The Trial Process
Frequently Asked Questions
How does the criminal trial process work?
Every trial has the same steps, whether it is a multi-week murder trial or a 2-hour assault trial. Even though the steps of a trial are the same, there are a lot of them, and they often happen at the same time. You need a lawyer who has a lot of court experience. Being a good trial lawyer is difficult, and it takes years of practice.
What happens before the trial?
Trials are often won or lost in the office, a long time before the first witness is called. The pre-trial process is crucial and needs to be carefully managed.
1. Disclosure
It is important to collect all the information in possession of the state and review the disclosure thoroughly and early on. It is necessary to identify what is in the disclosure, and more importantly, what is missing. Missing items in the disclosure must be requested, and if not provided by the Crown, applications to have them produced must be made. The police may have forgotten to disclose something important. The police may have destroyed evidence by accident or by policy. A common item of missing disclosure is video recordings. Disclosure problems are common and all good defence lawyers will make sure that you have all the information that is out there so that there are no surprises.
2. Pre-trial Conferences
Both the Provincial Court of Alberta and the Court of Queen’s Bench have mandatory pre-trial conferences. If they have a lawyer, the person charged with the offence is not usually present at these conferences. It is important that your lawyer stand up forcefully for you at these conferences.
3. Pre-trial Motions
These are not mandatory, but they are common.
Common crown motions are to:
- have witnesses appear by closed circuit television or by computer link,
- have complainants in sexual assault cases testify by video, or with a support person or animal, or
- exclude witnesses from being in court until after they testify.
Common defence motions are to:
- request items of disclosure that the Crown is refusing to produce.
- make applications for records in the hands of third parties to be produced. (These are referred to as O’Connor applications.)
- make applications to cross-examine on sexual history of the complainant, or any text messages or other communication between the complainant and the accused in a sexual assault trial (pursuant to sections 276 and 278 of the Criminal Code).
There are many other motions which can be made depending on the circumstances.
4. Negotiation with the Crown Prosecutor
Negotiation with the prosecutor is an essential part of the defence process. It is often possible to negotiate a satisfactory result without all the expense and risk of a trial. There is never any harm in trying to resolve a matter. In many cases, that won’t be possible. Negotiation only works if your lawyer is willing and ready to go to trial if the negotiations are unsuccessful. Often the lawyers who get the best results for their clients in negotiations are the ones who have reputations as diligent and hard-nosed trial lawyers.
What happens during the trial?
The Crown has to prove its case. This is called the burden of proof. The burden of proof is always on the Crown in a criminal prosecution, and it never shifts. The Accused does not have to prove anything if the Crown doesn’t meet the burden of proof.
1. Opening Statement by the Crown
The Crown Prosecutor may make an opening statement at the start of the trial. In a short trial, the statement will typically be about how many witnesses are being called. In a long trial on a complicated matter, the statement will provide a schedule of witnesses and anticipated evidence. The Crown Prosecutor must be very careful to not refer to anything that will not be in evidence.
The Defence does not usually make an opening statement at this time, and this is normal.
2. Calling of Witnesses
The Crown prosecutor controls what witnesses are called, when those witness will be called, and in what order. The judge has a great deal of input, and no judge likes to see court time wasted. The witness schedule often changes. Every witnesses’ testimony is in two phases:
Direct examination
The Crown Prosecutor ask the witness questions. They cannot be leading questions. The witness is asked to give their evidence in their own words as much as possible without the prosecutor interfering.
Cross examination
The lawyer for the accused can cross-examine every witness. Cross examination can take many forms. Some questions are not allowed. The judge has control over the questioning of the witness, both by the Crown prosecutor and by the defence lawyer.
This process is followed until all the witnesses have testified. Evidence may also be called by the Crown is ways that does not involve witnesses.
Business records can be put into evidence by giving notice under the Canada Evidence Act and filing an Affidavit from a record keeper. Certificates of Analysis are commonly put into evidence to prove the nature of a drug or the blood alcohol level of a person. Evidence can also go in by agreement between the Crown and the defence lawyer. This is a common way of focusing the trial on the important issues.
Once the Crown has called all the evidence that it wants to, it closes its case. The crown cannot call anymore evidence except to rebut evidence called by the defence.
3. Voir Dires
During the trial, there will be voir dires. These are mini-trials inside the main trial to determine a legal issue. For example, any statement made by an accused that the Crown intends to call in evidence must be voluntary. If the accused doesn’t admit that the statement is voluntary, then there is a voir dire to determine if the statement can be used. These are legal rulings made by the judge during the trial.
Testimony in a voir dire mini-trial cannot be automatically used in the main trial—the judge will rule whether it can or not. The voir dire is not allowed to influence the main trial at all, and that is why in a jury trial, the voir dire happens without the jury present.
4. The Defence
Once the Crown has closed its case, the Accused makes the decision on whether or not to call evidence. The Accused has a right to silence and cannot be made to testify. If the Crown has not met its burden of proof and called evidence on every element of the charge, the Accused may apply for a non-suit at this time. This application, if successful, will result in the charge being dismissed.
The Accused doesn’t have to prove anything. The Crown must prove the charge or charges beyond a reasonable doubt. It is quite common for the Accused not to call any evidence in a trial. If the Accused does call evidence, then he or she may make an opening statement. This is to give an outline of the case of the Accused to the judge and the jury (if present).
The Accused then calls his or her witnesses, subject to all the same rules as the Crown Prosecutor.
Direct examination
The Defence lawyer asks the witness questions. These cannot be leading questions. The witness is asked to give their evidence in their own words as much as possible without the lawyer interfering.
Cross examination
The Crown Prosecutor can cross-examine every witness. Cross examination can take many forms. Some questions are not allowed. The judge has control over the questioning of the witness, both by the Crown prosecutor and by the defence lawyer.
The Accused person can also put business records into evidence through business records notice and use all the mechanisms available to the Crown.
5. Closing Statements
If the Accused has called evidence, their defence lawyer makes the first closing statement. This can be quite lengthy. In the closing statement, the defence lawyer for the Accused will summarize the evidence, describe the relevant law, apply the relevant law to the evidence heard, and then suggest why the Accused should be acquitted because the Crown hasn’t proven its case.
The Prosecutor will then make their closing statement. They will also summarize the evidence, describe the relevant law, and apply it to the evidence heard. The Crown will suggest why they have proven their case and why the Accused should be convicted.
What happens at the end of the trial?
The Judge’s Decision – Guilty or Not Guilty
Once all the evidence is heard and after the closing statements, the judge will make their decision. The decision may be made right away, or the judge may reserve their decision and come back at a later time. The decision might be in writing, or he may simply dictate it into the record.
If there is a jury, there are many special rules regarding the decision which won’t be described here.
If the Accused is found not guilty, then the matter is over and he or she is free to go.
If the Accused is found guilty, then the Accused will be taken into custody as soon as the guilty verdict is given. The matter then goes to sentencing, sometimes at a later date.
What happens at the sentencing hearing?
In the event of a guilty plea, the matter then goes to sentencing. If an Accused is convicted at trial, the sentencing hearing happens after the trial.
Pre-sentence reports and forensic assessment reports will be ordered so that the judge can determine what an appropriate sentence should be. The Crown Prosecutor, and the Accused and their lawyer will all make their submissions on what the appropriate sentence should be, based on the facts of the case and the results from other decisions of courts with similar circumstances.
The judge will determine an appropriate sentence based on the submissions, and order it at the end of the hearing. The sentence begins immediately.