The Trial

• Author: Judith Daylen, Wendy van Tongeren Harvey, and Dennis O'Toole
• Pages: 283-334

283

[  ]

e Trial

Vignette Eight

Morris, a fty-year-o ld successful businessman, receives a phone call from

his younger brother Charles, who says that he is nally going to report

the sexual abuse perpetrated by their older brother Clem. Clem was very

abusive and antisocial from a young age. He sexually abused his young er

brothers in a sadistic, frightening way through the ir childhood and ado-

lescent years, and he threatened worse if they ever tol d anyone. The abuse

stopped only when Clem went to jail for the rs t time as a young adult

on unrelated charges. Although apprehensive, Morris agre es to report

his own abuse and strengthen the case against Clem. In his statement

to police, Morris describes the abuse as “anal rape” and s ays Clem would

sometimes choke him to near unconsciousness during sex. D uring the

preliminary hearing, Morris is anxious b ut tells his story when questioned

by the Crown counsel. The next day, under the pressure of cross-exam -

ination, Morris becomes increasingly agitated, blanks out, and cannot ad -

equately answer many of defence counsel’s questions. His demeanour is

subdued and at; from an observe r’s perspective, he seems disinterested

and vague on details. Shortly af terwards, Morris asks for a meeting with

Crown counsel and presents her with a letter f rom a psychiatrist saying he

is suering symptoms of Post-Traumatic Stress Disorder, including a dan-

gerously high level of anxiety. Morris says that the pressure of testif ying is

making him too anxious and he cannot continue. The Crown says Mo rris’

testimony is crucial to the case and she will have to drop some of the most

serious charges if Morris does not testif y.

284 ,  ,   

    adversarial process subject to the strengths and

foibles of human nature. e outcome of a criminal case ultimately rests

with the trier of fact, is never certain, and can hinge on a variety of fac-

tors including witness availability, memory, credibility, stamina, and mo-

tivation. In a sexual assault trial, the complainant is oen the prosecution’s

most important witness and, as such, needs to be well-prepared to meet the

courtroom challenges. is chapter explains the step-by-step process of a

trial and prepares you for the demands of presenting your case to its best

advantage.

Trials are the way society decides if a person accused of a sexual crime

will be held accountable and subjected to legal consequences. Framed in

this context, it is not surprising that sexual assault tria ls are a gruelling ex-

perience for everyone. e complainant, being the originator of, and typi-

cally the only witness to the complaint, bears the burden of clearly telling

the story and consequently oen suers the greatest pressures. In a circum-

stance where the complainant may hope to nd some empathy, compas-

sion, or assistance, there may be anything but. For those who expect this

to be a “truth-nding” process, it can feel like they are participating in an

exercise of truth-limiting and victim-bashing.

e nature of our trial system means there is no certain way of knowi ng

how any particular case wi ll turn out. As outlined in the previous chapter,

one reason for this unpredictability is that the accused does not have to

reveal the details of the case in advance, even though the accused is aware

what the Crown’s case will be. e Crown prosecutor must reveal all de-

tails of the case against t he accused in advance. is includes disclosing the

identity of all witnesses, the order in which they will testi fy, and what they

are expected to say. With minor exceptions, the defence is not required to

do the same. e defence does not have to indicate beforehand what the

defence will be nor how the trial will be conducted. ere is no require-

ment to inform the Crown if the defence will call evidence or if the accused

will testify. Add to the se procedural un knowns the huma n variables of fa l-

lible memory, performance anxiety in the courtroom, witness testimony of

varying credibility, mistakes being made, or evidence being lost. With all

these important variables it is not hard to understand why the outcome of

a trial is never certain. As w ith any battle, stamina in the face of adversity

can also play a signicant role in the outcome.

Despite the adversity and unpredictability of a trial, you can count on

some constant factors. As outlined in Chapter , you can count on meeting

Chapter 8: The Trial 285

a typical coterie of courtroom personnel. To varying degrees, you will inter-

act with these people during your case, so it is helpful to know what their

roles are. Apart from the complainant, there will always be a Crown lawyer,

an accused person or persons, and a judge in all trials. Usual ly a lawyer

acts as defence counsel and represents the accused but not always; in some

cases the accused will act a s their own counsel. Sometimes a jury (if pres-

ent) will deter mine the verdict, but more oen it is a judge . Each of these

participants has a critical role in the criminal trial. Each of them, at one

time or another, is likely to expect something of you in the trial. e judge,

the Crown counsel, and the defence lawyer will appear to have control over

what you can and cannot do throughout the process. As the trial unfolds,

the only person you will have any genuine control over is yourself.

If you need to refresh your understanding of court personnel roles,

please refer to Appendix . Once you have read this c hapter and are more

conversant with the important issues of the trial process, there is a checklist

in Appendix  that you can use when preparing for your day in court.

THE COMPLAINANT AS A WITNESS

 ,   a sex crime complaint, is to explain to the

court as c learly, accurately, and honestly a s you can, what happened to you .

Based on what you say, the lawyers will make their arguments and the judge

will decide if a crime has been committed. In this respect, you are the pri-

mary, and oen the only witness to the crime. e details of how complain-

ants testify, or whether they testify at al l, will vary enormously from case to

case. Testimony must comply with the procedural and evidentiary rules of

the court, so it will be your task to understand and observe these rules to

the best of your ability. Learn what li mits are placed on your testimony; ask

questions when you a re not sure about procedu res, and adhe re to the restric-

tions placed on you when you tell your story. Articulate any needs that you

have, but remain aware that the Crown counsel is not your lawyer and can-

not always def end you or your actions. e Crown represents the state, but

allies with you to prosecute the accused. As you will see later in this chapter,

what you might expect the Crown to do for you out of common courtesy

might be something that could actual ly damage your case. In fact, the judge

will expect the Crown to guide you on the stand to ensure that you do not

give ina dmissible evidence or otherwise contravene le gal procedure.