Saturday, July 31, 2010

The Case for Pattern Jury Instructions in Canada

In the aftermath of the Supreme Court of Canada's decision yesterday, upholding the B.C. murder convictions of Robert Pikton, Peter McKnight, adjunct professor in the School of Criminology at Simon Fraser University, addresses the "inevitability" of judicial error in criminal jury charges and explores the case for pattern jury instructions in Canada:

Most American jurisdictions now use pattern instructions, and when they do, they make trial judges' jobs significantly more manageable. Judges often request prosecution and defence counsel to provide them with draft instructions based on the pattern instructions, and even if they don't, if the defence finds errors in the instructions the trial judge has composed, counsel is expected to object at that time, rather than remain silent and then use the errors as a ground of appeal.

...Pattern instructions have also benefited juries in the U.S., since they rarely take more than one hour to deliver (Williams spent four days charging the Pickton jury, and no juror, no matter how smart and attentive, could remember all of the charge). Finally, pattern instructions benefit the justice system as a whole, as only one to three per cent of appeals based on judicial errors are successful in the U.S., compared to Canada's 30-to 50-per-cent success rate.

....While pattern instructions solve some problems, they leave untouched what is perhaps the most serious problem of all: Studies have repeatedly demonstrated that juror understanding of judges' instructions, including pattern instructions, is poor.

See: Why judges' errors are inevitable from the Vancouver Sun. More on Peter McKnight is here.

- Garry J. Wise, Toronto

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