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Criminal
Defending Yourself in Provincial Court, Fact Sheet 3: Preparing For Your Trial
When should I start to prepare for my trial?
If you plead not guilty, you should start to prepare for your defence at trial as soon as possible. You should prepare carefully. Sometimes the trial date may be months away, so make notes about the incident that led to the charge. This way you can refresh your memory before the trial. Put any documents you may need for your trial in a safe place.
What is the prosecutor going to try to prove?
For most offences, the prosecutor must prove that you are the same person who:
- was charged at the time of the offence;
- committed the offence; and
- intended to do it.
Remember it's not an excuse to claim you did not know you were breaking the law, although the court will consider honest mistakes of fact.
Can I find out about the case against me?
As explained earlier, you have a right to see the Crown file on the case against you. This information may help you prepare your defence. The witnesses the Crown prosecutor may use are called Crown witnesses. Look at the list of possible Crown witnesses. Think about the offence you are charged with. Write down what they each saw and did at the time of the offence. You may also find it helpful to write down any questions you want to ask each witness.
Do I need evidence?
It is up to the Crown prosecutor to prove the case against you beyond a reasonable doubt. You may bring information to raise reasonable doubt of your guilt. This information is evidence. It may be physical evidence like a bottle, hair or clothing. It may be a document, a photograph, a videotape or a tape recording. It may be what a witness saw, heard or experienced. The court has rules about what evidence you can use. The judge decides any question of evidence.
Can I use witnesses?
Yes, most evidence in court is presented by witnesses. A witness can be a person who saw or experienced what happened and gives evidence in court under oath. This is called testifying. When the witness is under 14 years old, the judge must believe that the child understands a promise to tell the truth. Only an expert witness can give opinions or beliefs. Generally, the judge is only interested in the facts. An important rule of evidence is you cannot tell the court information someone else told you (there are some exceptions). For example, if your neighbour saw something you want the judge to know about, ask your neighbour to be a witness.
Before the trial, make a list of your defence witnesses. What does each of your witnesses know? Decide which witnesses you will call in your defence. What can each of them tell the judge? Contact them and ask them to be a defence witness. It is up to you to make sure your witnesses know when to come to court. Decide the order you will call your witnesses.
Checklist: Preparing Your Witnesses
- Talk to your witnesses, one at a time, about what happened and what you will ask them in court. Before you ask a question in court you should know what the witness will answer. Otherwise you may get an answer that does not help you.
- Practice asking questions that help your witnesses relax. This will help them to tell accurately what they know.
- Explain that they must answer truthfully and you can't 'put words in their mouths'.
- Warn your witnesses not to lie in court. Lying in court is a serious offence.
- Tell your witnesses that the prosecutor may challenge their statements. Make sure they understand it's not personal.
- Prepare your witnesses to stay calm, take their time, answer truthfully & patiently.
- Give your witnesses the Being a Witness pamphlet, available from the Public Legal Education and Information Service of New Brunswick (http://www.legal-info-legale.nb.ca).
What if my witnesses don't want to come to court?
If you have any doubt a witness will show up, go to the courthouse at least two weeks before the trial. The staff there can prepare a summons for each witness. The summons orders them to come to court on the date and time of your trial. You must serve the summons on the witness. You can either pay someone (check the yellow pages under "process servers") or ask a friend to do it. You need a sworn written statement (an affidavit) to show the judge that you served the witness or made a reasonable effort to do so. This way if your witness does not show up, you can ask the judge to adjourn the trial to another day and to issue a warrant to bring the witness to court. Otherwise the judge may go ahead with your trial without your witness.
What if I have other evidence?
Along with your witnesses, you can bring other evidence (such as photographs and documents) to show the judge. The basic rule is you can use information as evidence if it is relevant to something you are trying to prove. For example, if you are trying to prove you owned the article you are accused of stealing, it is relevant to bring a receipt. The receipt is evidence to show the court you bought the article and were the rightful owner. Remember, it is up to the judge to look at the evidence and decide what it proves. The judge may allow you to give evidence without prior notice to the Crown prosecutor but this is not always the case. The judge may accept (or reject) the evidence, and if necessary, grant the Crown prosecutor time to look it over.
Can I testify?
You might want to be a witness yourself. However, you do not have to testify against yourself. Testifying means you go to the witness box and make statements in court under oath. There are both advantages and disadvantages to testifying yourself. You should talk to a lawyer to decide if you should testify. If the case against you isn't strong, you may not need to testify. It's the Crown prosecutor's job to try to prove you are guilty.
Advantages of testifying
- It's your only chance to give "your side of the story".
- You may be the only witness to the offence.
- You can show you could not have committed the offence.
- The judge can get an opinion on whether you're a truthful, honest person.
Disadvantages of testifying
- You must testify under oathneed to define under oath?, and the Crown prosecutor can cross-examine you.
- The prosecutor may ask you things you don't want to talk about, and you have to answer.
- The Crown prosecutor will point out any weak spots in your evidence.
- If you have a criminal record, the Crown prosecutor can ask you questions about it. (If you don't testify, the Crown prosecutor normally can't mention your record during the trial. However, there are exceptions to this rule.)
Before your court date comes up, it is a good idea to go to court and watch other cases. This may help you feel less nervous when you go to court. You'll see how the court works, where everybody sits, and what they say and do. Do this a while before you go to court yourself.
What else should I prepare before my trial?
Before the trial, you should think of what you will tell the judge to raise a reasonable doubt of your guilt. After the judge hears all the evidence, each side can make a final statement, called a submission. The Crown prosecutor explains why the judge should find you guilty. You can then explain why you are not guilty based on the evidence. Write down the main points you want to talk about in your submission. Remember to add any points that come up during the trial.
Note: The Canadian Charter of Rights and Freedoms provides special protection to people accused of an offence. For example, if the police collected evidence against you in a way that violates your Charter rights, such as an unreasonable search and seizure, the judge may refuse the evidence. You should discuss your rights with a lawyer.
Published by:
Public Legal Education and
Information Service of New Brunswick
P.O, Box 6000
Fredericton, NB
E3B 5H1
Tel: 506-453-5369
Fax: 506-462-5193
Email: pleisnb@web.ca
http://www.legal-info-legale.nb.ca
Revised: March 2007
ISBN: 978-1-55396-937-2
 Back to Criminal
Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date. The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.
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