Syllabus
December 2, 2021 2:19 PM
• Class will be Asynchronous Learning + Synchronous classes starting at 3:10 on Tuesdays
• Will upload all lecture material
• Zoom lectures at 3:10 are required
○ Founds under contents – materials – virtual classroom
• Online learning tips
○ Organize and plan
○ Manage your time
○ Engage and communicate
○ Stay on top of work
• Will explore structure , function and process of criminal courts in Canada
○ Through facets of courts
▪ Through tensions and challenges at different stages
• Will move through stages and process of courts though a critical lens
• Remember courts are only one piece of the CJS
• Will explore different stages of the court process
○ Pre trial
○ during
○ Post-trial
• Looking at 'normal' aspects of the Criminal court with a critical eye
• Expose different tensions and challenges embedded within Criminal courts
, Class 2 Readings
September 14, 2021 8:43 PM
On The Theory of American Adversity Criminal Trial; Gary
Goodpaster- 118-139
• The adversarial system is a foundational feature to the legal system
• It underlies all law and thinking about law
• There is no single type of adversarial system
• Greeks + Romans had their own systems, yet were different than English systems
• e.g., trial by combat is one form as are formal debates, football games, elections etc...
• So why do we structure our adversary criminal trial the way we do
Determinative Characteristics of Adversary Trial Systems
• There are several features of adversarial trial systems
• The roles of the judge + decision makers
• The roles of the parties / reps
• The manner in which 'facts' are proven
• The obligations of the parties to each other
• Side constraints that skew final decision making
• The criminal trial is a storytelling contest of stories composed under significant restraints
• Major features
• Facts are proven through persuasion
• A jury assesses the stories and assigns criminal liability
• Parties act through attorneys
• Parties are dedicated to winning, not truth or fairness
• Prosecution must present first, meeting a high burden of proof - "beyond a reasonable doubt"
• Complicated legal instructions are given to the jury to focus and limits its decisional discretion
Theories of Adversary Criminal Trial
• Truth Finding Theory
• Claims that this is the best truth finding system
○ Based on claims that " truth is best discovered by powerful statements on both sides of the
question"
• Assumes that this trial discovers " what happened"
• Debunking
○ Nobody, not scholars, scientists, engineers etc... uses a bi-polar trial to determine the 'facts'
▪ We want important matters to be able to be tested and replicated from any source
▪ Trials control the information that can be used, making them less reliable
○ Parties are committed to winning , not discovering the truth
▪ Principles of non-accountability
• Lawyer is not responsible for means used towards an end
▪ Principles of professionalism
• Lawyer must maximize the chance that the client will prevail
○ The jury can be easily mislead as they are not well versed in law or the ways of lawyers
▪ Rules of evidence can keep relevant info from juries
○ The unilateral discovery rule ( prosecution must disclose info pre-trial but defense does not)
can let the defense manipulate facts to their advantage
○ Burden of 'beyond a reasonable doubt' is too high
• Fair Decision Theory
• Trials are not a good way to uncover truth, as truth is unknown.
, ○ The best we can do is to arrange a fair dispute resolution
• Evidentiary rules are necessary to ensure suspect evidence is not used
• Debunking
○ There is nothing inherently unfair about requiring testimony ( self-incrimination), trials
before judges, or using different burdens of proof
○ The rights of the defendant are not matched by the rights of the prosecution
○ The trial is skewed in favor of the defense
○ Rebuttal to ' rights offset' - rights given to offset resources of prosecution
▪ These rights are more than a counterweight
▪ Giving the defendant the same resources as the government would be
• Truth-Finding and Fair Decision Theories Joined
• Truth and fairness are connected and are not to be pursued independently
• The idea is that a fair procedure = Truth
• Two main ideas
○ An unfair decisional procedure may lead to erroneous fact finding
○ There is a need to account for the truth dysfunctionality of trials.
• The Relationship Between Truth Finding and Fair Decision Procedures
• A fair procedure may result in an unbiased result, that does not mean it is true
• Truth is what actually happened , not was what portrayed to happen
• It is assumed that a fair trial results in the truth but that is not the case
• Criminal Trials and the Manufacturing of Fact
• Trial decisions involve both the determination of facts and the application of law to those facts
• Legal facts are socially constructed through evidence rules, court-room etiquette, traditions,
rhetoric of judged, scholasticisms of law school education
○ Making facts an edited version of reality
• e.g., A mark on a rifle, multiple explanations but the meaning relies in explanation, however
different explanations interpret the mark differently
○ The mark only becomes a fact when it finds a place in an explanation, not in of itself
○ If the owner is an employed family man w/o a criminal record = harmless reasoning
○ If the owner is a ex-con = mark was there due to a crime
• The Rights Theory of Adversary Criminal Trial
• Viewed that- A defendants trial rights are designed in part to make it difficult for the govt to win
any prosecution, OR
• To protect the defendant from prosecution abusing their power of persecution
• Criminal law is the govt's greatest power and can be used to control their populous
○ They have a large amount of resources, Judges are unlikely to oppose the govt/ bureaucratic
justice
○ A defendants trial; rights are there to intervene and handicap the govt and erroneous
convictions
• Other ways to reduce error in trials
○ Equalizing resources
• Criminal trials can be used to enforce a regime of individual constitutional rights
○ I.e. if evidence is obtained by breaking these rights they are not able to be used
• These theorists also see the 'must win ' attitude of defense attorneys as necessary
○ They must do all they can to fight for the rights of their client
, Class 2 Recorded Lecture
September 7, 2021 3:15 PM
• The role of the courts in Criminal Justice Systems
○ Interpreting what constitutes a crime
○ Determining the guilt or innocence of the accused ( sanction, upholding rights of individuals,
actors, and society)
○ Power in shaping criminal law
○ Four ways common law is created
▪ If parliament has acted outside of their power
• Outside of their jurisdiction, power , etc...
