurred•Imbalance of power

• Mandatory disclosure R v. Stingchombe• Ethical requirements of prosecutors Boucher v. The Queen

Alternatives:•Participatory•Return to Inquisitorial•Mediation

Source: Simon Fraser University (Burnaby, BC)

BC Court System

Source: BC Provincial Court

see pg. 208

Trial vs. Non Trial

How is justice best served (achieved): trial or non trial-based resolution?

Consider:•Costs (financial, human resources, physical resources)•Time•Adversarial vs. non-adversarial•Acknowledgement of guilt•Healing•Rehabilitation

Trial vs. Non TrialKey Players•Judge•Crown Prosecutor•Defence Counsel•Court Clerk and Reporter•Sheriff•Auxiliary Officials (victim support, probation officers, defendant assistants)

Pre Trial•Evidence•Publication•Jurisdiction•Jury Selection

Trial•Arraignment•Crown Case•Defense Case•Instructions to Jury•Verdict/Decision•Appeal

Location in Trial Process

Technical Aspects Players Involved Significance of this Stage

Publication of Evidence

Evidence

Jurisdiction

Jury Selection

Opening Addresses

Evidence- Physical

Evidence- Witnesses

Accused as Witness

Charging the Jury

AppealsAppellant- the party requesting the appeal

Respondent- the party responding to the appeal

Summary Offenses Trials•Transcripts reviewed•Statements of facts reviewed

Indictable Offenses Trials•New evidence may be presented•New arguments may be presented•Defense may appeal a conviction on the following grounds:

• Question of law• Question of law and fact, or fact• Other reasons appeal court may find worthy. (Why?)

•Crown may appeal a “not guilty” verdict on the following grounds:• Question of law• Length of sentence• Administration- invalid indictments, stay of proceedings

AppealsActions the Court of Appeal may take:•Reviews transcripts, charges to jury, reasons for decision, report from trial judge.•Decide which party will pay the costs of the appeal.•Change the verdict of the original court.•Change the sentence implemented by the original court.•Order a new trial.

Appeals