TABLE OF CO~EN1S I. FROM TAROT CARDS TO TEST TUBES: DE-MYSTIFYING THE JURY. 1. History of Social Science and the Jury 3

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1 2 TABLE OF CO~EN1S I. FROM TAROT CARDS TO TEST TUBES: DE-MYSTIFYING THE JURY 1. History of Social Science and the Jury 3 2. What Does Social Science Have to Offer 4 3. Methods 6 4. Good Old Fashioned Intuition Challenging Individual Jurors for Cause Conclusion 15 II. OPENING ADDRESSES 1. Legal Parameters of Opening Addresses to a Jury Limits on Defence Counsel Limits on the Crown 18 I I I. IV. FOOTNo'rES BIBLIOGRAPHY

2 3 FROM TAROT CARDS TO TEST TUBES: DE-MYSTIFYING T~~_~Q~Y The selection and evaluation of jurors has been traditionally approached through a mysterious blend of voodoo, guess work. alchemy and More recently, the help of social science has been enlisted to assist trial lawyers in de-mystifying the jury selection process. Many of us have had very little experience in employing "experts" to assist us either in selecting a jury or evaluating the jury that we are faced with on a particular trial. What we have attempted to do in this paper is to provide you with some information about the contribution social science can make to the jury process and let you determine for yourself what you may want to make of it. At the same time we will, and you should, examine the legitimacy of the traditional intuitive approach of selecting and dealing with a jury. We will outline the mechanics of selecting and challenging a jury. Finally, after the jury has been selected we will provide some commentary on the legal parameters of opening addresses to a jury. 1. HISTORY OF SOCIAL SCIENCE AND THE JURY Early sociologists, and early lawyers, could only test their theories through anecdotal evidence or through contrived experiments in artificial settings. It was logistically impossible for them to gather and analyze the huge bodies of empirical evidence necessary to reach a truly "scientific" conclusion. The development of communications and the advent of the computer in the 1960s took sociology out of the ivory tower and transformed it into a real world science. "Armchair arguments" which had been endlessly debated could now be resolved by reference to empirical data. A prime example is the effect of capital punishment. Its proponents had argued that it would deter violent crime. Its opponents

3 4 argued that it legitimized violence and would lead to increased crime. Reference to empirical data shows that the death penalty has no deterrent effect and if anything actually increases crime. American trial lawyers were quick to see the usefulness of this new technology and were quickly consulting with social scientists to help them select and evaluate jurors. What began as a fledgling industry twenty five years ago is now big business. There are presently over three hundred firms in the United states which do scientific jury selection and evaluation. It is a two hundred million dollar per year industry. 1 Until recently, this has remained a largely American phenomenon. However, Canadian trial lawyers are beginning to appreciate the usefulness of social science in jury trials. 2. WHAT DOES SOCIAL SCIENCE HAVE TO OFFER? Social science provides two things to the trial lawyer. First, it provides information on human behaviour. A trial lawyer who selects and evaluates jurors on the basis of scientifically proven facts should have greater success than one who relies on truisms and folklore. The second thing which social science has to offer is a variety of methods for selecting and evaluating a jury. 2 In order to effectively draw upon the pool of available scientific information, one should hire a trial consultant. The consultant will identify the factors unique to the particular case and will compile all of the relevant findings on human behaviour for the trial lawyer to employ. 3 However, there are certain basic premises which, if accepted, can be of use to any lawyer. I will provide examples of

4 5 these and other less well known findings to demonstrate what can be gained by relying on such information. It is stated that one of the most well-established principles of jury behaviour is that jurors who are most similar to your client are more likely to find in favour of your client. 4 One should examine the potential jurors' sex, age, race, appearance and occupation. This must be qualified when dealing with an attractive female client. It is argued that attractive male defendants always are better perceived by a jury, however, attractive female defendants are perceived better by male jurors but worse by female jurors. 5 Another basic premise is that people who think negatively about themselves and about things in general are more likely to convict than ones who think positively. Often, whether one has a negative attitude can be gleaned merely by observing the potential juror's demeanor. 6 The fact that a potential juror is in favour of the death penalty is also an indication that he or she is likely to convict. 7 Reaction to the respective lawyers is also significant. If a juror makes eye contact with one lawyer but not the other it is a strong indication that they will rely more heavily on the lawyer with whom they made eye contact. 8 Also, hand motions to the head such as combing one's hair or rubbillg one's chin indicate a conflict between that person's inner feelings and statements. 9 Also of interest is that members of cliques which form among the juries tend to vote together. Throughout the trial, the counsel should be on guard for cliques which do not contain any favourable jurors. Counsel must also be on the watch for loners who may not vote with the group. Particular attention must be paid to these individuals. 10