▪ If a law has violated a charter right
• Law that breaches freedom of speech, right to life, liberty and security, fair trial
etc...
▪ Through interpretation of the Criminal Code and other statutes
▪ Through creation of common law defenses
• The Criminal court process – the basics
○ Guided by the criminal code of Canada, common law, the Charter of Rights and Freedoms
and other statutes.
▪ Presumption of innocence
▪ Pleas
▪ Burden of proof and reasonable doubts
• Mens rea and actus reus
▪ Trial by judge or jury
▪ Sentencing
• Maximums, mandatory minimums
• The Stages of the criminal court process: Pre- Trial
○ Preliminary inquiries : Satisfying the judge
○ Stay or withdrawal of charges: insufficient evidence or inadmissible evidence, diversion
programs
○ Judicial interim release ( bail )
▪ Bail hearing processes
▪ Use of remand ( being denied bail, kept in remand)
▪ Bail is presumed to be given, Unless crown can prove that the bail should be denied
( show cause)
• Accused has to present a case why they should receive bail:
○ for serious crimes such as murder, terrorism, high treason, drug
trafficking, organized crime, firearms
• Bail would not be granted if:
○ Large amount of charges, no permanent address, information provided
by police on criminal history, men are denied bail more often than
women.
○ Plea agreements: negotiations around the nature of charges, sentences and facts
▪ Controversial nature of plea negotiations
• Can be used for guilty parties to avoid punishments ( Karla Homolka)
• Can cause innocent people to be convicted on the merit of not having the
resources to go to court
○ Disclosure of evidence: on the part of the prosecution
▪ Prosecution Must disclose any evidence that would be advantageous to the defense,
defense does not have to return the 'favor'
December 2, 2021 2:19 PM
• Class will be Asynchronous Learning + Synchronous classes starting at 3:10 on Tuesdays
• Will upload all lecture material
• Zoom lectures at 3:10 are required
○ Founds under contents – materials – virtual classroom
• Online learning tips
○ Organize and plan
○ Manage your time
○ Engage and communicate
○ Stay on top of work
• Will explore structure , function and process of criminal courts in Canada
○ Through facets of courts
▪ Through tensions and challenges at different stages
• Will move through stages and process of courts though a critical lens
• Remember courts are only one piece of the CJS
• Will explore different stages of the court process
○ Pre trial
○ during
○ Post-trial
• Looking at 'normal' aspects of the Criminal court with a critical eye
• Expose different tensions and challenges embedded within Criminal courts
, Class 2 Readings
September 14, 2021 8:43 PM
On The Theory of American Adversity Criminal Trial; Gary
Goodpaster- 118-139
• The adversarial system is a foundational feature to the legal system
• It underlies all law and thinking about law
• There is no single type of adversarial system
• Greeks + Romans had their own systems, yet were different than English systems
• e.g., trial by combat is one form as are formal debates, football games, elections etc...
• So why do we structure our adversary criminal trial the way we do
Determinative Characteristics of Adversary Trial Systems
• There are several features of adversarial trial systems
• The roles of the judge + decision makers
• The roles of the parties / reps
• The manner in which 'facts' are proven
• The obligations of the parties to each other
• Side constraints that skew final decision making
• The criminal trial is a storytelling contest of stories composed under significant restraints
• Major features
• Facts are proven through persuasion
• A jury assesses the stories and assigns criminal liability
• Parties act through attorneys
• Parties are dedicated to winning, not truth or fairness
• Prosecution must present first, meeting a high burden of proof - "beyond a reasonable doubt"
• Complicated legal instructions are given to the jury to focus and limits its decisional discretion
Theories of Adversary Criminal Trial
• Truth Finding Theory
• Claims that this is the best truth finding system
○ Based on claims that " truth is best discovered by powerful statements on both sides of the
question"
• Assumes that this trial discovers " what happened"
• Debunking
○ Nobody, not scholars, scientists, engineers etc... uses a bi-polar trial to determine the 'facts'
▪ We want important matters to be able to be tested and replicated from any source
▪ Trials control the information that can be used, making them less reliable
○ Parties are committed to winning , not discovering the truth
▪ Principles of non-accountability
• Lawyer is not responsible for means used towards an end
▪ Principles of professionalism
• Lawyer must maximize the chance that the client will prevail
○ The jury can be easily mislead as they are not well versed in law or the ways of lawyers
▪ Rules of evidence can keep relevant info from juries
○ The unilateral discovery rule ( prosecution must disclose info pre-trial but defense does not)
can let the defense manipulate facts to their advantage
○ Burden of 'beyond a reasonable doubt' is too high
• Fair Decision Theory
• Trials are not a good way to uncover truth, as truth is unknown.
