Criminal Law Test 2 Review PDF

Criminal Law Test 2 Review Chapter 9 - The Criminal Court System The History of the Trial The Criminal Court Structure: ​ The Supreme Court of Canada: grants leave, or permission to appeal, only for matters of national significance or when decisions conflict in the provincial appeals...

Criminal Law Test 2 Review Chapter 9 - The Criminal Court System The History of the Trial The Criminal Court Structure: ​ The Supreme Court of Canada: grants leave, or permission to appeal, only for matters of national significance or when decisions conflict in the provincial appeals court. Also the highest court of appeal ​ The Federal Court of Canada ​ The Tax Court of Canada: responsible for hearing cases dealing with income tax matters The Provincial Court System ​ Is at the bottom of the hierarchy of Canadian courts ​ Cases are tried by a judge alone, not a jury ​ Each province divides this court into separate divisions such as criminal, civil and family gotta finish Preliminary Hearings: a judicial inquiry to determine whether there is sufficient evidence to put the accused person on trial Appeal: an application to a higher court to review the decision made by a lower court The Federal Court System Has two divisions - ​ Trial Division - civil claims involving the federal government ​ Appeal Division - hears appeals from federally appointed boards and commissions like the immigration Appeal Board and the National Parole Board The Participants: Judge: the court official appointed to try cases in a court of law and to sentence convicted persons ​ In a jury trial, the Judge is known as the “trier of law” Justice of the Peace: a court official who has less authority than a judge but who can issue warrants and perform some other judicial functions. - They can perform a number of judicial functions: ​ Issue arrest ​ Search warrants ​ Hear bail applications Defence (accused): the person charged with committing a criminal offence Duty Counsel: a lawyer on duty in a courtroom or police station to give free legal advice to persons just arrested or brought before the court Defence Counsel: a lawyer who defends an accused person on trial Prosecution: the lawyer representing the government. The prosecutor must prepare the government’s case by: ​ Researching the law ​ Assembling the evidence for trial ​ Reviewing exhibits ​ Taking statements from witness Court Clerk: the court official who assists the judge Court reporter: the court official who records everything said in court during trial Transcript: a typed record of everything said in court during a trial Court Security Officer: the court official who maintains security in the courtroom Sheriff: the court official responsible for jury management Bailiff: the court official who assists the sheriff Witness: persons who give evidence while under oath or affirmation in a court of law Subpoena: a court order requiring the witness to appear in court on a certain date to give evidence Perjury: knowingly making false statements in court while giving evidence unnder oath or affirmation Jury: a group of 12 people who decide whether the accused is guilty or not guilty ​ In a jury trial, the jury is known as the “trier of the fact” The Role of the Jury: Qualifications ​ Must be a Canadian citizen 18 years old+ and must be a resident of the province ​ Publicly elected officials, and people working in the justice system may not serve as jurors (ex: lawyers, prison guards) ​ Sometimes jurors want to be exempted from duty due to religious or health issues, also serious financial hardships ​ Individuals that have server within past 2 years are ofte excused Jury Selection ​ Juries are selected randomly from electoral polling lists; these lists present a wide cross-section of citizens in the community. A group of potential jurors is known as a jury panel ​ The Crown and Defence counsels will select jurors from the jury panel under the Judge’s supervision ​ During the arraignment, a plea is entered; if the defendant pleads guilty, then the jury is dismissed The Criminal Trial Process: The Crown’s Opening Statement ​ Identifies the offence committed ​ Summarizes the evidence against the accused ​ Outlines the way the Crown will present its case - The opening statement is not meant to be considered as evidence - Most of the evidence in a criminal trial is presented through the witness Direct Examination: the first questioning of a witness to determine what they observed about the crime Cross Examination: the second questioning of a witness to test the accuracy of the testimony; performed by the opposing counsel The Defence Responds Motional for Dismissal: a request by defence counsel that the Judge dismiss the charges against the defendant