I want to talk to you today a little bit about how to do closing submissions in a sexual assault case and I want to outline a couple of differences between judge alone versus jury trials because there’s certainly different considerations. So first of all, in all the sexual assault cases I’ve done if it’s a judge alone trial, I estimate it takes me between an hour to an hour and a half to do final submissions. If it’s a judge alone trial. For a jury trial, I like to keep it quicker. Juries lose interest. You know, you want to keep things lively and so that you have their interest and people’s attention spans only so long so I like to keep my closing submissions, hour, 45 minutes to an hour, I find it is pretty good. So what I do in a judge alone trial is I like to start with an overview of the position of the defence. If there’s reasonable doubt, that the accused should be acquitted. It’s just basically an overview and a skeleton outline of where I’m heading. I then head into all the credibility and reliability issues. I start reviewing the complainants. evidence and you’re not reviewing all the evidence, you’re getting the key points that establish reasonable doubt. What are the improbabilities, listed inconsistencies? What doesn’t accord with common sense? Why was their consent and what doesn’t make sense for their story and, and that that takes some time and it has to be done in a very systematic and organized way. I like to start with the most important ones first in descending order as well. I’ll then review if there’s other evidence or maybe police evidence or maybe other peripheral witnesses, I’d like to also point areas of reasonable doubt there that support my evidence, and also, a deal head on with problems in your case to you’ve got to you’ve got to show how it’s not a problem or soft pedaling or show that that you have evidence that counteracts that. So that’s all about credibility, and reliability. I talk a little bit about the law. It depends on the experience level of the judge because some judges, believe it or not, in the Superior of Court of Justice, we might have a newer judge who doesn’t even know much about criminal law yet. So, you might have to explain more about the law which might lengthen my submissions, I might present case briefs, but with experienced judges, you have to be careful, you don’t want to be pontificating to some judge who knows as much as you have by the law and really stick more to the facts. So, I, in two recent cases, for example, I had two very experienced Superior Court justices, we won both sexual assault trials. I only had to touch on the law, I just reminded them few key points. Now then, of course, most sexual assault trials your clients testify. So, I want to highlight the areas of their evidence, that creates reasonable doubt. Highlight why they’re credible, reliable witnesses and why they testify with sincerity and why their evidence should be accepted. And there might be a little bit of application to the law in law, sexual assaults very complicated. area, I might just touch on a few points for the judge. Sometimes I present a case brief of sentencing cases that especially if it’s a novel issue, I might have to show you an experience judge, a novel case, and then I ultimately wrap up. There’s a case called WD from the Supreme Court of Canada, I ultimately explain why there’s reasonable doubt based on the WD case. So that typically takes an hour to an hour and a half. It has to be organized very well. And it takes a lot of time. I mean, you’re the typical rape trial for example, sexual assault trial, might take 5,6,7 days of evidence. I’ve got organized that every night start preparing my submission. So you’re organizing like 30,40, 50 hours of evidence into an hour and a half hour to an hour and a half presentation. Now with jury matters. It’s the same type of consideration, but don’t get me wrong. I covered the same issues. But you also have to explain the law a little more carefully to the jury in a very systematic and simplified way and ultimately the jury, the judge tells the jury what the law is, but you should explain it. I explained it as well, but I keep it more interesting if I will , a little bit less pandemic with the judge wants to hear the points they don’t they’re not intended for the drama, elevation voice and things like that with a jury you want to be a little bit more passionate with your presentation. Judges don’t like that. You just keep to the facts. A little bit of passion goes a long way. And a little bit of interest in flexing your voice but with a jury, you really have to work on persuasion because there’s a lot of emotion involved in a jury and you have to keep it much shorter. I mean, I think I did a jury trial closing and a half hour once, it’s hard to do. But nice to do, if you can. 45 minutes, an hour max, really beyond that, I find I see some juror nodding off , despite my rhetoric and then keeping my passion up, but ultimately with a jury you have to bring it home. That look, you folks, you people are going to go home at night this person has to live with this rest of life. If there’s reasonable doubt, you go into that jury room and find it, if there’s reasonable doubt in this case. So it’s a real art form to make proper sentencing, proper closing submissions in court is an art form and to really synthesize it’s not easy synthesizing like 40 or 50 hours of evidence into a short presentation which has the highlights and you need to of course, remind the jurors, that I may have forgotten something that something may be important that you thought I should address, it’s really an oversight of my ego in that jury room and that you could think about that on your own. But ultimately with a jury trial, of course the judge does a closing jury charge where the judge also reviews the evidence and explains the law and how they should apply the law. So it’s a very interesting practice. You know both as a crown attorney and defence counsel. It’s a lot of work. A lot of preparation. And closing submissions are not easy to put together in a in a very systematic and organized way.
