A large part of our first practice is defending people are charged with sexual assault and other sexual crimes. I’m here today to talk to you about a topic that clients are very interested in, obviously sexual assaults, a series of fans and they’re facing, sometimes years in jail, they want to know how we are going to win their trial. So that’s what I’m going to talk about here today, strategies of how to win a sexual assault trial. This is not to be confused with how to get a charge dropped, I covered that in another video, you should watch that video in terms of strategies to try and get the crown to withdraw charge, a sexual assault charge without going to trial. So the case is going to trial. And I’m going to just start from the beginning about how we approach the case, the strategies we use and how we can ultimately try and create Reasonable Doubt because that’s what it’s all about. It’s the burden of proof is on the crown to prove a case beyond a reasonable doubt. And you have to realize reasonable doubt, that’s a powerful burden. With the presumption of innocence the accused has when you look at it this way, you know if it’s a he said she said case, there’s just one word against the other, you know, Reasonable Doubt is far closer to mathematical certainty than it is to mere balance of probability if you don’t have to be mathematically certain. But it’s, it’s far closer to that than it is to mere probability. This is not a lawsuit where you, you just believe one person over the other, the crown has to prove the case beyond a reasonable doubt. In other words, the the the the judge or the jury has to be sure it happened. And that’s our job. When the client tells us they didn’t do it, that it was consensual, or they didn’t have any sex at all, or there’s a mistaken belief and said, we’re here to try and create a reasonable doubt in and try and win the case. It starts right from the get go. The very first day you retain us. We order the disclosure, and that is the complainants video statement, the police reports, all of the nodes, all the documents, the text messages, emails, whatever is in the crowds possession, possession, you know, sexual assault evidence a kit that if they went to the hospital, these cases can be very complex. Sometimes there’s hundreds of pages of disclosure and a big case. And you’re facing a years in jail. If you lose this through the client says, Look, I didn’t do it. Okay, well, let’s look at this disclosure. So I get the disclosure. And this is before I even meet with the client review it and I’m analyzing it from A to Z these hundreds of pages of documents. And I’m saying to myself, look, can I win this case? What are the odds of winning? What are the strengths and weaknesses of the case? What are the improbabilities? And the complainants statement that this he or she have motives to lie? Or they’re in consistencies? Or they’re things that don’t accord with common sense? You know, what is the law in this area? Like you have to apply all of your experience skill set law and mostly common sense, frankly, as well to to understanding what are the odds of winning this case. So with that in mind, and that that process can take many days in this type of case before I come to a full legal opinion. There’s a lot of work involved, because again, we’re talking about sometimes hundreds of pages of disclosure, multi our video statements from different witnesses, including the complainant sustainment and all the after witnesses who SAR after before the party or what have you. Sometimes there’s many witnesses, but ultimately it usually boils down to his or her word against the other. So that’s why these cases are often winnable when the accused says they didn’t do it. So I review that all and then I meet with the client so I start off by reviewing it it’s the first of many meetings with this a setting to trial maybe too many meetings to count I’m talking like you know sometimes dozens of hours of meetings with the client before the trial commences. Now, I’m reviewing with the client, I go through it generally with them and details and specifics. And then I asked them for their version events. So they’re going to tell me one of many things they might tell me, they did it, okay. So if you did it, we need to then crack it the best deal we can for you we need to negotiate the lightest possible jail sentence we can that’s my role when they say they did. They say they didn’t. They didn’t do it. In other words, either a. It was consensual she or he agreed to the sexual act. Or I have a mistaken belief in consent. I thought they were agreement always possible to stake and that’s a valid defense. Or see it didn’t happen. It never happened. They’re making this up the clients also I also go through the client with any motive to lie because there’s often more to lie in in sexual assault cases, there’s no question about that. And that’s a powerful tool to win these cases when you can show a motive for why as well. So the client gives me their verbal version advanced. And I say to them, Look, this is the first of many meetings, we’re just getting started. But I want you to come back to the office tomorrow, for example, and I need to go through these reports, it may take several days, there’s hundreds of pages here, you need to watch the video, I need them to take notes I need them do eventually put together a detailed statement. We’re going to meet on multiple occasions, and we’re going to, I’m going to refresh their memory with more details. And that statements going to go through revisions until the statements in the chronological depth of detail, I want it all the clients words, but you know, sometimes clients don’t put it together the way you need it to get ready for trial. So these two documents are going to become the basis for our defense. the Crown’s version