Directed Verdict: a decision by the judge to withdraw the case from the jury and enter a verdict of not guilty -​ Begins by summarizing its case in an opening statement -​ The defence may choose to call witnesses to refute testimony provided by the Crown’s witnesses or to show reasonable doubt -​ The procedure of direct and cross examination is repeated -​ After the defence has presented all its evidence, the Crown has the opportunity to rebut and surrebuttal Rebut: to contradict evidence introduced by the opposing side Surrebuttal: a reply to the opposing sides rebuttal The Rules of Evidence Leading Questions: suggests a particular question Hearsay Statements: information received from someone else rather than personal knowledge Opinion Statements: cannot ask a witness to give an opinion about a matter that goes beyond common knowledge unless witness is an expert in the field Irrelevant Questions: has no connection with the matter at hand Non-responsive questions: asked a question and the witness does not answer it properly Types of Evidence -​ All evidence must be “material”, important and relevant to the case Direct Evidence: testimony given by witness to prove an alleged fact Circumstantial Evidence: indirect evidence that leads to a reasonable inference of the defendant’s guilt Character Evidence: evidence used to show the likelihood that the defendant would or would not commit a certain offense. Electronic Evidence: the use of electronic devices to overhear or record communications ​ Wiretapping - the interception of telephone communications ​ Bugging - recording a speaker’s oral communications by using devices Polygraph Tests: a machine that allows a skilled examiner to detect physical signs that indicate lying on the part of the person being tested Voir Dire: a mini-trial in which jurors are excluded while the admissibility of evidence is discussed Summary of the Case ​ After all the testimony has been given, each counsel presents a summary of the case in their closing arguments ​ If the defence called witnesses during the trial, then defence counsel closes first. If not, the Crown closes first. ​ The closing/opening arguments are not to be considered as evidence Charge to the Jury: the judge’s explanation to the jurors of how the law applies to the case before them -​ A deficient charge is the most common basis for a successful appeal -​ Judges decide what evidence is admissible, for jurors what evidence is believable The Verdict ​ Once the verdict has been reached, it is read in open court ​ Both the Crown and defence have the right to ask that the jury be polled, each jury member must stand and confirm their agreement with the verdict ​ A jury’s verdict must be unanimous Hung Jury: the jury cannot agree on a verdict Appeals -​ A notice of appeals must be filed within 30 days The appeal is then heard in appeals court, which has the authority to review the decision and make one of the following rules: ​ To affirm the lower court’s decision ​ To reverse the lower court’s decision ​ To order a new trial Appellant: the party that files an appeal Respondent: the party that responds to an appeal -​ The Court’s verdict does not have to be unanimous Beyond a Reasonable Doubt: where the defendant’s guilt must be proven to the extent that a reasonable person would have no choice but to conclude that the defendant did indeed commit an offence Burden of Proof: the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt What are the key aspects of the criminal trial process? -​ “Innocent until proven guilty” -​ The Crown has a obligation to prove the guilt of the accused beyond a reasonable doubt What are the rules of evidence? -​ Leading, Hearsay, Opinion, Irrelevant, Non-responsive —------------------------------------------------------------------------------------------ Chapter 10 - Defences for the Accused Defence: Main Ideas Mental States (including any key terms associated) 1. Mental Disorder ​ Mental disorder is a ¨disease of the mind¨ in the criminal code ​ Mental disorder defenses argue that a defendant should not be held responsible for their actions due to a diagnosed mental disorder Insanity Defense: This defense argues that the defendant was unable to understand the nature of their actions 2. Automatism ​ Automatism is a condition where a person acts without being aware of what they are doing. ​ This condition negates the actus reus of a crime, since the individual does not act voluntary or with intent There are 2 classifications: a)​ Insane automatism refers to a form of automatism that is due to mental disorder b)​ Non-insane automatism refers to a form of automatism that is caused by an external factor (a concussion or medication) 3. Intoxication ​ Can be a defence when