The evidence that the police gather during an investigation can encompass a wide range of sources, including witness statements, the gathering and examination of physical objects, the relationship between people, places, and objects, the chronology of the events, forensic evidence such as DNA, electronic evidence such as computer or cellphone records, emails or text messages etc. The different types of evidence that the police will gather in a complicated criminal case such as murder or sexual assault charge are too numerous to list here. In complex criminal matters such as murder charges, sexual assaults, large-scale frauds, or drug conspiracy charges, the extent of the disclosure (i.e., evidence) provided to defence counsel can be in the hundreds, and sometimes thousands of pages of documents. It is the aggregate of all of the evidence presented in court by the Crown that a judge or jury will consider when attempting to reach conclusions about the guilt or innocence of the accused.
If you have been charged with a criminal offence, police will begin to gather evidence against you as soon as they begin their investigation. First and foremost, you have the right to remain silent in Canada. If the police have accused or charged you with a criminal offence, you should always exercise your right to remain silent by simply refusing to provide a statement and not answering any of their questions. You should also immediately ask to speak to a lawyer upon your arrest or detention. Evidence can take many forms, but the most common and often the most damning form of evidence is often an accused’s statement(s) to the police which they make during or following arrest. This is why a criminal lawyer will always advise an accused or a person who has been arrested for saying nothing to the police.
When investigators or law enforcement officers gather evidence, they are required to follow specific court-mandated protocols. The rules of evidence set out in Canadian case law (i.e., “common law”), the Criminal Code, and the Canada Evidence Act outline many of these rules which are followed by judges in Canadian criminal courtrooms.
What is Required for Evidence to be Admissible in Court?
The admissibility of evidence at any type of criminal trial, including sexual assault, assault or impaired driving cases, can be unpredictable. You and your lawyer should review every piece of evidence to fully understand the weight of the charges against you and develop a comprehensive strategy regarding how your charges can be defended or resolved in court.
Two basic considerations are given when determining the admissibility of evidence. The first is whether the specific evidence in question is relevant to proving the criminal charge in question. Any item of evidence must tend to prove or disprove an element of the criminal charge. Does the evidence in question ten prove mens rea (i.e., which is a Latin term for “guilty mind” or criminal intent of the accused, the actus reus of the offence (i.e. whether a criminal act took place) and the identity of the accused? Simply put, if a specific piece of evidence does not relate to a particular fact in issue, then it is considered irrelevant, and is, therefore, inadmissible in court. The rules of criminal evidence in Canada are overly complex and take years of study and courtroom experience to fully grasp.
For example, if you have been charged with sexual assault, evidence proving that you are employed full-time is likely irrelevant towards proving or defending the charge. As another example, the fact that an accused is a “bad person” or is an unsavoury character based on their background, is generally irrelevant and not admissible. Of course, there are exceptions to every evidentiary rule, and sometimes bad character evidence regarding the accused will become relevant in a criminal trial.
The second consideration is whether the evidence is credible (i.e. “believable”) or reliable (i.e., “accurate”). In a jury trial, the jury determines whether a particular witness is credible and reliable. In a judge-alone trial, a judge makes these factual determinations. The legal terms credibility and reliability usually apply to witnesses who have testified in court and whether or not their evidence is both believable and accurate. For example, a witness in a criminal trial may be found to be credible, but their evidence might not be accurate and should be rejected by the judge or jury.
What Qualifies a Person to be a Witness in a Criminal Case?
Ensuring that the court only receives evidence from qualified and competent witnesses, there are some considerations about who can and cannot testify. In criminal cases, testimony is considered to be evidence of a crime.
Generally, a person will be eligible to testify if he or she has personal knowledge about some element of the alleged crime and either swears or promises to tell the truth about what he or she knows.
The first and most obvious type of witness is someone who witnessed the crime as it occurred, such as the alleged victim or eyewitness to it. In many criminal cases, such as sexual assault, or other types of violent crime, eyewitness testimony can be emotional and unpredictable. Eyewitness testimony in identity cases often leads to miscarriages of justice, as sometimes witnesses are mistaken regarding who committed the crime, even though they may be credible. There are hundreds of examples of miscarriages of justice where a demonstrably innocent person has been convicted of very serious criminal charges, such as the notorious Guy Paul Morin murder case.
Another type of witness might be able to provide some information about a portion of the alleged crime or testify about “circumstantial” evidence. For instance, a store clerk might have seen an individual in his or her store when an item went missing when no one else was in the store, but the clerk may not have seen that the person stole the item.
Why You Need an Experienced Sexual Assault Defence Lawyer
If you have been charged with sexual assault, you need the services of a skilled criminal defence lawyer. First, it's your right to seek legal counsel and get their advice. Even if the police appear friendly, they are not on your side, and their job is to gather evidence that can be used against you.
Your best bet is to say nothing until you have had an opportunity to consult with a criminal defence lawyer. You may inadvertently say something that may hurt your case. Your criminal defence lawyer will review the facts of your case and your version of events and advise you about the best way to proceed.
The experienced and knowledgeable sexual assault defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.