Patrick J Ducharme

Closing addresses are of utmost importance for counsel to be successful in jury trials. This is the one and only opportunity counsel is permitted to bring all the evidence together in an effort to persuade the jury to view the case favourably to the side that counsel represents. Over the years I have come to know the best closing addresses are brief. Ideally, a closing address should be under 30 minutes, no matter how lengthy the trial that preceded it. Long-winded persons are generally found to be boring. The maxim holds true, especially true, for lawyers delivering a closing address.
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Avoid These Mistakes in Opening Addresses:

1. Do not tell a jury that the evidence you intend to call will be presented in a disjointed or disorganized manner. It is unwise to begin an opening jury address with what appears to the jury to be an apology. The essence of a good opening address is to bring meaning to the evidence that is going to be presented. Suggesting, even inferentially, that the evidence to be presented is, in some way, incomprehensible because of its manner of presentation is contrary to good strategy. Instead, make every effort to describe the evidence in a manner that makes it sound comprehensible, cohesive and supportive of what the jury will anticipate will be your final argument. To do otherwise is to, at least subliminally, suggest to the jury that your side is partially defeated before you even begin to call evidence. Even if the jury members do not come to the conclusion that you are, in effect, apologizing for the manner of presentation of evidence, they will undoubtedly consider your opening address uninteresting. The opening address needs to be interesting. It should not have the appearance of an “apology.” Instead, it should suggest that you are about to present answers to your opponent’s case, and, the answers will provide the jury with reasons to reject your opponent’s case. In short, everything in the opening address should have a positive note. No apologies!
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What should be said to the jury in opening addresses? From experience, the answer is simple. Counsel should stand before the jury, look at each one of them, and tell them what you expect the evidence will be.
Generally, counsel should avoid using the names of witnesses, since their names at this stage, will be meaningless to the jury. You may make an exception for a vital, pivotal witness whose name deserves to be mentioned because of the importance of that particular witness’s testimony.
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The value of an opening address to the jury cannot be overstated. An opening address is even more valuable to trial counsel. Its value is almost too good to be true. It provides an opportunity to state the theory of one’s case clearly, concisely and without interruption. Although counsel in making opening statement is prohibited from argument, only the naïve would fail to recognize that it still provides an ideal opportunity for persuasion.
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There are also specified offences that must be tried in a Superior
Court of Criminal Jurisdiction.1 The regular mode of trial in this jurisdiction is, by virtue of the combined effect of sections 468 and 471, by way of jury. However, section 473 provides for an election or re-election to trial by a Superior Court Judge alone, that is, without a jury, but only with the consent of the Attorney General. Section 473 provides that “notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a Judge of a superior court of criminal jurisdiction.
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Section 553 of the Code provides an extensive list of offences that are in the absolute jurisdiction of a Provincial Court Judge. If an accused is charged with one of these offences the accused is not entitled to a trial by jury. The accused is not permitted to have a trial in the Superior Court. The accused is not permitted to make any other selection for his trial. A Provincial Court Judge refers to a Judge appointed or authorized to act by or pursuant to an Act of the legislature of a Province or Territory by whatever title that person may be designated, who has the power and authority of two or more Justices of the Peace and includes the lawful deputy of that person.
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Two jurors are selected from the jury panel and are initially selected to listen to the answers to the questions posed by the presiding Judge. Then, the triers of the issue are asked to decide if the juror under scrutiny should be excused for potential bias, or, should remain on the jury because the potential juror is not, in their opinion, biased. The two jurors are sworn on their oath, to properly try the issue. They must agree on their decision. If they cannot agree, the potential juror is not allowed to serve on the jury.
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Before the 2019 amendments, counsel for the accused would present a written legal argument to the assigned trial Judge providing materials and evidentiary support alleging a need that each potential juror be questioned as to their possible bias against the accused that could make them unlikely or unable to render a fair verdict. These applications are usually based upon adverse pretrial publicity in the community where the accused is to be tried.
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Previously jury trials in Canada required trial judges to remain above the fray, assisting the jury only to the extent that they provided a jury selected by the lawyers an independent and impartial assessment of the facts and how the law should be applied to the facts of the case. Trial judges were there, at least in part, to assist the jury in carrying out their responsibilities to make an appropriate decision based upon applicable law.
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