of events, 200 pages of different documents and evidence at our clients, you know, 15 page 20 page type statement with all the details. Now we get the matter set for trial. And whether it’s a judge or jury trial, how do I approach this case? What do I do? Well, first of all, you don’t have to prove motives to lie in any criminal case. But I can tell you, if you can find a motive to lie in a sexual assault case, that’s a powerful tool. And there’s so many motives to lie that are available in this type of case, like, I’ll just give you one of a dozen that I can think off the top my head. A client has consensual sex with a girl who’s got a boyfriend. She felt guilty about it, the boyfriend found out it was all consensual. And now I said the point the boyfriend finds out, she doesn’t want to admit that and she says it’s a rape and cause foul. That happens. I hate to say it that happens. There’s there’s one example of a false complaint and sexual assault. But the police believer she gave a statement she sound convincing. She was crying in the statement. So what do I do? Well, there’s different strategies, if it’s if it’s consensual. If it’s mistaken belief consent, where it didn’t happen, there’s different strategies for each. But one of the things I need to think about is pre trial applications. In these instances, there’s often counseling or medical records or other records, and I need to bring what’s called a third party records application. To obtain those, there may be valuable information in counseling records where, for example, she told a psychiatrist or kelser, a version of events that might be different than she told the police if I can get a hold of that. That’s a powerful tool because your version of events is changing over time. It’s difficult to get those records. But there are ways and means of doing it. That application is conducted. And I go through this in another video which you should watch several months before the trial, if the judge agrees with me, I get the records, it may be a powerful tool to help the case. There’s also what’s called a software application, again, watch that video, a similar application involves where the prior normally the prior sexual history of a victim a complaint, it is never relevant to a sexual assault trial. There are instances where they can become relevant, for example, when the two parties have a prior sexual history themselves. But she’s claiming that he raped her on day 200 of the relationship, that the prior sexual history in certain ways may be relevant. And we need to bring that application in advance of the trial to get a judge’s order that we can introduce that relationship as part of the trial, because let’s face it, if we can’t introduce that prior relationship, it wouldn’t make sense. For example, if our version events is that this woman came up to me at the party and said, Let’s go home and have sex now. That would be out of the blue, it wouldn’t even make sense. It would make sense if they’ve been having sex for a year leading that a casual relationship where they did that type of conduct, just giving you one example where it could be relevant. So what are the important issues here we need to look at, we’re now three months out of the trial, I need to start preparing very hard. I’m talking. You know, I have done literally 234 100 hours of work on some complex rape trials, it takes a lot of work. Part of that work is preparing the client to testify because in in most sexual assault trials, not all in most sexual assault trials, you’re going to want the client to testify. And the only way for the client to effectively testify is when you prepare them you sit in the office. You go through question that you’re going to go through with them, you practice. Sometimes you might even videotape them and show them what they’re doing wrong. Believe me, winning a sexual assault trial has nothing to do with who’s telling the truth. A complainant who’s false, who’s you know if they’re a good wire, and that and that the defense lawyer is not prepared. A lying person can come across very convincing the client, maybe telling the truth, but they can’t come across Well, unless you’re prepared. It’s all about body language, telling your story in a certain way, answering the questions properly. And that’s your job is aware to get them ready. You also need to cross examine them, you need to pretend you’re the crown on multiple sessions, show them the questions they’re going to be asked tell them and correct their behavior, whether it’s your body language, because not everyone’s a natural public speaker, not everyone comes across well, but with proper preparation, we can make someone come across better so that they’re believable. We’ve all run into people before who may be telling the truth, but it’s just that their body language is not good. They don’t come across Well, we need to correct that behavior before they hit the witness stand. Because a big component of winning one of these trials is simply coming across well as EQs on the witness stand. If the complainant sounds great on the witness stand and you’re not able to attack it, him or her. They sound great. It sounds quite believable. But if the accused says the same thing, well, what’s the judge or jury to do? They’re supposed to acquit. Because you can’t reject the evidence. CQ says he said she said we don’t know who to believe there’s a reasonable doubt. That’s why it’s important. That’s a big component of winning. Now, as a defense lawyer, I need to cross examine that complainant and the other evidence the police or other peripheral witnesses, witnesses before at the party after about her demeanor. But let’s focus on the complainant. I’m looking to challenge his or her credibility, that’s truthfulness or believability. And there are a liability, there’s a there’s a