an individual is in a state similar to automatism where they are said to not have conscious control over their actions due to self-intoxication ​ The SCC was clear that drunkenness is not a defence for committing criminal acts, including assault and sexual assault. Defence: Main Ideas Justifications (including any key terms associated) 4. Self-Defence Self Defence: the use of reasonable force to defend against an attack Reasonable force: the amount of force necessary to defend yourself ​ If you believe you will be seriously injured, you can seriously injure the attacker ​ If there is no other way to save yourself 5. Battered WHAT IS IT? Woman ​ Injuries and signs of being mistreated Syndrome ​ Battered or abused Defence ​ depends on a expert testimony ​ when an abused woman who is accused of murder or aggravated assault. ​ Suffers from the mental abuse and mental distress ​ understanding of danger and death during 6. Defence of a Dwelling Section 40: Everyone who is in peaceful possession of a dwelling-house, and every one lawfully assisting him/her or acting under his/her authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority. Must be proven, within reasonable grounds, that; ​ the person is attempting to enter/remain with intent to commit a crime.  ​ that it is necessary to use that force. ​ it is not something that the defendant must prove, but something that the prosecution must rule out beyond reasonable doubt. 7. Necessity Requires that: 1)​ There was some type of danger approaching 2)​ There was no reasonable legal alternative other than commit the Necessity offense 3)​ The harm caused by the accused was not disproportionate to the harm he was trying to avoid. 8. Compulsion or Compulsion or Duress - a defence in which the accused person is forced Duress by the threat of violence to commit a criminal act against their will Section 17 of the Criminal Code: ​ The threatener has to be present during the offence ​ The threat has to be immediate ​ Can not be used as a defence for violent crimes (murder, treason, sexual assault, etc) 9. Provocation Provocation- Words or actions that could cause a reasonable person to behave irrationally or lose self control. ​ Partial Defense ​ Only applies to murder charges ​ Reduces the conviction from murder to manslaughter 4 elements that must be proven: ​ A wrongful act or insult occurred ​ This act was sufficient to deprive an ordinary person of the power of self- control. ​ The person responded suddenly. ​ The person responded before there was time for passion to cool. 10. Aboriginal or Definition: When an Aboriginal person claims that they can do something Treaty that would normally be illegal. This is usually related to hunting and fishing Rights rights. For this defence to work, they need proof that they have this right under their treaty. Defence: Main Ideas Other Defences (including any key terms associated) 11. Mistake of Law and Fact Mistake of law - refers to someone making a mistake because they are unaware of the law. Mistake of fact - is a mistake about a material or factual element or a mistaken belief. (Basically being unaware of how the law works.) ​ Mistake of law is used in order for an accused person to rely on an officially induced error as an excuse ​ Mistake of fact is used to prove that a criminal misunderstood some facts or parts of the crime they committed. 12. Double Jeopardy ​ Double jeopardy is the prosecution of a person twice for the same offence. ​ The double jeopardy clause ensures that individuals are protected from being subjected to multiple prosecutions or punishments for the same offense, safeguarding against potential abuses of power by the government and promoting fairness and finality in the criminal justice system. 13. Alibi ​ A defense of having been somewhere other than at the scene of a crime at the time the crime was committed. Alibi’s can be commemorated by people that have seen or talked with you at the time of a crime.  14. Entrapment “the act of causing someone to do something they would not usually do by tricking them..commonly done by police” ​ a legal defence to a criminal charge when an accused person is induced by the police to commit a crime they may not have committed otherwise. How is a defence defined in law? -​ A denial, or a justification for criminal behaviour Mistake of Law: ignorance of the law Officially Induced Error: defence that the accused relied on wrongful legal advice from an official responsible for enforcing a particular law Mistake of Fact: defence that the accused made an honest mistake that led to the breaking of the law Justifications: reason or explanation that makes an action acceptable or lawful Entrapment: a defence against the police conduct illegally