Example Preliminary Jury Instructions

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Introduction

3.1 Introduction

(Last revised June 2012)

[1] Members of the jury, you have been chosen to hear this case.

[1.1] As I told you, a jury trial normally begins with twelve jurors. Given the anticipated length of this trial, I decided that it is in the interest of justice to select thirteen/fourteen jurors in this case. This is to ensure that a complete jury is available to deliberate.

[2] The oath or affirmation you have taken requires you to listen closely to the evidence that will be presented and to decide this case solely on that evidence and the instructions that I give you.

[3] I will now describe your duties as jurors and the procedure that we will follow during the trial. I will also explain to you some of the rules of law that apply in this case.

[4] During and at the end of the trial, I will give you specific and detailed instructions about the rules of law that apply to this case. You must listen carefully to all of these instructions.

[4.1] I remind you that the law allows only twelve jurors to deliberate, and therefore I will have to reduce the jury to twelve before deliberation by drawing numbers at random. The remaining twelve jurors will have the duty to deliberate and decide whether (NOA) is guilty or not guilty.

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3.2 Duties of Jurors

(Last revised March 2011)

[1] You are the sole judges of the facts. You must decide this case only on the evidence presented to you in this courtroom.

[2] I am the sole judge of the law, and it is your duty to accept the law as I explain it to you. You must not use your own ideas about what the law is or should be, and you must not rely on information about the law from any other source.

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3.3 Evidence Defined

(Last revised June 2017)

[1] Your decision must be based only on the evidence presented in the courtroom. Evidence is the testimony of witnesses and items entered as exhibits. It may also consist of admissions.

[2] Evidence includes what each witness says in response to questions asked. The questions themselves are not evidence unless the witness agrees that what is asked is correct. Only the answers are evidence.

[3] [1] The Crown and the defence (or (NOA)) may also agree about certain facts. When that happens, no evidence is required. Whatever they agree about is a fact in this case. This is called an “admission.”

(Where appropriate, include para. [4])

[4] In this case you may be required to view (specify, e.g., photos from the autopsy or crime scene) and hear the testimony from (specify, e.g., the doctor who conducted the autopsy or a blood spatter expert). You may find this evidence to be graphic (or specify, e.g., upsetting). If at any time you require a break when we are considering this evidence, please put up your hand and let me know.

[5] There are also some issues or items that you have been aware of that are not evidence. If I instruct you to disregard any of those issues or items, you must do so. You must not consider or rely upon them to decide this case.

[6] In particular, the charge in the indictment that you heard read out when we started this case is not evidence. What the lawyers and I say when we speak to you during the trial is not evidence.

[7] What you hear outside this courtroom about this case or about any of the persons involved in it is not evidence. What you hear on radio, or see on television, in the newspaper or any Internet source, or what you may have heard from other persons is not evidence. You must ignore it completely. You must avoid all media coverage of this case. You must not do your own research. You must consider only the evidence put before you in the courtroom.[2]

[1] When formal admissions are made under the Code, s. 655, paragraph [3] or a modification of Mid-Trial 7.1 should be given. Where there are no formal admissions, para. [3] should be omitted.

[2] As a precaution, most judges ensure that jurors do not take cellphones or other electronic devices into the jury room.

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3.4 Evidence Admitted for a Limited Purpose

Note[1]

(Last revised March 2011)

[1] Sometimes, certain evidence can only be used for a specific purpose. If that happens here, I will tell you how you may use the particular evidence in deciding this case. You must consider the evidence only for the purpose I describe. You must not use it for any other purpose.

[1] This instruction is optional. Some judges may prefer to omit it as a Preliminary Instruction but use it later, if appropriate, as a Mid-Trial Instruction.

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3.5 Direct and Circumstantial Evidence

Note[1]

(Last revised March 2011)

[1] I will now explain the meaning of the terms “direct evidence” and “circumstantial evidence.”

[2] Suppose the question is whether it was raining outside. A witness testifies that he or she saw it raining outside. That is direct evidence of the fact that it was raining.

[3] Contrast this with a witness who testifies that he or she saw someone enter the courthouse wearing a raincoat and carrying an umbrella, both dripping wet. You might infer from this testimony that it was raining outside. This is circumstantial evidence of the fact that it was raining outside.

[4] Exhibits may also provide direct or circumstantial evidence.

[5] In making your decision, you can take both kinds of evidence into account. Your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial.

