The Criminal Trial

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic will discuss the criminal trial procedure.

The purpose of a criminal trial is for the prosecution (the Crown) to present evidence to prove your guilt beyond a reasonable doubt. What must be proved depends upon the offence that you were charged with. You may represent yourself in Court; however, you are strongly advised to hire a criminal defence lawyer to represent you. Lawyer Referral Service can refer you to a lawyer who is knowledgeable in this area of law. If you cannot afford a lawyer, contact Legal Aid and one may be appointed for you if you meet the criteria for coverage.

When the trial begins, the Court Clerk will call your name. When you come forward, the Judge will ask if Counsel is ready to begin the trial. The Crown Prosecutor or defence counsel will ask the Judge to have the witnesses excluded from the courtroom. All witnesses apart from the one who will testify first will be asked to wait outside the courtroom until it is their turn to testify.

The Crown will call its evidence first. Each witness is sworn to tell the truth by the Clerk of the Court. Witnesses must only tell what they saw, felt or heard themselves; they cannot testify about what someone else told them because that would be hearsay evidence which is generally not admissible. The Crown will question its witnesses on what they know about the case.

When the Crown asks questions of its own witnesses, the questioning is called “Direct Examination” or “Examination‑In‑Chief”. These questions cannot be “leading” or suggest the answer. For example, the question, “You watched him drink more than 4 bottles of beer didn’t you?” would be considered leading because it asks the witness for a yes or no answer. The question should be asked as “How many bottles of beer did you see him drink?” to avoid leading the witness.

Physical evidence such as documents, photographs and weapons can be entered into evidence by the witnesses. The Crown can enter evidence of spoken or written statements you provided; however, the Judge must first be satisfied the statement was given by you voluntarily. If the Judge finds the statement was made in response to a threat of injury or a promise of favourable treatment, it will not be admissible evidence.

After the Prosecutor finishes questioning each of their witnesses, the Defence may “cross‑examine” the witness. You may want to carefully consider whether that witness should be cross-examined at all. Leading questions may be asked during cross-examination of the Crown witnesses; that is, they may be asked “yes or no” type questions, or questions that suggest the answer to them. After the “cross-examination”, the Prosecutor may “re-direct” or ask more questions of the witness because of what came up in the cross-examination. You may “object” to the re-direct by Crown Counsel if it goes beyond issues that came up on cross-examination. When Crown Counsel finishes with its last witness, the prosecution’s presentation of the evidence is finished.

If the Prosecutor has not presented enough evidence to prove your guilt beyond a reasonable doubt then the Court should acquit you without you having to call any evidence. You have no obligation to call witnesses or to testify yourself since the prosecution has the “burden of proof”; that is, they must prove your guilt beyond a reasonable doubt.

Unless the Court directs an acquittal after the Crown has called its case, the Defence will then call their evidence. Defence Counsel will call witnesses for Direct Examination or Examination-In-Chief. The Crown may then cross-examine those witnesses. Defence Counsel can then re-direct after the cross-examination. Presentation of evidence is made in the same way as in the Crown’s case.

After the Court has heard all of the evidence, the Judge will usually ask for “argument.” Sometimes an adjournment is granted before argument begins so that Counsel can have an opportunity to make changes to their prepared closing statement based on the evidence put forward. If witnesses were called for the defence, the defence will present its argument first. The Crown will argue first if there were no defence witnesses.

After argument, the Judge will render a verdict; that is, find you guilty or not guilty of some or all of your charges. Sometimes they may reserve judgment to a later date if they need time to consider the evidence they have heard, or if they want to do a written decision.

If you are found not guilty, then you are free to leave and your case is dismissed. If you are found guilty, then the Judge will ask Counsel to “speak to sentence”. You can be found guilty of some of your charges but found not guilty of others as part of the same trial.

When “speaking to sentence”, which can happen immediately after your trial if you are convicted, or at a later date, the Judge will want to know about your personal circumstances such as your employment history, educational background, family circumstances and so on. The Crown will tell the Court about your criminal record if you have one, and suggest a sentence or a range of sentences that they are seeking. After hearing from both Crown and Defence, the Judge will sentence you. The Judge may also wish to adjourn the matter so that a Pre-Sentence Report can be prepared for sentencing purposes. A Pre-Sentence Report is prepared by the Probation Office to assist the Court in imposing an appropriate sentence and includes information on an accused such as age, background, level of maturity, attitude about the offence and willingness to make amends, as well as sentencing recommendations.