5 6 In a disproportionate number of cases upper and middle class persons are chosen as jury forepersons over lower class persons. 11 Unfavourable upper class jurors pose a greater threat than unfavourable lower class jurors as the former are more likely to be in the influential position of foreperson. Accordingly, care should be taken to exclude such persons. It is also significant that natives are under-represented in Canadian juries. 12 When representing a native person, care should be taken to minimize the effect of this exclusion as best possible. Finally, another useful fact for consideration in one's approach to the jury is the fact that young jurors tend to see issues in terms of right and wrong. 13 This is not an exhaustive list of the information which social science has to offer. Indeed, this barely scratches the surface. However, it does give an insight into the potential use of such information. 3. METHODS The truly "scientific" component of social science is not the information which it provides but rather the methods which it uses to obtain such information. Several methods involve enormous undertakings which are too costly for the average accused. However, many methods are relatively inexpensive and are accessible as well. The most involved procedure is an assessment of community attitudes through research and juror profiles. A survey is conducted in the community from which the jurors are chosen to determine what attitudes, biases, sentiments and feelings the trial lawyer must anticipate. These surveys produce data

6 7 which can be used to create community-based profiles of the ideal and least desirable jurors. The findings are designed to help the trial lawyer both in the selection of jurors and in preparing an approach to the trial which will most likely appeal to that particular community. In extreme cases, the findings can support a change of venue application. A survey in the trial of a Texas multi-millionaire provides a good example of the type of questions which these assessments address: 1. What were the communities' attitudes in general about the facts of the case and related issues? 2. What were the attitudes which were likely to predispose a prospective juror to be less than neutral to the accused citizen who was a very wealthy business man? 3. Would the background or demographic characteristics classify those members of the community who were predisposed negatively to the issues or the client? 4. Would the community be likely to accept or reject the theory of defence such as prosecution solely because of the wealth of the accused? 5. How best could the lead counsel communicate with the local jurors? 6. Was it even possible to select twelve persons who had not prejudged the accused citizen

7 8 because of extensive media coverage of the event and the daily fanning of the flames of prejudice? 7. What areas of inquiry are the most critical for the voir dire examination? For example, church affiliation was determined to not be as significant as the frequency of church attendance. 14 Another involved technique is trial simulation. This is accomplished through the use of a mock jury or a shadow jury. A mock jury is comprised of individuals who come from the same set of people from which the actual jurors will be chosen. The trial lawyer runs a mini trial with the actual key witnesses. The opposing side's argument and evidence is anticipated and opposing witnesses and counsel are role played by actors. This technique gives the lawyer the benefit of a "dress rehearsal". Further, there is the opportunity to actually discuss a case with the mock jurors. The trial lawyer can obtain jurors' reactions to witnesses, strategy and the lawyer himself. This information can help to identify ideal and least desirable jurors. It also gives valuable insights into the "game plan". 15 As distinct from the mock jury is the "shadow" jury. A shadow jury actually sits in the Court room and observes the trial. At the end of every day, the trial lawyer and the trial cons~ltant meet with the shadow jurors to discuss their impressions of the case. The trial lawyer can determine whether the evidence is being understood, the perceived strengths and weaknesses of the case, the jurors' perception of the lawyer and the accused, and what issues the jury feels are of particular importance. 16 This process does not help the trial lawyer select jurors as the technique is not

8 9 ) employed until after the jurors are already selected, however, it provides valuable information which can be employed during the course of the trial. A much less expensive yet still effective technique is the "focus group". Basically, this is a more sophisticated version of a pre-trial coffee room discussion of one's case. The trial consultant puts together a group of three to ten persons who are presented with the important facts, issues and attitudes of the case. The consultant discusses the case with the group to obtain their reactions. 17 This technique can assist the lawyer in the jury selection process. However, it is primarily used as a method for gaining insight into the issues and problem areas which will be encountered by the actual jury. Another inexpensive technique is the use of private investigators to obtain background information on the actual jurors. A drive by photo of a potential juror's home can yield a wealth of information. Ideally, this information should only be evaluated on the basis of proven scientific facts. However, common sense does playa role. Someone with an alarm system and neighborhood watch stickers on their home is not likely to be favourable to the accused in an armed robbery trial. 18 Bumper stickers and vanity licence plates can tell you a lot about the owner of the car. Another source of information is the actual jury selection process. The proper questions can yield a wealth of information about the prospective juror. The process also provides the trial lawyer with an opportunity to build a rapport with the potential juror. The techniques which are employed will vary depending on the means of the litigant and the nature of the case. However,