difference between both reliabilities accuracy. credibility is believability. So I’m challenging that I’m attacking their version of events, I’m confronting them I’m showing in consistencies. I’m showing improbabilities. What doesn’t accord with logic and common sense. I can I’m trying to create inconsistency between their videotape of what they said the police and what they’re saying now, and breaking them down in the witness stand show. They’re not telling the truth, or they’re not credible, unreliable witness. That is an art form, it takes a lot of hours to prepare, you just don’t show up in court and rely on your skilled and experienced that’s 50% of the equation. The other 50% if not more, is hard work to be able to prepare that when so that I’ll give you an example, in the context of hundreds of pages of documents and witness statements and a video statement that’s hours long. If that witness says a on the witness stand a happened. And you’ve got a document in a sheaf of row on your desk that says Be happen, you need to be able to pull that document out in two seconds immediately. And confront her with it and do this naturally. And fluidly. It takes a lot of work to do that and needs to be planned. So if you can properly do that, you can challenge your credibility, you can show again, confront your if there’s more of July, confronted with your clients version of events, you’re trying to mix up her version of events as well show that she’s not having a good memory. She can’t remember this, you can’t remember that. Her her actions later. Were not consistent, you know, with what she’s saying now, and you know, ultimately argue that there’s a reasonable doubt that maybe she’s not telling the truth, probably she’s not telling the truth. Maybe she’s not reliable, probably she’s not reliable. And these are all techniques. And the bottom line, which I’ll say to you is this is that the more prepared the lawyer is them, and the more skilled an experienced lawyer is the better chance you have winning. You need both. There’s, I mean, some experienced and skilled lawyers are not working hard on cases, frankly, you need commitment and passion to win these cases. And it’s my job. It’s alerce job and not everyone likes criminal defense lawyers Believe me, but when my client says they didn’t do it, it’s my job as a defense lawyer to present their version events in the best possible life. Light to cross examine the complainant ethically. I’m confronting her I don’t sit there I’m not yelling at her. I’m not aggressive. I’m doing it methodically, clever cleverly, trying to trap her into different areas. It’s not you’re not sitting there. It’s not like TV where I’m being aggressive with the witness. So the last thing you want to do during a rape trial. Canada in front of a jury or judges rate, start raising your voice at a rape victim, you do think subtly, you lead them down the garden path of attacking their credibility. But that’s your job. And ultimately, if you can show inconsistency with what they said to the police, if you can show improbabilities in their in their statement and things that don’t occur with logic sense, common sense, if you can confront them, for example, that they said something different than a counselor, then they’re saying our to the police, and you confront them with your clients version of events, and ultimately get them to change your story subtly or from cross examine. And chief. That’s your job. It’s an art form, it takes a lot of hours of preparation, not only the skill of years and years of work, but working on this particular case. The client takes the witness stand testifies. And then of course, as a lawyer, whether it’s a judge alone trial or jury trial, you’re giving your closing address where you’re summarizing everything, you’re summarizing the inconsistency in the improbabilities, how your client was credible, witness how the complainant is not. And ultimately you’re asking the judge or jury to apply the WD test. juries are an art form to you need a skilled advocate to be able to persuade that jury, and you’ll come across well to the jury, be polite to the witness, you know, you’re just doing your job, and particularly with juries, you have to be so polite. But you need to ask the questions that need to be asked of that witness to heard questions. That’s our role. Like it or not like it believe me, I run into a lot of people who have like criminal defense lawyers. It’s a job and it’s an important job in society. And I’ll tell you why. Believe it or not, there are people people, everyone charged a couple of sets is presumed innocent. And if you don’t have good defense layers on rape cases, murder cases, other cases, guess what? There’s miscarriages of justice. So we’ve had many of those in Canada, and it’s our rule and the crown will agree with me, the crown will agree there are rules to avoid miscarriages, justice to as well, you know, they don’t want that they want truly guilty people convicted. So that’s how, you know, acquitted, I should say, That’s how to win a sexual assault trial. It’s a very difficult, stressful experience for everyone, including the crown defense lawyer, it’s a lot of work. And the reality is we do not want an innocent person going to jail. And we hope that only guilty people get get convicted. And that’s why we have to fight these cases when the client says they didn’t do it. It’s our role to to fight and try and win. Thank you for watching our video, we are absolutely committed to bringing you the best possible criminal and DUI educational videos. If you found this video helpful, please like it and subscribe to our YouTube channel. If you’ve been charged with a criminal offence in Ontario and require our services, please click on the link in the description below.

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