Background
DW, a 42-year-old man, was charged with sexually assaulting a 16-year-old girl, TW, on two occasions while driving her to her boyfriend's house. TW was staying at DW's house at the time.
Besides her claim of the event, there was little circumstantial evidence. Her panties had semen stains from a Type A secretor, which included DW, but also 32% of the population. The secretor type of the boyfriend was never known.
Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or inference.
Semen, also known as seminal fluid, is an organic fluid that may contain spermatozoa. It is secreted by the gonads and other sexual organs of male or hermaphroditic animals and can fertilize female ova. In humans, seminal fluid contains several components besides spermatozoa: proteolytic and other enzymes as well as fructose are elements of seminal fluid which promote the survival of spermatozoa, and provide a medium through which they can move or "swim". Semen is produced and originates from the seminal vesicle, which is located in the pelvis. The process that results in the discharge of semen is called ejaculation. Semen is also a form of genetic material. In animals, semen has been collected for cryoconservation. Cryoconservation of animal genetic resources is a practice that calls for the collection of genetic material in efforts for conservation of a particular breed.
At trial before a judge and jury the defence argued that she was not credible. She was unemployed, illiterate, and a dropout, and had been kicked out of several houses including Dw's house. The testimony of DW was poor, but it is uncertain whether it was due to lack of intelligence or deception.
In law and in religion, testimony is a solemn attestation as to the truth of a matter.
At the end of the trial the judge issued its charge to the jury without mention of any issue of credibility. Less than ten minutes later the Crown made a request for a recharge to bring this issue up. Counsel for the Crown requested the recharge in order for the judge to explain what evidence may assist the jury in making a finding on the issue of credibility.
Crown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.
Jury instructions are the set of legal rules that jurors ought follow when deciding a case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said. They are a type of jury control procedure.
During the recharge, the judge charged to the jury that:
- If in fact you believe the accused then clearly nothing took place and in fact the Crown will have failed to prove beyond a reasonable doubt that he is guilty as charged. On the other hand if you in fact believe the complainant totally, then he is guilty as charged.
On these instructions the jury returned a guilty verdict.
The issue of the appeal was whether "the erroneous recharge, viewed in the context of the charge as a whole and the short time that elapsed between the main charge and the recharge, could be said to have left the jury with any doubt that if they had a reasonable doubt they must acquit."
In law, an appeal is the process in which cases are reviewed, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law. Although appellate courts have existed for thousands of years, common law countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.
The judge erred in the short recharge in that he characterized the core issue to be determined by the jury as to whether they believed the complainant or whether they believed the appellant. The counsel for the appellant objected to the recharge, but the trial judge's response was that he did not feel that he left the jury with the impression that they must accept the appellant's evidence in order to acquit him. Thus, the appeal to the Court of Appeal was initially dismissed.
Reasons for judgment
Justice Cory, for the majority, denied the appeal.
In considering the recharge, he found that the judge erred.
- It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
Cory describes the correct method of assessing credibility as follows at p. 310:
- Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
- First, if you believe the evidence of the accused, obviously you must acquit.
- Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (Note: this is a more contentious point)
- Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
Nevertheless, on examining the circumstances of the error as a whole, Cory believed that the jury had been properly instructed and the error was not sufficient to bring about an acquittal.
Based on Cory's second point, "If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit" (a more contentious point), the jury is essentially told to choose between two conflicting stories. Certainly, if the jury rejected all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonable doubt. However, if a jury could reject part of the evidence of the accused and still reasonably entertain a doubt as to his guilt based on other parts of the accused's evidence.
In a similar case, R v. S (WD) [1994] 3 S.C.R. 521, it was reiterated that it is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. Again, to put forth such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other, and yet, on a whole of the evidence, be left with a reasonable doubt. The effect of putting such a position to the jury is to shift the burden to the accused of demonstrating his presumption of innocence, since the jury might believe that the accused could not be acquitted unless the defence evidence was believed. It is evident that the trial judge erred in the case of W.D., making error in recharge as to the standard of proof required of the Crown. The Court examined whether the error was reversible in light of the correct instructions that had been given to the jury minutes prior to the recharge during the main charge. In other words, the trial judge's error of putting such an either/or proposition to the jury causes the exclusion of a third alternative: that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have reasonable doubt as to his guilt.
Where an error has been made in the instruction of jury members on the burden of proof in a criminal case, the fact that the trial judge correctly instructed the jury on that issue elsewhere in the charge is a strong indication that the jury were not in fact left in doubt as to the burden resting on the Crown.