9 10 there is an ample assortment of scientific methods available to trial lawyers who wish to employ them. 4. GOOD OLD-FASHIONED INTUITION Science does not spell the end of the art of intuitive jury selection. In the majority of cases, an accused will be unable to afford the services of a sophisticated jury analyst. In other cases, the jury analyst will simply be unable to provide the trial lawyer with adequate answers. In either event, the trial lawyer will have to rely on his sense of intuition. This does not necessarily mean that the lawyer is "shooting in the dark". To the contrary, good trial lawyers are sensitive and perceptive enough to determine whether a potential juror will be favourable to his or her case. Much of what the trial lawyer perceives is on a subconscious basis and leaves him with little more than a "gut feeling". As with anything, experience tends to increase the accuracy of these feelings and the lawyer's effectiveness in choosing jurors. 19 When all else fails, you must trust your instincts. 5. CHALLENGING INDIVIDUAL JURORS FOR CAUSE When dealing with a controversial topic or a well publicized crime, potential jurors may be biased to such an extent that they cannot adjudicate the matter fairly. In such a case, counsel should take advantage of their right to challenge potential jurors for cause. Section 626 deals with the qualification for jurors. The right to challenge the jury panel itself is found in section 629. The absence of persons from a native accused's

10 11 reservation on the jury panel, the absence of women or native band members from the jury panel and the absence of blacks from the jury panel are examples of unsuccessful grounds to challenge the panel: R. v. Diabo (1974), 27 C.C.C. (2d) 411 (Que. C.A.); R. v. Laforte (1975), 25 C.C.C. (2d) 75 (Man. C.A.); and R. v. Bradley and Martin No.1 (1973), 23 C.R.N.S. 33 (Ont.H.C.J.) and R. v. Bradley and Martin No.2 (1973), 23 C.R.N.S. 39 (ant. H.C.J.). On the other hand where it was shown that the sheriff who assembled the jury had a policy to exclude Indians from all jury panels a new trial was ordered: R. v. Butler (1984), 63 C.C.C. (3d) 243 (B.C.C.A.). Pursuant to section 630 the challenge to the panel itself is dealt with by the trial judge who if he determines the alleged ground of challenge is true will direct that a new panel be returned. Pursuant to section 632, the trial judge may excuse a juror from jury service for reason of: (a) personal interest in the matter to be tried; (b) a relationship with the judge, prosecutor, accused, counsel for the accused or prospective witness; or (c) personal hardship or any other reasonable cause that in the opinion of the judge warrants that the juror be excused. Section 634 sets out the number of peremptory challenges available to the Crown and defence and section 635 provides that the Crown and defence will with each juror alternately in first making their declaration as to a challenge.

11 12 Sections 638 and 639 deal with a challenge for cause. The purpose of such a challenge is two-fold. Obviously, if the challenge for cause is successful it removes an unfavourable juror from the panel. If the challenge is unsuccessful, the process may nevertheless provide counsel with information on the potential juror which may help counsel to decide whether to exercise the peremptory challenge. It should be noted however that the Courts are reluctant to allow the use of a challenge for cause as a "fishing expedition". This paper will set out the procedural mechanics of how to challenge a juror for cause. Either the Crown or the defence may malre of challenges on a variety of grounds, section 638: an unlimited number as set forth in 638(1) A prosecutor or an accused is entitled to any number of challenges on the ground that (a) the name of a juror does not appear on the panel, but no misnomer or mis-description is a ground of challenge where it appears to the Court that the description given on the panel sufficiently designates the person referred to; (b) a juror is not indifferen-t between the Queen and the accused; (c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months; (d) a juror is an alien; (e) a juror is physically unable to perform properly the duties of a juror; or (f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of