, ○ The best we can do is to arrange a fair dispute resolution
• Evidentiary rules are necessary to ensure suspect evidence is not used
• Debunking
○ There is nothing inherently unfair about requiring testimony ( self-incrimination), trials
before judges, or using different burdens of proof
○ The rights of the defendant are not matched by the rights of the prosecution
○ The trial is skewed in favor of the defense
○ Rebuttal to ' rights offset' - rights given to offset resources of prosecution
▪ These rights are more than a counterweight
▪ Giving the defendant the same resources as the government would be
• Truth-Finding and Fair Decision Theories Joined
• Truth and fairness are connected and are not to be pursued independently
• The idea is that a fair procedure = Truth
• Two main ideas
○ An unfair decisional procedure may lead to erroneous fact finding
○ There is a need to account for the truth dysfunctionality of trials.
• The Relationship Between Truth Finding and Fair Decision Procedures
• A fair procedure may result in an unbiased result, that does not mean it is true
• Truth is what actually happened , not was what portrayed to happen
• It is assumed that a fair trial results in the truth but that is not the case
• Criminal Trials and the Manufacturing of Fact
• Trial decisions involve both the determination of facts and the application of law to those facts
• Legal facts are socially constructed through evidence rules, court-room etiquette, traditions,
rhetoric of judged, scholasticisms of law school education
○ Making facts an edited version of reality
• e.g., A mark on a rifle, multiple explanations but the meaning relies in explanation, however
different explanations interpret the mark differently
○ The mark only becomes a fact when it finds a place in an explanation, not in of itself
○ If the owner is an employed family man w/o a criminal record = harmless reasoning
○ If the owner is a ex-con = mark was there due to a crime
• The Rights Theory of Adversary Criminal Trial
• Viewed that- A defendants trial rights are designed in part to make it difficult for the govt to win
any prosecution, OR
• To protect the defendant from prosecution abusing their power of persecution
• Criminal law is the govt's greatest power and can be used to control their populous
○ They have a large amount of resources, Judges are unlikely to oppose the govt/ bureaucratic
justice
○ A defendants trial; rights are there to intervene and handicap the govt and erroneous
convictions
• Other ways to reduce error in trials
○ Equalizing resources
• Criminal trials can be used to enforce a regime of individual constitutional rights
○ I.e. if evidence is obtained by breaking these rights they are not able to be used
• These theorists also see the 'must win ' attitude of defense attorneys as necessary
○ They must do all they can to fight for the rights of their client
, Class 2 Recorded Lecture
September 7, 2021 3:15 PM
• The role of the courts in Criminal Justice Systems
○ Interpreting what constitutes a crime
○ Determining the guilt or innocence of the accused ( sanction, upholding rights of individuals,
actors, and society)
○ Power in shaping criminal law
○ Four ways common law is created
▪ If parliament has acted outside of their power
• Outside of their jurisdiction, power , etc...
▪ If a law has violated a charter right
• Law that breaches freedom of speech, right to life, liberty and security, fair trial
etc...
▪ Through interpretation of the Criminal Code and other statutes
▪ Through creation of common law defenses
• The Criminal court process – the basics
○ Guided by the criminal code of Canada, common law, the Charter of Rights and Freedoms
and other statutes.
▪ Presumption of innocence
▪ Pleas
▪ Burden of proof and reasonable doubts
• Mens rea and actus reus
▪ Trial by judge or jury
▪ Sentencing
• Maximums, mandatory minimums
• The Stages of the criminal court process: Pre- Trial
○ Preliminary inquiries : Satisfying the judge
○ Stay or withdrawal of charges: insufficient evidence or inadmissible evidence, diversion
programs
○ Judicial interim release ( bail )
▪ Bail hearing processes
▪ Use of remand ( being denied bail, kept in remand)
▪ Bail is presumed to be given, Unless crown can prove that the bail should be denied
( show cause)
• Accused has to present a case why they should receive bail:
○ for serious crimes such as murder, terrorism, high treason, drug
trafficking, organized crime, firearms
• Bail would not be granted if:
○ Large amount of charges, no permanent address, information provided
by police on criminal history, men are denied bail more often than
women.
○ Plea agreements: negotiations around the nature of charges, sentences and facts
▪ Controversial nature of plea negotiations
• Can be used for guilty parties to avoid punishments ( Karla Homolka)
• Can cause innocent people to be convicted on the merit of not having the
resources to go to court
○ Disclosure of evidence: on the part of the prosecution
▪ Prosecution Must disclose any evidence that would be advantageous to the defense,
defense does not have to return the 'favor'
