After requesting and receiving full disclosure, you should begin to prepare a trial brief. It should be a mirror in small of the overall trial plan: unified and coherent. Its organization should be simple, free of all irrelevancies, although the following materials are always relevant and should be there in an orderly arrangement:
It is often helpful to view the place where an offence is alleged to have occurred or to inspect items of real evidence that may be entered into evidence. In preparation for a murder trial, not too long ago, the defence lawyer had a videotape prepared from inside the house in which the killing took place. The victim had feared for her life for several months prior to her death. She had boarded up all the windows with plywood and drawn all the drapes.
Section 587 of the Code gives the trial Court authority to order the Crown to furnish particulars where it is satisfied that particulars are necessary for an accused to receive a fair trial. Where a particular is delivered pursuant to section 587, a copy of the particular is given without charge to the accused or her counsel and it is entered in the record and the trial proceeds in all respects as if the information or indictment has been amended to conform with the particular. While the matters described in subsection 587(1)(a) to (g) may be the subject of an order for particulars, these are not exhaustive of what might be ordered. Thus, the true function of particulars is to give further information to the accused of that which the prosecution intends to prove so that she may have a fair trial.
Uncovering all the facts requires more than meetings with your own client and the client’s witnesses. Complete disclosure is paramount, although the issue of what can or should be disclosed in any given case is by no means uncontroversial.
So far as practicable, you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror. Continue reading “Meeting the Client’s Witnesses: Be Patient, Be Supportive”
A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stand accused of a crime and face the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged. Continue reading “Meeting the Client: Be Interested, Stay Interested”
The work of a trial lawyer is uniquely difficult. Every line of work has its difficulties, each requires developing certain skills. Most businesses require persuading others about the merit of a product or a service. But trial lawyers have a much higher bar to reach, as Judges are no ordinary people. They are highly educated, experienced and perceptive. And for jury trials, your arguments will need to be understood and accepted by twelve (or fourteen) people at once. You will need to prepare for this task like you have never prepared before.
2022 Canadian Criminal Procedure Volume 1
2022 Canadian Criminal Procedure Volume 2
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CONSTITUTION ACT, 1867
30 & 31 Victoria, c. 3 (U.K.)
An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith
(29th March 1867)