12 13 Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be. (2) No challenge for cause shall be allowed on the grounds not mentioned in (1). The first step in the jury selection process is for the judge to address the jurors to determine whether any of them are connected to the Crown or the accused and to excuse those who are. The Clerk will then draw names of prospective jurors and call them up to be sworn. counsel must exercise their right to a It is at this time that peremptory challenge or their right to challenge for cause. Normally, the challenge for cau$e need not be in writing. However, the trial judge has a discretion to order otherwise (section 639). Usually, it is only ordered if the grounds are embarrassing to the juror. Written challenges should be in the prescribed Form 41 and can be left in the general wording of section 638. The Ontario Court of Appeal in R. v. Hubbert (1975), 29 C.C.C. (2d) 729, appeal to S.C.C. dismissed 33 C.C.C. (2d) 207 and (1977) 2 S.C.R. 267, dealt extensively with the procedure to be employed by a trial judge in dealing with challenges for cause. In large part what is set out below is a review of that procedure. The judge considers the challenge and may require that further particulars be given or that actual evidence be tendered before deciding whether to allow the challenge to proceed. The other party may admit the challenge in which case the juror is excused or deny the challenge because the grounds are not valid in law or that the grounds are untrue.

13 14 If the challenge is denied because the grounds are not valid in law, both counsel may make submissions as to whether a ground, if true, would constitute cause. If the judge finds that it is not a valid ground in law, the challenge is dismissed and counsel must resort to a peremptory challenge (eg. A challenge that a female juror could not fairly try a male accused charged with the sexual assault of a female complainant would not be a valid challenge in law). Assuming that the ground is valid in law, the next step is to determine whether the ground is true. The trial judge does not make this factual determination. Rather, he appoints two persons to determine the issue. Although the judge may appoint anyone, the practice is to appoint the two most recently sworn jurors as the adjudicators. Counsel may examine the prospective juror. The latitude given to counsel is somewhere between that given in examination in chief and cross examination. Generally, questions must be concise and relevant. The trial judge will be quick to stop any fishing expeditions. The trial judge does have the discretion as to the questioning of prospective jurors on the voir dire: R. v. Pirozzi (1987), 34 C.C.C. (3d) 376 (Ont. C.A.). Other evidence may be called if so desired by counsel. Upon hearing the evidence, the two adjudicators make their decision on a balance of probabilities as to whether the ground is true. In high profile cases, an issue will often arise as to whether or not pre-trial publicity will affect the partiality of a juror: R. v. Sherratt (1991), 63 C.C.C. (3d) 193; (1991), 1 S.C.R Once again, to proceed with a challenge you must establish some prima facie evidence of the extensive pre-trial publicity to the extent that it would suggest that a member of the public having been aware of that pre-trial publicity might be affected by it: R. v. Zundel

14 15 (1987), 31 C.C.C. (3d) 97; 580.R. (2d) 129 (C.A.), leave to appeal to S.C.C. refused; 61 O.R. (2d) 588. Extreme pre-trial publicity will not result in a determination that an impartial jury cannot be found but rather the challenge process of each individual juror should still be followed. In R v. Vermette (1988), 41 C.C.C. (2d) 523; 1 S.C.R. 985, a decision by the trial judge to stay proceedings against an accused because of comments made by Premier Rene Levesque concerning the case was premature and it was ruled that the challenge process should have proceeded. If the challenge for cause is not successful, a peremptory challenge may be used. The right to challenge a juror for cause is seldom employed in Saskatchewan. Although the purpose of the challenge is not to obtain information on the juror's attitudes or to provide counsel with an opportunity to develop a candor with the jurors, this nonetheless is an inevitable benefit. Counsel does run the risk of alienating a juror by challenging him. However, so long as counsel has at least one peremptory challenge remaining, he can have the juror excused in any event. 6. CONCLUSION The selection and evaluation of the jury is often overlooked as an important part of a jury trial. Canadian trial lawyers are only now waking up to the potential which social science has to offer. This can serve as an exciting and useful supplement to a purely intuitive approach to juries. However, there is a danger in placing too much emphasis on the make-up of the jury itself. Ultimately, the organization and skill which goes into the presentation of case have a