[1] These are optional instructions. Many judges take the view that an instruction on the difference between direct and circumstantial evidence is unnecessary in opening to the jury. Reference to it in the summing-up is adequate. Others take the position that some instruction is required so that jurors understand:

(i) that there need not be direct evidence of every essential element of the offence charged;

(ii) that the essential elements of the offence may be proved by circumstantial evidence;

(iii) that circumstantial evidence involves drawing an inference; and,

(iv) that circumstantial evidence is perfectly good evidence, not an inferior form of proof.

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3.6 Irrelevance of Prejudice and Sympathy

Note[1]

(Last revised January 2018)

[1] Keep an open mind as the evidence is being presented. Do not be influenced by sympathy for or prejudice against anyone.

[1] This instruction may not be adequate in some circumstances where, for example, issues of gender, race, culture, religion, or class may arise. See, for example, R. v. Barton, 2017 ABCA 216, at paras 127-130, 162. In these situations, it is advisable to consult with counsel in preparing your instructions.

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3.8 Conduct of Jury

(Last revised June 2012)

[1] During the trial, you may discuss the case amongst yourselves but only when all of you are together in the jury room. You must not, however, come to any conclusions about the case until you have heard all of the evidence, listened to the lawyers on both sides, and received my instructions about the law. Keep an open mind.

[2] Some of your family, friends, fellow workers or others may ask you about jury duty. You must not talk to them about the case. Nor should you discuss the case with anyone involved in it, including (NOA), (NOC), their friends or families, witnesses, investigating officers, or lawyers. You may, of course, give a polite greeting to someone you see around the courthouse, but do not talk about the case with anyone except your fellow jurors.

[3] If anyone else approaches you to discuss any part of the case, please tell that person that you cannot discuss it. If the person does not stop, please tell me about it. I will deal with it.

[4] When you arrive at the courthouse each morning and return to it after lunch each afternoon, please go straight to the jury room. When you leave at lunch time or at the end of your duties for the day, please leave directly from the jury room. Please do not linger around the halls or other places in the building before or after our sittings.

[5] Finally, you are not lawyers or investigators. You must not investigate, seek out any information, or do any research about the case, the persons involved in it, or the law that applies to it by any means, including the Internet. Do not consult other people or other sources of information, printed or electronic.

[6] Do not use the Internet or any electronic device in connection with this case in any way. This includes chat rooms, Facebook, MySpace, Twitter, apps, or any other electronic social network. Do not read or post anything about this trial. Do not engage in tweeting or texting about this trial. Do not discuss or read anything about this trial on a blog. Do not discuss this case on e-mail. You must decide the case solely on the evidence you hear in the courtroom.

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Presumption of Innocence and Burden of Proof

5.1 Presumption of Innocence, Burden of Proof and Reasonable Doubt

(Last revised March 2011)

[1] The first and most important principle of law applicable to every criminal case is the presumption of innocence. (NOA) enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence put before you, satisfies you beyond a reasonable doubt that s/he is guilty.

[2] Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proved beyond a reasonable doubt. These rules are inextricably linked with the presumption of innocence to ensure that no innocent person is convicted.

[3] The burden of proof rests with the Crown and never shifts. There is no burden on (NOA) to prove that s/he is innocent. S/he does not have to prove anything.

[4] Now what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[5] It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. You must not find (NOA) guilty unless you are sure s/he is guilty. Even if you believe that (NOA) is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to (NOA) and find him/her not guilty because the Crown has failed to satisfy you of his/her guilt beyond a reasonable doubt.

[6] I will explain to you the essential elements that the Crown must prove beyond a reasonable doubt to establish (NOA)’s guilt. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence. You must decide, looking at the evidence as a whole, whether the Crown has proved (NOA)’s guilt beyond a reasonable doubt.

[7] If you have a reasonable doubt about (NOA)’s guilt arising from the evidence, the absence of evidence, or the credibility or the reliability of one or more of the witnesses, then you must find him/her not guilty.

[8] In short:

1. The presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.

2. If, based upon the evidence, you are sure that (NOA) is guilty of the offence(s) with which s/he is charged, you must convict him/her of that offence since that demonstrates that you are satisfied of his/her guilt beyond a reasonable doubt.

3. If you have a reasonable doubt whether (NOA) is guilty of the offence(s) with which s/he is charged, you must give him/her the benefit of that doubt and find him/her not guilty.

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