The Prosecutor’s Job Is*

Consider this from the just released R v White  2011 SCC 13 at para. 133 per Binnie J, dissenting (McLachlin CJ and Fish J concurring)

• [133] Yet experience has shown that prosecutors will occasionally put forward as evidence of guilt, post-offence conduct that is essentially equivocal — such as the accused’s strange behaviour when first spoken to by the police or the fact he failed to render assistance to the victim. Even where considered of some slight probative value in relation to an issue in the case, its persuasive value in the hands of a skilled prosecutor may create unfair prejudice to an accused. Thus, in some situations, it has been found necessary to withdraw such evidence from the jury’s consideration, or to give an instruction pointing out the danger and limiting the use that may be made of it.
  . . .
• [136] A majority of the British Columbia Court of Appeal, Finch C.J.B.C. dissenting, held that “while the charge to the jury was wrong in that it was not complete, the error was harmless and could not have affected the jury’s verdict” (2009 BCCA 513, 278 B.C.A.C. 177, at para. 146). I agree with the unanimous view of that court that “the charge to the jury was wrong” but unlike the majority I would not apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. I agree with Finch C.J.B.C. that the error was not harmless. The case for a murder conviction, apart from the evidence of post-offence demeanour, was far from overwhelming. I would allow the appeal.

Next, this from last century’s

R. v. Kusk, 1999 ABCA 49

• [7] The Crown’s main argument is that this flaw was not bad enough to call for a new trial, and that we should apply the well-known proviso in s. 686 of the Criminal Code. We have several reasons for firmly rejecting that suggestion here.
• [8] The first is that credibility was so critical in this case. …
• [9] The second reason not to apply the proviso is that many appellate courts have condemned such cross-examination, especially by prosecutors questioning the accused, since at least 1925. We are not aware of any modern authority allowing it. Yet it keeps happening, as the number of modern decided cases shows. In one province (not Alberta), there are so many appellate decisions condemning the practice, but not ordering a new trial, that one wonders whether the prosecutors there think that it is a matter of “Do as I say, not as I do.” Maybe that is why they keep asking the forbidden question. The practice should stop at once, and there is an obvious way to stop it.
• [10] The third reason is this. Here the Crown prosecutor, instead of checking some law, unrepentantly made this very error the peroration of her address to the jury. It was the last thing which the jury heard from the lawyers. The jury was invited to convict on this very ground. Nor did the trial judge really do much to cure the suggestion which the prosecutor had twice planted and the trial judge already once blessed. We are told that the trial was only about two days long, and the facts are simple, yet the jury deliberated about 10-12 hours before convicting. One cannot possibly say with any confidence that this error did not cause the conviction.
• [11] Fourth, the illegal cross-examination here is dangerous because it is so beguiling, and because it so seamlessly melds many things which should be kept poles apart: …
• [12] Fifth, the prosecutor’s summation sprung the trap which she had laid in cross-examination by the forbidden question
• [13] To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.

The Court of Appeal did not find it necessary to explain to whom para. 13 referred.

Don’t shoot me, I’m only the messenger.

* The question is rhetorical. I know what the prosecutor’s role is supposed to be.