15 16 greater effect on the outcome than the type of people which are sitting on the jury. OPENING ADDR~SS~S 1. LEGAL PARAMETERS OF OPENING ADDRESSES TO A JURY The opening address to the jury is one of the most celebrated aspects of a trial. Hundreds of movies, novels and t.v. shows have seized upon the inherent drama. The opening address is also one of the most important parts of a jury trial. There is evidence to show that 80% of jurors have made up their minds about the evidence by the end of the opening statement. 20 Accordingly, a successful trial lawyer must spend considerable time crafting his statement. In doing so, he has to do everything possible to advance his side's case to the jury. There are limits upon what a lawyer can say. This paper will canvass the Canadian cases which have dealt with these limits in order to provide defence and Crown counsel with a sense of what they and their opponents can and cannot say. 2. LIMITS ON DEFENCE COUNSEL Generally, defence counsel enjoy more freedom than prosecutors in their opening statements. This is evident in the relatively small number of cases dealing with improper statements by defence counsel. Many of the examples actually come from closing statements but I believe that their principles are equally applicable to opening addresses. An improper statement is an improper statement regardless of when it is made.

16 17 ) A minor violation which did not necessitate a new trial was a reference by defence counsel to the minimum punishment for the charge of first degree murder. The trial judge warned counsel not to refer to the penalty in an attempt to gain sympathy: R. v. Nielsen and Stolar (1984), 16 C.C.C. (3d) 39 (Man. C.A.). A more flagrant violation was a reference to evidence which defence counsel expected his client's co-accused would give. The co-accused subsequently refused to testify. The trial judge found that the address was highly improper and instructed the jury to disregard the remarks: R. v. Saunders and Gray; R. v. D. E. Bries and Rooke (1987), 35 C.C.C. (3d) 385 (B.C.C.A.). It is completely unacceptable for defence counsel to tell a jury to disregard the law. A group of physicians were charged with conspiracy to procure an unlawful miscarriage. A new trial was ordered when defence counsel told the jury that they had the right to disregard what the trial judge told them and that they could acquit the accused if they considered the abortion provisions of The Criminal Code bad law: R. v. Morgentaler, Smoling and Scot~ (1986), 22 C.C.C. (3d) 359 (Ont. C.A.). Similarly, an invitation to ignore war crime provisions is improper. An accused was charged with war crimes and crimes against humanity. Defence counsel expressed his personal opinion as to the accused's innocence and invited the jury to ignore the law and allegedly appealed to religious or ethnic prejudices. Although the comments were improper, they did not warrant a new trial: R. v. Finta (1992), 73 C.C.C. (3d) 71 (Ont. C.A.).

17 18 Of course, the evidence itself must not be misrepresented. A murder weapon was found in the accused's car which had been under police surveillance from shortly after the murder until the accused's arrest. Defence counsel stated that the car was not under surveillance and that several people went in and out of the car, raising a reasonable doubt as to who put the murder weapon there. Because the trial judge did not adequately address the error, a new trial was ordered: R. v. Neverson (1992), 72 C.C.C. (3d) 480 (S.C.C.). 3. LIMITS ON THE CROWN Crown counsel is more restricted in making an opening address. Nonetheless, it is surprising the latitude prosecutors are afforded in their remarks to a jury. It should be remembered that no matter how trivial or serious an improper statement may seem on its face, it must be taken in context to determine whether it jeopardizes the fairness of the trial. The accused was charged with raping a woman who applied for a job as a housekeeper. At the time of the offence the accused already had a housekeeper who was called as a witness at the preliminary inquiry but who was not called at trial because counsel felt her evidence was unreliable. Defence counsel suggested that if the offence took place the housekeeper would have heard the attack. The Crown indicated that there was no evidence that the housekeeper was present at the time of the attack. The remarks by Crown counsel were found to be not improper: R. v. Wilson (1983), 5 C.C.C. (3d) 61 (B.C.C.A.). In a charge of sexual assault, Crown counsel suggested that the defence tried to assassinate the complainant's character. The Crown also pointed out that the accused had a

18 19 considerable period of time to concoct a story to rebut the complainant's story and that the accused's wife did not testify even though she was present during many key events. The Court found that the Crown counsel's address was not inflammatory and did not warrant a new trial: R. v. N.eL.) (1989, 52 C.C.C. (3d) 1 (N.W.T.C.A.). In many cases, improper statements can be corrected by specific instructions from the trial judge and a new trial is not warranted. Such statements often involve an expression of the Crown's opinion on the evidence. This is improper. The complainant, on trial for a charge of rape, testified that the accused hit her in the stomach. A physician found no visible marks on her stomach. Crown counsel stated that it was common sense that blows to the stomach do not cause visible marks. The trial judge instructed the jury to disregard the opinions expressed by Crown counsel and to rely only on the testimony given: R. v. Wilson (1983), 5 C.C.C. (3d) 61 (B.C.C.A.). Crown counsel must not represent their submissions as "facts" and must not express opinions. Crown counsel stated that he believed the accused was "in cahoots" with the principle Crown witness and the alleged co-conspirator. The trial judge immediately addressed the jury upon the objection of defence counsel: R. v. Cheung (1978), 41 C.C.C. (2d) 244 (B.C.C.A. ). Generally, it is improper for the Crown to make pejorative statements of any kind about the defence evidence. A comment by the Crown that defence counsel would be "dealing with fiction" was found to be improper but instructions from the trial judge rendered the comment inconsequential:

19 20 Ambrose v. The Queen; Hutchison v. The Q~~en (1976), 30 C.C.C. (2d) 97 (S.C.C.). The Crown may not refer to different standards for Crown and defence witnesses. The Crown suggested that they only called witnesses who were truthful where as the defence could call whatever witnesses they liked. The trial judge instructed the jury that it was their exclusive role to make findings of fact and to assess credibility: R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.). The Crown may not make jury. statements designed to inflame the The accused was charged with unlawful confinement and use of a firearm. It was alleged that he had entered the home of the victim and her young children and forcibly confined them all at gun point for several hours. Crown counsel stated that if the accused was acquitted the victims would have no protection from him and that he would commit a similar offence again. The trial judge used clear and forceful directions to nullify the effect of the address: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.). In a trial on a charge of conspiracy to traffick in narcotics, a statement that the evidence would show the accused had manufactured drugs on previous occasions was found to be inflammatory. Nonetheless, the error could be corrected by specific instructions from the trial judge: R. v. Grabowski and Thomas (1983), 8 C.C.C. (3d) 78 (Que. C.A.). The Crown should not stress an accused's undesirable characteristics which are not directly relevant to the charge. Where an accused was charged with first degree murder of a child care worker at a group home the Crown )

20 21 ) adduced evidence of the accused's violation of home rules, use of drugs and self mutilation. The theme of the jury address was that the accused had a law unto himself which was "governed by sex, drugs and rock and roll". The address was found to be improper but did not warrant a new trial: R. v. Tobin (1992), 74 C.C.C. (3d) 508 (Ont. C.A.). In some cases, an improper comment by Crown counsel, if not corrected by the trial judge, or if it is of such a serious nature that the trial judge will not be able to correct the error, will result in a new trial. Crown counsel asked the jury to consider whether he as well as the police had devised a scheme to frame the accused. The remarks were improper as they made the honesty and integrity of the prosecutor's office an integral part of the case. The error was not adequately addressed by the trial judge and a new trial was ordered: R. v. Gordon (1983), 4 C.C.C. (3d) 492 (Ont. C.A.). If the Crown refers to something in the opening statement which cannot later be substantiated by evidence a new trial should be ordered. Crown counsel stated in his opening address that the evidence would show that the accused said she disliked the victim and wished to do away with him. Evidence on this point was later inadmissible. It was found that no warning by the trial judge could remove the prejudicial effect: R. v. Taylor (1979), 46 C.C.C. (2d) 105 (N.S.S.C.). Inflammatory addresses often cannot be rectified by the trial judge. In a glaring example of an inflammatory address, Crown counsel described the accused, who was charged with murder, as an assassin or a murderer. He ridiculed the defence and compared the accused to a terrorist and a Nazi.

21 22 The Crown also suggested that there was a sexual motive for the killing although there was no evidence for such a motive. Finally, Crown counsel invited the jury to consider whether they would be able to live with themselves following their verdict. Needless to say, a new trial was ordered: R. v. Charest (1990), 57 C.C.C. (3d) 312 (Que. C.A.). In a similar case, Crown counsel put facts before the jury on matters of which there was no evidence and which came the prosecutor's personal experience or observations. Court discussed when a new trial is mandatory in cases from The of inflammatory addresses: Pisani v. The Queen (1970), 1 C.C.C. (2d) 477 (S.C.C.). CONCLUSION An opening address to the jury is your first opportunity to advance your position in front of the jury. Choose your words well and do not lose the benefit of this opportunity by overstepping your bounds and having the trial judge chastise you in the presence of the jurors. Needless to say, much of this paper is filled with our personal view points. We place them before you for your consideration in determining what works best for you and your particular case. AARON A. FOX JAMES KORPAN

