Q&A on Amber Kirwan trial:

John Brannen
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Professor Rob Currie of the Schulich School of Law at Dalhousie University has been following the Amber Kirwan murder trial with interest. In his second appearance on First Cup, The News morning blog, reporter John Brannen asked him several questions about the trial, circumstantial evidence and the possibility of a hung jury. Below is a transcript of the conversation between Prof. Currie, Brannen and First Cup followers:


John Brannen: 

Good morning Prof. Currie! Thanks for joining me this morning as the trial appears to be in its last throes.

Professor Rob Currie: Good morning, John! My pleasure.

JB: So my first question is looking more at the closing of the trial. Is it unusual for the defence to not call any witnesses, or only one? Is that indicative of anything from the defence point of view? This was the case as we saw Thursday when only Scott Falconer, Chris's dad, was called by the defence.

PRC: It's not unusual at all. The burden is on the Crown to prove guilt beyond a reasonable doubt, and the defence doesn't have to lead any evidence at all – it can simply point to reasonable doubt that is raised by the Crown's evidence. So it's often the case that the defence won't call evidence, or very little. There are other, strategic reasons for it, as well. For example, if the accused doesn't call any evidence then the accused's lawyer gets to argue last, and it can be useful in a jury trial for the jurors to hear the defence perspective before they go into the jury room. Also, if the accused testifies in his own defence, the Crown will often be permitted to cross-examine him on his criminal record, if he has one. So this is a de-motivator for the accused testifying in some cases. Here, from what I saw, Scott Falconer was only called to try to clear up the damaging effect of the jury having heard the phone conversation from when the accused was in jail.

JB: I see, so a little bit of strategy, potential damage control and the example that to be guilty the onus is on the Crown to prove guilt, not the defence to prove non-guilt.

PRC: Exactly.

JB: So in this same vein with Chris's dad, he took the stand and testified for the defence after sitting in the courtroom during several days of testimony – is there any precedent about calling a witness who has been listening to testimony? While we don't know for certain, this could be what the Crown and defence were discussing with the judge before he took the stand.

PRC: So it's entirely possible that Mr. Taylor didn't plan to call Mr. Falconer until the phone call evidence came in. The defence has to get some leeway on that point. On the other hand, the witness exclusion order is there for a reason, so that the testimony of other witnesses won't be tainted. As a result, I would say that the judge brought this to the jury's attention for two reasons: 1) so that they wouldn't be confused as to why Falconer Sr. was testifying when he had been in the courtroom; and 2) so that they would take into account that he had heard the other witnesses when they were weighing the credibility of his testimony.

JB: Right, I would think it's rare that a trial proceeds without any kind of surprises. But like you mentioned, leeway must be taken and given for both sides. We've got a question from a blog reader that's very similar to one I was going to ask. Here it is:

Guest: Can you talk a little about circumstantial evidence and what kind of evidence is needed for a conviction?

PRC: Sure. There are essentially two kinds of evidence: direct and circumstantial. Direct evidence is basically evidence of the senses, e.g. "I saw the accused kill the victim." Circumstantial evidence is evidence that allows the jury to infer (draw conclusions) about what happened; e.g. the police found the victim's blood on the accused's clothes. In order to convict, again, the jury must be convinced beyond a reasonable doubt that the accused committed the crime. Circumstantial evidence can be very powerful evidence, and it can certainly form the basis of a conviction. For example, imagine a case where the accused is the last person who was seen with the victim, had made statements in the past threatening the victim, and when arrested had a knife with the victim's blood on it.

Even though there is no eyewitness testimony in that case, that is still pretty strong evidence that the accused was the murderer.

JB: So it's certainly not unprecedented that a conviction could be obtained without a figurative 'smoking gun.'

PRC: The only other wrinkle with circumstantial evidence is that, if the case is entirely circumstantial, the jury can only convict if they think that the accused's guilt is the only rational inference that can be drawn from the evidence. I believe this case is all circumstantial, so Judge Scaravelli will probably say something like this to the jury today.

PRC: And to your question, John, that's right – it's not unusual for people to be convicted on entirely circumstantial cases, as many crimes take place in secret.

JB: Fascinating stuff – here's another question from a guest, and you're more than welcome to address it or not, depending how far you want to go into this:

Guest: As an observer with no legal background, in your opinion did the Crown prove 1st degree?

PRC: I haven't been able to follow the testimony closely enough to call it one way or the other. I would just say that in order to prove first degree, the Crown basically have to prove 1) Falconer killed the victim; 2) he did it intentionally; and 3) he planned to do it, i.e. it was premeditated. It's step (3) that makes it first-degree.

JB: Thanks for clarifying that, Prof. Currie. Looking more at outcomes, what is the procedure if there's a hung jury?

PRC: A hung jury is pretty unusual. When a jury comes back and says "we can't decide" the judge usually sends them back with instructions to keep deliberating until they DO decide. I believe if that they're truly hung, a mistrial is declared and the trial has to be done over again with a new jury. And nobody likes that – a terrible waste of public resources, and a strain on all of the people concerned.

JB: Very interesting stuff. We're on the last part of this trial now. Prof. Currie I want to thank you very much for taking my questions and questions from First Cup followers. Your time is greatly appreciated!

PRC: My pleasure. I'll be watching with interest.

JB: I'm sure! Thanks again and perhaps I'll be able to have you on First Cup one final time next week, but we can talk details later. Take care and have a great day! 

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