I’m not sure this is directly related, but jury service is also legally required (although states have varying ways of excusing jurors.) So really tyhe whole process is driven by law.
It doesn’t vary much. The general rule is that a deposition is admissible (1) if the parties so stipulate, or (2) the witness is dead or otherwise unavailable.
IANAL, but from what I’ve gleaned over the years: The peace officer may bring the charges, or the attorney (District, crown) who then may decide to proceed or not, and the judge will hear the preliminary evidence (indictment?) and decide there is insufficient evidence to proceed. SO the various officers of the court (and the police) decide charges, and the court decides the verdict - either the judge or jury.
I presume the preliminary hearing only establishes there is enough evidence to warrant proceeding to trial so many of the witnesses may not be heard from, or in detail. However, this is still court not Grand Jury. The defendant, his lawyer, and lawyers for the witnesses may be present and object in real time I presume.
Correct?
Did I read the second link right? The moment you answer any question whatsoever in the Grand Jury, (“Yes, my name is Joe Smith”) you have waived your right to plead the fifth? Read those details and it’s amazing how nasty the Grand Jury process is…
The first link is also interesting. Ken Starr offered Hubell immunity if he produced documents, then proceeded to indict the guy anyway while pushing the theory “we pretty much knew what was in the documents so therefore immunity does not apply”. Certainly lives up to the expectation of what a lawyer might do when given the powers of a prosecutor’s office.
Thanks for the links!
Not quite, that’s a lawyer’s exaggeration, but it’s not far from the truth. Mind you, in order to force you to testify the GJ usually has to offer you immunity.
Which is what happened in the other case you mentioned, which is exactly why the Circuit Ct threw out Starr’s charges.
(Incidentally, this gives some reflection upon “Judge Starr’s” legal ethics)
No problem. I served on the GJ for a year.
I can’t speak to Australia and New Zealand, but in the US the reason witnesses have to show up to court is so they can be subject to cross examination - in other words, so the other side can try to show they’re lying, or are confused, or what they’re saying is otherwise unreliable. There’s also the idea that a jury can assess the credibility of someone who’s there in person, which you can’t do if you’re just looking at a written statement. In criminal cases, the right to confront the state’s witnesses is guaranteed by the constitution.
A preliminary inquiry (in Canada) only occurs if the accused is charged with an indictable offence. If charged by summary process (which is the great majority of cases) the matter goes straight to trial - so witnesses are forced to testify, in trial, based on an information laid by a peace officer, without any advance screening by the court.
This is a more accurate statement, but it is not what you said here:
[QUOTE=md2000]
Anywhere else, the prosecutor has to bring forward enough evidence to bind a defendant over for trial before they start hauling witnesses into the box and make them answer the difficult questions under oath.
[/QUOTE]
The prosecutor does not have to bring any evidence as a pre-condition to starting a criminal prosecution. If there is a preliminary, which can be a very lengthy proceeding, it starts with an information laid by a peace officer. Witnesses then are required to testify and are required to answer potentially difficult questions under oath.
This. The fundamental premise of the OP is wrong.
I will say that it is possible (and in fact not uncommon) for a prosecution (in the US and elsewhwer) to decide that they would rather not call uncooperative and unwilling witnesses. But, that is for tactical not legal reasons.
The question I’m getting at - from time to time, a charge is tossed (by the judge) pretty close to the start of the trial - I assume it is a defence motion?
therefore, to get to the OP’s question and the distinction from a Grand Jury - there has to be a fairly reasonable case based on existing evidence for the charges, before a trial will to come to the point where any and all witnesses have to sit on the stand and answer questions? The prosecutor cannot just claim “this person is complicit in the JFK assassinaion” and begin calling witnesses without laying some sort of claim to a collection of evidence that justifies the charges? Or is this the opening statement, the statement of how they will proecute and what they aim to prove (does that have to be stated in Canadian courts?)
From what I’ve heard about cases from time to time in the news, most judges are unwilling to put up with a case that appears to have no basis in fact or is speculation about what witnesses might say…
The courts do not pre-screen evidence for cases, which is what you seem to be arguing.
In some cases, defence can move prior to trial to have evidence excluded (e.g. challenge a search warrant for not complying with the Criminal Code requirements; challenge evidence as being collected in breach of the Charter; etc.) However, even if the judge excludes evidence on a pre-trial motion, that is not the same as quashing the charges.
The Crown would then have to re-assess its case and determine if it still has sufficient evidence to go to trial without the excluded portion. In some cases, the Crown may conclude it still has enough, and there is a trial. If the Crown doesn’t think it has enough, but disagrees with the court’s decision, then there are ways to appeal that evidential ruling to a higher court.
But in the normal course, the police swear the information. If the Crown decides to proceed by summary process, they lay the information before the Court, the Court assigns a trial date, and eventually the matter comes to trial. The Crown then calls its case. That is the first time that the trial judge hears the Crown’s evidence.
For indictable matters, there is the prelim, which I mentioned earlier. In that case, the Crown does have to call witnesses to show that it has a case that should go to trial. But again in that case, there is no pre-screening by the Court. The Crown lays the information before the prelim Court, the prelim Court sets a date, and on that date, the Crown starts calling its evidence.
In both types of proceedings, the Crown calls witnesses and they are required to testify under oath, and respond to all relevant questions from the Crown and the defence, without any pre-screening from the Court.
Frankly, i don’t understand how you think there can be an evaluation of the Crown’s case prior to calling the witnesses. The witnesses are the source of the evidence. What do you think the evidence is that the court reviews before witnesses are called? they are the source of the evidence.
missed the edit window: all of the above post is discussing Canadian law, which I understand md2000 was advancing as a counter-example to US law raised by the grand jury example.