As Sopinka J. dissented, credibility is a fundamental issue. When dealing with the burden of proof, the trial judge is dealing with the most fundamental rule of the legal game. It is especially important that it be very clear and unequivocal that the prosecution has not proved its case beyond a reasonable doubt if, after considering the evidence of the accused and the complainant together with any other evidence, there is a doubt. The charge absolutely did not make this clear to the jury.
Sopinka noted that the jury were told two things which were in conflict. First, the main charge, in dealing with the credibility of the accused, the Crown could fail to prove their case beyond a reasonable doubt even if the jury had a doubt about the credibility of the accused's story. Then, on the recharge, the Crown would have failed to discharge its onus only if they believed the evidence of the accused. The jury would be uncertain as to which version was correct and it's pure speculation that they would have accepted the first version rather than the second one, which was characterized by the trial judge as "better". This takes on additional significance in light of the statement to the jury that the charge might contain errors that would necessitate a recharge.
The burden of proof is the obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets its burden, the burden of proof switches to the other side. Burdens may be of different kinds for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim. After litigants have met the burden of production and their claim is being considered by a trier of fact, they have the burden of persuasion, that enough evidence has been presented to persuade the trier of fact that their side is correct. There are different standards of persuasiveness ranging from a preponderance of the evidence, where there is just enough evidence to tip the balance, to proof beyond a reasonable doubt, as in United States criminal courts.
Jury nullification is a concept where members of a trial jury find a defendant not guilty if they do not support a government's law, do not believe it is constitutional or humane, or do not support a possible punishment for breaking the law. This may happen in both civil and criminal trials. In a criminal trial, a jury nullifies by acquitting a defendant, even though the members of the jury may believe that the defendant did commit the alleged crime. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. A jury can similarly convict a defendant on the ground of disagreement with an existing law, even if no law is broken.
In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is simply abandoned by the prosecution. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the United States, an acquittal operates to bar the retrial of the accused for the same offense, even if new evidence surfaces that further implicates the accused. The effect of an acquittal on criminal proceedings is the same whether it results from a jury verdict or results from the operation of some other rule that discharges the accused. In other countries, the prosecuting authority may appeal an acquittal similar to how a defendant may appeal a conviction.
The presumption of innocence is the legal principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat.
Not proven is a verdict available to a court in Scotland. Under Scots law, a criminal trial may end in one of three verdicts: one of conviction ("guilty") and two of acquittal.
Reasonable doubt is a term used in jurisdiction of common law countries. Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems.
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by the state for public offences. There are nine enumerated rights protected in section 11.
R v Lifchus, [1997] 3 SCR 320 is a leading Supreme Court of Canada decision on the legal basis of the "beyond a reasonable doubt" standard for criminal law. Cory J outlined several core principles of the reasonable doubt standard and provided a list of points that must be explained to a jury when they are to consider the standard.
The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
R v Askov, [1990] 2 S.C.R. 1199, is a 1990 appeal heard before the Supreme Court of Canada which established the criteria and standards by which Canadian courts judge whether an accused's right under the Canadian Charter of Rights and Freedoms, Section 11(b) "to be tried within a reasonable time" has been infringed.
In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some secondary authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g. as "a statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense. The equivalent in civil cases is a statement against interest.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.
Strickland v. Washington, 466 U.S. 668 (1984), was a landmark Supreme Court case that established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by that counsel's inadequate performance.
United States criminal procedure derives from several sources of law: the baseline protections of the United States Constitution, federal and state statutes; federal and state rules of criminal procedure ; and state and federal case law. Criminal procedures are distinct from civil procedures in the US.
Jury nullification in the United States has its origins in colonial America under British law. In the United States, jury nullification occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment's Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.
Miazga v Kvello Estate, 2009 SCC 51 is a leading decision of the Supreme Court of Canada on how the tort of malicious prosecution applies to Crown attorneys and other public prosecutors. Specifically, the court held that there is no requirement for a public prosecutor to have a subjective belief that an accused person is actually guilty. Nor can there be a presumption of malice from a lack of reasonable and probable grounds.
In India according to Section 300 of the Indian Penal Code, 1860, murder is defined as follows:
Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 167 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Evidential burden or "production burden" is the obligation to produce evidence to properly raise an issue at trial. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law.
R v Wanhalla was a case in the Court of Appeal of New Zealand concerning how a judge should direct a jury in a criminal case as to interpretation of the standard of proof, beyond reasonable doubt. Australian jurist Brian Martin has described the judgments in the "decision as particularly helpful. They contain reviews of research, practices in other jurisdictions and primary issues in the debate."