22 23 ) FOOTNOTES 1. Rachlinski, Jeffrey J., Scientific Jury Selection and the Equal Protection Rtghts of Venire Persons, Pacific Law Journal/Volume 24, (1993) 2. Kaplan, Martin J., What Can Psychology Uniquely Contribute to the Study of Juries?, 7 Windsor Yearbook of Access to Justice/Volume 7, (1987) 3. Roberts, Margaret C., Trial Psychology: Communication and Persuasion in the Courtroom, Butterworth Legal Publishers, (1987), at p Ibid; Rachlinski, Supra, at p Roberts, Supra, at p Ibid 7. Ibid at p Isaacs, Samuel G., Evaluating the Panel: Understanding Implied and Non-Verbal Communication, Trial/Volume 23 (6) (1987) at p Ibid 10. Ibid 11. Deosaran, Ramesh, The Social Psychology of Selecting Jury Forepersons, Brit. J. Criminol/Volume 33 (1) (1993) at p Petersen, Cynthia, Institutionalized Racsim: The Need for Reform of the Criminal Jury Selection Process, McGill Law Journal/Volume 38 (1993) Roberts, Supra, at p Ibid, at p Ibid, at p Ibid, at p Ibid, at p. 486

23 Ibid, at p Pavalon, Eugene I., Jury Selection Theories: Art? Science? Guessing Game?, Trial/Volume 23 (6) (1987) 26 at p Roberts, Supra, at p. 473

24 25 BIBLIOGRAPHY Ambrose v. The Queen; Hutchison v. The Q~en (1976), 40 C.C.C. (2d) 97 (S.C.C.) Pisani v. The Queen (1970), 1 C.C.C. (2d) 477 ( S.C.C.) R. v. Bradley and Martin No. 1 (1973), 23 C.R.N.S. 33 (Ont. H.C.J.) R. v. Bradley and Martin No. 2 (1973), 23 C.R.N.S. 39 (Ont. H.C.J. ) R. v. Butler (1984), 63 C.C.C. (3d) 243 (B.C.C.A. ) R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.) R. v. Charest (1990), 57 C.C.C. (3d) 312 (Que. C.A.) R. v. Cheung (1978), 41 C.C.C. (2d) 244 (B.C.C.A.) R. v. Diabo (1974), 27 C.C.C. (2d) 411 (Que. C. A. ) R. v. Finta (1992), 73 C.C.C. (3d) 71 (Ont. C.A. ) R. v. Gordon (1983), 4 C.C.C. (3d) 492 (Ont. C. A. ) R. v. Grabowski and Thomas (1983), 8 C.C.C. (3d) 78 (Que. C. A. ) R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C. A. ) R. v. Hubbert (1975), 29 C.C.C. (2d) 729, appeal to S.C.C. dismissed 33 C.C.C. (2d) 207 and (1977) 2 S.C.R. 267 R. v. Laforte (1975), 25 C.C.C. (2d) 75 (Man. C.A.) R. v. Morgentaler, Smoling and Sco~ (1986), 22 C.C.C. (3d) 359 (Ont. C. A. ) R. v. Neverson (1992), 72 C.C.C. (3d) 480 (S.C.C. ) R. v. Nielsen and Stolas (1984), 16 C.C.C. 39 (Man. C. A. ) R. v. N. ( L. ) (1989), 52 C.C.C. (3d) 1 (N.W.T.C.A.) R. v. Pirozzi (1987), 34 C.C.C. (3d) 376 (Ont. C. A. ) Canadian Criminal Procedure, Salhany (5th Ed.) pp

25 26 R. v. Saunders and Gray; R. v. D. E. ~~~e~nd Rooke (1987), 35 C.C.C. (3d) 385 (B.C.C.A.) R. v. Sherratt (1991 L 63 C.C.C. (3d) 193, 1 S.C.R. 509 R. v. Taylor (1979), 46 C.C.C. (2d) 105 (N.S.S.C.) R. v. Tobin (1992), 74 C.C.C. (3d) 508 (ant. C. A. ) R. v. Vermette (1988), 41 C.C.C. (2d) 523; 1 S.C.R. 985 R. v. Wilson (1983 L 5 C.C.C. (3d) 61 (B.C.C.A. ) R. v. Zundel (1987), 31 C.C.C. (3d) 97; 58 O.R. (2d) 129 (C.A.), leave to appeal to S.C.C. refused; 610.R. (2d) 588