So the police swear information - if the (potential) witness has not answered the police questions, not being under oath, not being compelled to do so - what exactly would the police swear to? “My gut tells me he’s guilty, your honour…”
(I realize in the real world, there is most often sufficient other physical or circumstantial evidence, and likely also some cooperative witnesses).
But how much evidence do the police or the crown need to lay a charge so the case gets to trial? Or is it the pratical matter that stops a lot of such fishing simply the situation - “if we get to trial and put this witness on the stand cold and they lie, then we would essentially have no provable case”…
Are you compelled to answer during the deposition phase (or is that only a civil thing?)
I’m just curious exactly how much evidence the authorities need to make you stand trial, compell witnesses to appear and answerr questions - the point of the OP’s question…
Not “swear information” - “swear an information”. “Information” is the term for the document which formally charges someone with an offence. It’s bare bones: alleges that John Doe committed the offence of X on or about such-and-such date, within the territorial jurisdiction of the justice of the peace or judge who receives the information. The information starts the criminal process, but it doesn’t contain any details of the alleged offence. It’s the accusation, not evidence.
The standard is normally expressed that the Crown has to be satisfied that there is a reasonable likelihood of conviction, based on the evidence gathered by the police.
There are no depositions in a criminal matter in Canada. Nor is anyone ever compelled to speak to the police (subject to a few exceptions under the anti-terrorism laws). Compulsion to speak only occurs when an individual is subpoenaed to testify in court.
The Crown has to have enough evidence to meet the standard of a reasonable probability of conviction, as mentioned above. What that will require will vary depending on the seriousness of the offence. That assessment is made by the Crown, not the courts. The courts do not pre-screen charges.
They are evidence, and qre used as such. However, it’s a commonly held belief among lawyers that juries are less affected by depositions – they may wonder why the witness didn’t testify in person.
Actually, they’re hearsay, and may be used as evidence only subject to one of the hearsay exceptions.
Interesting, Thank you.
What I’m getting at is that the crown (or US Prosecutors) could bring a case to court without sufficient evidence to convict, just to get witnesses on the stand and force them to testify (Assuming they are listed as prosecuting witnesses)?
Although I assume a prosecutor who made a habit of bringing very weak cases to court in hopes of forcing a reluctant witness to speak risks being raked over the coals by the judge, especially if the witness fails to come through with expected testimony.
And don’t they have to file a plan laying out their evidence? Can they state in there what they expect a witness to say evn if the witness has refused to talk to police and they ahve no guarantee they will say anything? Or do they have to have some corroborating statement to back up that claim?
At what point does the judge toss the case because of “not proven”? I assume this would be after the prosecution’s case is closed (and those witnesses forced to take the stand) the defence can move for dismissal as “not proven”.
Why would they want to?
It’s a basic principle of trial prep that you don’t call a witness if you don’t know what the witness is going to say. A single adverse witness can do tremendous damage to one’s case. If the Crown doesn’t know what a witness will say, why would the Crown call that witness?
It’s stronger than that. A Crown who proceeds to trial without being satisfied that there is a reasonable likelihood of conviction may be committing professional misconduct and may be opening himself up to a malicious prosecution lawsuit. I don’t understand why you think a Crown would want to call someone to testify when the Crown doesn’t know what that witness is likely to say.
Not with the court, no. In indictable matters, the Crown has to file a witness list. If the Crown is calling an expert witness, they have to file a Notice of Expert Testimony, some days in advance of trial. In a major case, there may be a pre-trial, where the Crown gives the Court their best estimates as to how long their evidence will take; but that’s a matter of logistics, not a requirement that the Crown outline in detail the contents of its case.
After interviewing a witness, the police prepare summaries of what a witness is likely to testify about. These summaries are colloquially called the “can-says” - they summarise what the witness can say. The Crown is required to disclose the “can-says” to the defence, in advance of the trial, but is not required to file them with the Court - in fact, the defence would object if the Crown tried to file them in advance of the trial.
Since the can-says are just summaries, they are not usually introduced into evidence; the Crown uses them to prepare for examination in chief, and the defence uses them to prepare for cross-examination.
There is no verdict of “not proven” in Canadian law.
There is a process called a “directed verdict”, sometimes called a “non-suit” (although technically that term is used in civil cases, not criminal). That is, once the Crown closes its case, the defence can always bring a motion that the Crown has failed to lead any evidence as to one of the elements of the offence. If the judge agrees, the judge can direct the jury to bring in a verdict of not guilty. However, this is a very high standard for the defence to meet, because it is not an argument that the Crown’s case is weak; rather, it is an argument that the Crown has not led any evidence at all on one or more crucial points. It is not the function of the judge to assess the strength of the Crown’s evidence, so if the Crown can point to something in their case that supports the charge on that point, then the non-suit fails, even if there are doubts about the reliability of the evidence on that point. Assessment of the weight of a piece of evidence, and the credibility of a witness, are for the jury to decide.
Pretty sure that’s not correct.
If you’re a witness and you provide a statement which is entered into evidence you can be compelled to attend so your statement can be cross examined.
If you haven’t provided any statement (in support of either side) but one side believes you have evidence that may help them they can subpoena you to attend.
You are mistaken - witnesses in criminal proceedings in NZ and Australia are compellable ie. they must appear and give evidence if called. Indeed this is the law throughout the Commonwealth.
Perhaps you are thinking about civil proceedings - court cases where people sue each other, family law cases (matrimonial property, child custody etc), arguments over wills etc etc.
In civil law, witnesses may be subpoenaed but not compellable. In other words you can tell them to turn up at court but you cannot enforce that. They cannot be arrested and presented to the court.
The statement is generally not going to be admissible for substantive purposes at all.