Lawyers - LIO - Does the Jury Know?

[Northern_Piper]

@md2000

Then I assume it is the judge who decides if the circumstance could even fit the definition of lesser crimes?

That’s correct. Each crime has a set of elements that must be met for a conviction. The judge’s task in a jury trial is not to weigh the evidence, but to review it to determine if there is evidence, which if believed by the jury, could support each element of the crime. If the judge concludes that this test is met, then the judge is required to include that offence as a possibilty for the jury.

So, in the case where the charge is first degree murder, the judge normally charges on the elements of first degree. Then, the judge would say something like, “First degree murder requires a premeditated intention to kill. However, if you the jury do not believe that the accused had a premeditated intention to kill, you have to consider whether the accused is guilty of second degree murder: the accused intended to kill the deceased, but did not premediate it.”

Then the judge would similarly instruct on manslaughter (an unlawful act causing death, but without the intention to kill), and probably assault with a weapon, and then assault, and then acquittal.

It’s not the judge’s role to consider whether the evidence is believable, one way or another. The judge can’t say, “The evidence of premeditation is so strong, I won’t charge on second degree.” That would be usurping the role of the jury. The judge’s role is to determine if there is evidence, which if believed by the jury, meets all the requirements for first degree. If so, the judge charges them on first degree as an option.

@md2000

I.e. In the case of Robert Latimer, who put his severely imparied daughter in a truck, and fed the exhast into it; the jury was not given a choice of lesser charges other than first degree murder. I assume the judge in this case determined that the actions could not be construed as “un-premeditated”, nor could it be “manslaughter” as in “I didn’t mean for the action to cause death”.

No, that’s not correct. Mr Latimer was charged with first degree murder (premeditated intention to kill). The first jury convicted him of second degree murder.

The Saskatchewan Court of Appeal majority decision summarised it as follows, in R. v. Latimer (1995):

In this case the trial judge instructed the jury in a very even-handed and dispassionate manner. He carefully outlined the basic principles that govern every criminal trial and carefully instructed the jury on the distinction between first degree and second degree murder. The verdict of second degree murder indicates that members of the jury carefully considered the judge’s instructions in this regard.

That jury verdict was set aside by the Supreme Court because it came to light that the Crown and the RCMP had questioned potential members of the jury about their beliefs on euthanasia. The Supreme Court ordered a new trial. Since the Crown had not appealed the acquittal on the charge of first degree murder, the Crown could not re-try him on that charge - the original jury’s acquittal on first degree was binding. The Crown charged him for the second trial with second degree murder, and that’s what the second jury convicted him of.

@md2000

But then, if the charge is say “armed robbery” then there’s a whole spectrum of crimes all the way down to “petty theft”. At a certain point, there must be a stopping point? If the evidence mentions a thousand-dollar wacth was taken at gunpoint, then “theft under $200” is not allowed?

No, just because there’s some mention of value in the evidence, it doesn’t prevent the judge from charging the lesser offence. (The cut-off point in Canadian law is theft under and theft over $5,000, so I’ll use that.)

If there is evidence, which if believed by the jury, indicates that the watch was worth more than $5,000, then the judge has to charge the jury on theft over $5,000. But there’s always the possibility that the jury won’t believe that the watch was worth that much (e.g. - they might think that the victim is inflating the value of a cheap watch for insurance purposes).

So the judge also has to say something like, “There is evidence before you that the watch was worth more than $5,000, and was stolen. If you believe both of these points, beyond a reasonable doubt, then you should convict on theft over $5,000. However, if you conclude that the watch was indeed stolen, but are not convinced that the watch was worth $5,000, then you should convict on theft under $5,000. If you are not convinced that the watch was stolen at all, you should acquit.”