Law Review – Bringing the Accused to Trial Answers
Terms:
arrest - to legally detain a person and charge him or her with a criminal offence
appearance notice – legal document detailing what criminal offence the accused is charged with and the court date the accused must attend
summons – an order to appear in court
arrest warrant – legal document issued by a judge to order the arrest of the accused, and naming or describing the accused as well as listing the alleged offences
duty counsel – a lawyer on duty at the court or a police station to give legal advice to those arrested or brought before the court.
polygraph test – a process in which a person is asked questions and a lie detector machine measures the person’s changes in blood pressure, perspiration and pulse rate to indicate if he or she is telling the truth.
search warrant – legal document issued by a judge authorizing the police to search a specific location at a specific time for a specific reason.
reverse onus – the responsibility of proving in placed on the defence instead of the Crown.
undertaking – court document that the accused signs to swear that he or she will attend a specified court date and meet any conditions of release laid down by the judge.
recognizance - legal document that the accused must sign, in which he or she acknowledges the charge laid and promised to appear at a specified court date; sometimes accompanied by a payment to the court.
writ of habeas corpus – a document that requires a person be brought to the court to determine if he or she is being legally detained
disclosure – in criminal cases, a stage in proceedings for a trial by jury in which the Crown attorney and the defence must meet to reveal all evidence; after which, charges would be dropped if the defence proves that the Crown has no case.
forensics – application of biochemical and other scientific techniques to criminal investigations
adjournment – postponement of court business
preliminary hearing – hearing held to determine if there is sufficient evidence to justify a trial
remand – a return to custody (while awaiting trial or sentencing)
plea negotiation – process where the Crown and the accused (with his or her defence) attempt to make a deal, usually resulting in a guilty plea to a lesser charge than the original charge, thus a lesser penalty.
Questions:
1. When does an arrest take place and what is its purpose?
· Takes place if the police officers decide that an offence has been committed and have reasonable grounds that the suspect committed the offence. Its purpose is to lay a charge, preserve evidence, and prevent the accused from committing another offence.
2. Describe in detail the three choices available to police when they believe and offence has been committed.
· The three choices that the police have when they believe an offence has been committed are to issue an appearance notice, arrest the suspect, or obtain a warrant for arrest.
3. Why must the police swear an information before a judge or justice of the peace?
· To register an appearance notice and to swear that he or she believes on reasonable grounds that the person named in the appearance notice committed the offence. After an arrest, an information is sworn before a judge or justice of the peace.
4. What is the difference between a summons for arrest and a warrant for arrest?
· A summons for arrest orders the accused to appear in court at a certain time and place. In this situation, the officer believes that the accused will show up in court at the prescribed time. A warrant for arrest is issued if the police can prove to a judge that the accused will not appear in court voluntarily. In both cases, there must be reasonable grounds to believe that the accused has committed the offence.
5. What rights to the police have concerning the following: fingerprinting, requesting a line-up, a polygraph test, or a blood sample?
· The police have the right to fingerprint a person at the time of arrest or later, but only if the offence is indictable. The police have the right to ask a person to participate in a line-up, take a polygraph test or give a blood sample but the accused does not have to comply with these three requests.
6. Why is it sometimes to a suspect’s advantage to let the police collect evidence?
· If the crime was committed under the influence of drugs or alcohol. The impact of intoxication could influence the outcome of the trial or even the sentence.
7. Describe how a search warrant is obtained and used and what a person should know when served with a search warrant.
· Is obtained by a police officer swearing before a judge/justice of the peace that an offence has been committed and that there are reasonable grounds to believe that evidence of illegal activity is on the premises.
· Warrant can only be used on the date indicated and between the hours of 6 am and 9pm unless otherwise stated.
· Can only search areas outlined on warrant and only items shown on the warrant can be seized unless other illegal items used in or obtained by the commission of a crime are found.
8. What are the exceptions to search laws for illegal drug and alcohol offences?
· any place that is not a residence, as well as people inside it, can be searched without a warrant if there is reasonable belief that the building contains illegal drugs or the people in the building possess narcotics
9. What are the circumstances under which the police can search motor vehicles?
· if an officer suspects that the suspect is hiding something and has reasonable grounds to believe that an offence is being or has been committed. Under provincial liquor laws, police may search a vehicle for illegal alcohol without a warrant.
10. After being arrested, which categories of accused persons might be released until their court appearances?
· summary conviction offences, hybrid offences, indictable offences with penalty of five years or less. Indictable offences of more than 5 years accused must be brought before a justice within 24 hours or sooner for bail hearing. After bail posted, accused released.
11. Under what circumstances will suspects not be released until their court appearances?
· if the authorities suspect further offences will be committed or that the accused will not appear in court.
12. What is the difference between an undertaking and a recognizance and identify the purpose of each?
· Undertaking is a document the accused is required to sign; it set out conditions of release established by the court (i.e. curfew, not to associate with certain people). Purpose of undertaking is to reduce the risk of the accused committing additional crimes in the community.
· Recognizance is a document the accused is required to sign promising to appear in court on a certain date. Its purpose is to ensure the accused shows up for trial.
13. Why is habeas corpus an important legal right in a democracy?
· it permits the accused to appeal a decision made by a judge not to release the accused. It guarantees that the accused is not kept in prison without being arrested or denied a bail hearing.
14. Why is disclosure an essential part of the criminal justice system?
· it allows the Crown attorney and the defence to meet and reveal all the evidence for the upcoming jury trial. If the defence proves its case, charges will be dropped and no trial will occur. The accused might also change his or her plea to guilty if the evidence is overwhelming, thereby saving the taxpayers the expense of a trial by jury.
15. What is the purpose of an adjournment?
· is to delay a trial date, thereby allowing the accused more time to obtain legal advice.
16. Identify the purpose of a preliminary hearing and under what circumstances would the accused skip a preliminary hearing?
· Purpose is to determine if there is enough evidence to bring the accused to trial in a higher court.
· skip preliminary hearing in the following circumstances:
o accused has decided to plead guilty
o accused wants to have the trial date set as early as possible.
o accused want to avoid negative publicity that may result from a preliminary inquiry
17. Explain plea negotiation and outline the advantages and disadvantages of the process.
· process of negotiating a resolution between the defendant and the Crown attorney to avoid a trial. If there is strong evidence against the accused, the defence may encourage the accused to plead guilty to a lesser charge in hope of receiving a lesser sentence than if found guilty at trial.
· Plea negotiation saves money/time at trial and eliminates jury selection. Saves victims and families from suffering through trial publicity
· Disadvantage of plea negotiation is that justice might not be served if the accused avoids a more serious charge, such as murder.