induces the defendant to commit a criminal act Double Jeopardy: that an accused person cannot be tried twice for the same offence Alibi: a defence raised by the accused claiming that they were somewhere else when the offence was committed —--------------------------------------------------------------------------------------- Chapter 11 - Sentencing and Correctional System Goals of Sentencing: Protection of the Public -​ When a person commits an offence, that individual not only harms the victim but everyone in society Retribution: punishment to avenge a crime, ensuring that offenders suffer the consequences of their actions Restorative Justice: focuses on rehabilitation through reconciliation with victims/community​ Specific Deterrence: punishment to discourage criminals from reoffending General Deterrence: punishment meant to discourage people in general from offending Rehabilitation: punishment combined with treatment and training to help offenders function in society Restitution: punishment that requires the offender to pay the victim or society back for the harm or loss suffered Denunciation: punishment designed to show condemnation (evil) of the offender’s conduct Sentencing Procedures: Perspectives to Consider 1.​ Considering the Offender Pre-sentence report: background information about the convicted offender, prepared for the Judge prior to the sentence Psychiatric Assessment: a report describing the mental history of the offender 2.​ Considering the Victim Victim Impact Statement: a statement prepared by a crime victim or the victim’s family describing the harm done or the loss suffered as a result of the offence 3.​ Considering Society -​ The Crown’s role is to ensure that society’s interests are protected when the offender is sentenced The Sentencing Hearing -​ The Judge’s opportunity to listen to recommendations and to consider all the facts before passing sentence Judge must examine the following factors ​ Criminal record ​ Severity of the Crime ​ Offender’s background Aggravating Factors: circumstances that may increase the severity of the sentence Mitigating Factors: tend to decrease the severity of the sentence suggestions that an offender can be rehabilitated and does not pose a threat to society Types of Traditional Sentences Absolute Discharge: realising a convicted offender and erasing the criminal record after one year Probation: allows a person to live in the community under the supervision of a parole officer Suspended Sentence: a judgement that is not carried out, certain requirements are met Intermittent Sentence: a sentence served on weekends at night Conditional Sentence: a prison sentence that can be served in the community Electronic Monitoring: allowing an offender to serve a sentence at home under electronic supervision Binding Over: a sentence ordering the defendant to keep the peace and demonstrate good behaviour for up to 12 months Deportation: a sentence of removing from the country Fines: specific amount of money paid as penalties for the offence Suspension of Privilege: withholds a privilege from a specified period or lifetime Plea Bargain: a negotiated deal where the accused pleads guilty in exchange for a lighter sentence Incarceration: imprisonment for a specified period Paroles Parole Decisions -​ Only granted to those that will not pose a risk to society -​ Members review the offence, criminal history, social problems, etc Conditional Release -​ Serving part of the sentence in the community under supervision Unescorted Temporary Absence: brief release from custody for community service or personal reasons When do offenders qualify for paroles and pardons? Paroles - after serving one third to one half of their sentence Pardons - 3 to 5 years —--------------------------------------------------------------------------------------- Chapter 12 - Criminal Law and Young People Young Offender: a person from 12 to 18 years of age who breaks the criminal law Youth Sentence: a punishment imposed of a young person that takes into consideration that the principles involved in sentencing people under the age of 18 Youth Criminal Justice Act: federal legislation that replaced the Young Offenders Act Adult Sentence: someone over the age of 18 who breaks the criminal law Extrajudicial Measures: are ways to deal with less serious youth crime outside of the court system Extrajudicial Sanctions: participating in community-based programs instead of going to court Trial by Ordeal: Trial by ordeal was an ancient judicial practice where the accused was subjected to painful or wildly unpleasant and dangerous experiences. Trial by Ordeal Bean: person eats a poisonous bean and if they were innocent God would save them while the guilty would die from consuming the bean