There is a popular misconception that the accused is afforded every advantage in the criminal process. The Crown’s burden of proving the elements of each offence beyond a reasonable doubt gives the appearance of “defence advantage” at trial. However, if one takes a step back from the courtroom and looks at the general power dynamic between the Crown and defendant, it becomes clear that it is indeed the State with the upper hand in most prosecutions. This imbalance is most evident when the accused is unrepresented by defence counsel.
The “Crown” is an elaborate machine that is far-reaching, dynamic and well-funded. Police officers are truly professional witnesses. The average police constable receives years of training before conducting an investigation. An officer testifying in any given Canadian courtroom will have benefited from extensive coursework in evidence collection and presentation. He or she will have already received thorough instruction on giving testimony and will most often have the benefit of significant courtroom experience. Police are trained to take copious notes to assist them in providing a detailed and consistent version of events on the stand. Police also trained to investigate matters thoroughly and quickly. They collect evidence and compile lists of potential witnesses often within minutes. Identity officers take photographs of injuries, damaged property and crime scenes. Perhaps most importantly, police know the law. They know the rulebook and are often fully aware of the elements of each offence someone is charged with when testifying in court.
So what can the average person do to even the playing field in a criminal prosecution? The key to closing the gap between you and the Crown is to remember that the defendant is also capable of acting quickly and collecting evidence.
First, be proactive and start working to defend yourself from the moment you identify a risk of being charged. Like the police, you too can identify and list potential witnesses. Similar to the work of an identity officer, you too can take photos of evidence you believe can assist you in court. Just as a detective would, you can obtain phone records and take screenshots of text message conversations as a means of providing a truthful alternative to the Crown’s narrative at trial. Further, there is no rule of evidence that says only police officers can benefit from detailed notes to assist them. Memory fades over time so it is crucial that you record your side of the story as close to the event in question as possible. Most trials take place long after charges are laid and it might be a year or more before you tell your story on the stand. Just as the Crown can use an officer’s notes to refresh his memory on the stand, your defence lawyer can bring your own notes to you when testifying to help refresh your memory.
Lastly, retain a criminal defence lawyer; someone who has spent years reading the instructions on the box before playing the game. This way you won’t be at a disadvantage when up against an experienced Crown and seasoned investigator.