Trial Judgement: Difference between revisions
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*** bias/partiality, manner of testimony, demeanour, and apply common sense to the plausibility of evidence. | *** bias/partiality, manner of testimony, demeanour, and apply common sense to the plausibility of evidence. | ||
** The Judge has discretion [[Inferences|make inferences of fact]] where it is logically and rationally connected to evidence and accords with common sense. | ** The Judge has discretion [[Inferences|make inferences of fact]] where it is logically and rationally connected to evidence and accords with common sense. | ||
* Touch on relevant impermissible forms of analysis | |||
; ANALYSIS | ; ANALYSIS | ||
* Analyze accused testimony (Does the Judge Believe the Accused? If not, does it leave the Judge in doubt on any essential element?) | * Analyze accused testimony (Does the Judge Believe the Accused? If not, does it leave the Judge in doubt on any essential element?) | ||
Revision as of 07:30, 11 July 2021
All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution. |
General
- INTRODUCTION
- OVERVIEW
- BACKGROUND FACTS
- organize by headers
- Procedural facts
- Undisputed facts
- review of disputed evidence
- ISSUES
- List issues
- POSITION OF THE PARTIES
- ISSUE 1
- ISSUE 2
- ISSUE 3
- ANALYSIS
-
- ISSUE 1
- Governing Principles
- Principles Applied
- ISSUE 2
- Governing Principles
- Principles Applied
- ISSUE 3
- Governing Principles
- Principles Applied
- ISSUE 1
- CONCLUSION
- Articulate disposition and declare order(s)
Credibility Trial
- INTRODUCTION
- Identify accused and charges
- ISSUE
- Given the conflicting evidence, has Crown proven essential elements on a standard of proof beyond a reasonable doubt?
- POSITION OF THE PARTIES
- General summation of the positions of Crown and defence
- BACKGROUND/UNDISPUTED FACTS
- CONTESTED EVIDENCE
- Summarize disputed evidence by each witness
- witness #1
- witness #2
- ...
- accused
- LAW
- Burden of Proof remains on Crown and generally never shifts
- Standard of proof is beyond a reasonable doubt
- DW test
- Tools for Evaluating Evidence
- Judge may accept all, some, or none of a witness's evidence based on an assessment of reliability and credibility
- To that end, Judge may consider
- inconsistencies (with self, others, records, or real evidence),
- corroboration (with others, records, or real evidence),
- capacity to observe (opportunity to observe, emotional state, attention)
- capacity to remember (awareness of importance of observation at time, )
- bias/partiality, manner of testimony, demeanour, and apply common sense to the plausibility of evidence.
- The Judge has discretion make inferences of fact where it is logically and rationally connected to evidence and accords with common sense.
- Touch on relevant impermissible forms of analysis
- ANALYSIS
- Analyze accused testimony (Does the Judge Believe the Accused? If not, does it leave the Judge in doubt on any essential element?)
- In each analysis, apply the "tools for evaluating evidence" (above)
- Analyze defence witness testimony (Does the Judge Believe them? If not, does it leave the Judge in doubt on any essential element?)
- Analyze the alleged victim (Does the Judge believe the alleged victim? )
- Analyze the Crown witnesses (Does the Judge believe the witnesses? )
- Consider what evidence the Judge accepts, including testimony, records, and real evidence.
- Analyze whether on the accepted evidence, has the elements been proven beyond a reasonable doubt.
- CONCLUSION
- Articulate disposition and declare order(s)
- Judges should be cautious of the following typical errors
- finding that the accused tailored his evidence in response to hearing evidence from other witnesses.
- reversing the burden of proof in analysis by making the testimony a competition between the accused and crown witnesses.
- relying on bad character evidence without weighing probative vs prejudicial value.