How does the domestic assault trial proceed? I want to talk a little bit about that today. Break it down and make it most simple terms, What’s the trial process? So, what’ll happen, so your case is set for trial today. What’s going to happen? So, your case will be called, and the Clerk of the Court is going to read you the charge and the Judge will read the charge and you’re going to plead not guilty. Typically, in the average domestic assault trial they’re the witnesses would consist normally of the complainant, the victim, they are going to testify that’s called examination in chief so that the crown is going to put them up on the witness stand they might be a man that’s a victim, let’s say it’s a woman, and they’re going to testify in chief so the crowns going to ask them questions. Who, what, when, where, why? Questions, in other words, not leading questions, but questions with open ended questions which don’t suggest the answers. And that witness is going to testify about their background. They’re going to testify about what happened that day. In detail. Introduce any photographs of injuries and go through all of that and that typically might take but let’s just say that’s takes an hour of examination in chief. Now, the role that defence lawyer that at that point is to do what’s called cross examination, which means you’re doing mostly leading questions which suggest an answer, that’s what cross examination means. And it’s an art form. You’re trying to, frankly damage the credibility and reliability of the witness, confront them with inconsistencies between their evidence today and their statement to police, confront them with improbabilities motives to lie and your client’s version of events. You have to plan this. You plan very carefully, but there’s a spontaneity to it, there’s an artform. It probably takes I would say, five years to become half decent at cross examination. Ten years to become good. If you really work at it, you can prove beyond there, a lot of lawyers, their learning curve ends at ten years but if you keep working at it, you can become incrementally better, it’s a real art form and ultimately you have to confront that witness. And you’ve got a script to do that but there’s a spontaneity where you have to flow off your script. There’s a lot of planning, a lot of work. I can’t even tell you the number of hours I spent preparing to cross examine a complainant, its sleepless nights going into this. Now, at the end of the cross examination, now let’s say that takes three to two hours, or sometimes more, sometimes less.
The crown is allowed to do what’s called re- examination at that point, which means if there’s anything to clarify and clear or that new arose the crown couldn’t have anticipated there. They’re allowed to ask again open-ended questions. Miss. Baker, I want to direct your attention to a question Mr. Kruse asked you, and you’ve had this response. Can you please clarify that issue? There was something uncertain about it. So, the Judge will make rulings by the way, there’s evidentiary rules, there’s rules of what you’re allowed to ask. It’s very tight. You have to know this. And the Judge gets very frustrated when they see an inexperienced lawyer ask an inappropriate question. A typical good lawyer is rarely going to be objected to because they know what the heck their doing and their important questions for both the crown. But when you see an inexperienced lawyer, you may see objections every five seconds, which ruins the flow, makes for a difficult day.
So, after the reexamination now, maybe there’s a police witness who saw the injuries who attended on the 911 call maybe the crown introduces the 911 tape maybe if there’s medical evidence that might be introduced too if there’s injuries through documents. Now, at the end of the case, defense counsel and the client have to make a decision about whether the accused should testify and this is a delicate question, because sometimes, if you’re in a trial and the complainant is done so poorly that you feel there’s already reasonable doubt, you might decide not to call your client. And I say might because invariably in almost every domestic assault case, I’ve done frankly, I prepare my witnesses for hours. I’m very confident before they go on the stand or I won’t put them on the stand. If they can’t be prepared. The odd person can’t be. Maybe they’re articulate maybe they’re nervous etc. But we work on it to get them there, I can’t think of too many clients like that. There’s been the odd case that I’ve been involved in that I’ve been so confident that reasonable doubts there, we don’t call the client. But if it’s iffy, or even if you think it’s pretty good, it’s risky not to call, that client especially if he’s or she is very clear, she’s very well prepared. Well, if you know they’re going to do well put them up on the stand there’s no question that that decision to me made. That decision is made in consultation with the client. So, I will often take a break, after break, talk to the client. Explain my view, do you need to testify it’s up to you, do you want to justify we’ve got reasonable doubt here enough. So, it’s an again an art form. Some judges will actually send you subtle signals that you may not need to lead your client, maybe the witness has been beat up so bad. I shouldn’t use that term. Maybe their credibility and reliability been damage so bad you need to call the client and the judge might, Mr. Kruse do really want to call your client I have seen them do that. It saves court time if they already know they’re going to acquit. Why not? I don’t know if their supposed to do that. Some judges particularly earlier in my career seems like all judges do that fewer do that now. Now. Your client testifies it’s the same format you question your client examination in chief, the Crown cross examines them, and then you get a chance to re- examined for clarifying questions or questions that weren’t anticipated in chief. And there’s evidentiary rules there might be objections to the judge rules on them. You know, if you want to make an objection you say, I stand up and say object. Respectfully, Your Honor, that’s a hearsay question. And the judge makes a ruling. Just so now, if there’s any other defense evidence, maybe there’s text messages you’re introducing, but you would have done that to cross examination, anyway, your client comments on them. You might have some other evidence, but usually it’s just your client who’s called on a domestic assault matter, unless there’s another witness that you want to call who saw the incident. Now, there’s final closing argument or submissions. So, if you’ve called your client as a as a witness to defense makes their closing submissions first about summarizing the evidence, getting the key points explained Reasonable Doubt within the context of law, why the client should be acquitted that that might take 30-45 minutes, sometimes an hour depending on the case. By the way, your examination and cross examination your client could take one to three hours. It just depends on the examination. Might take 45 minutes to hour cross examination, Crowns tend to be quicker through cross-examination You know why? Because they don’t have a statement to work out with usually because your client didn’t give a statement and they just tend to be quicker than defense counsel with cross examination. The crow then does their submissions that can be anywhere from half are typically half hours. You might that might be long and a short trial day but sometimes longer, and then the judge will make a decision well, in this day and age most judges will put over their decision for another day. You know, when I first started practicing law, the interesting things is judges would do their decisions right off the cuff. I was always impressed with that; how clever they were to be able to do that. And it seems like they don’t do that anymore. I’m not sure why I guess I guess they want to be more precise and it works for me. Saw some fantastic judges when I first started my career to just do off the cuff judgment Perfect, perfect clarity. Perfect Words never be appealed, their bright people. Not to say the judged aren’t bright now they just tend not to do that the case will go over. So, there it is in nutshell. That’s what I’ll describe what I would call a full day domestic assault trial. It’s going to take maybe four or five, six hours if the court sits late. Sometimes trials take longer for a domestic assault. I’ve been involved in three-day trials and it depends on the case, but the typical domestic assault will hopefully be able to finish in one full day. So, there you have it. There’s a simplified version of the trial process for domestic assault.