Counsel should refrain from referring to case law in their final submissions before a jury.

It is the role of the trial judge, not counsel, to distill the necessary legal principles from the jurisprudence for the jury.

The jury must remain focused on the evidentiary record and not be distracted by the factual circumstances in unrelated cases. The details of other cases may have the potential to inflame and prejudice the jury against the accused.

In R. v. Drover, [2000] N.J. No. 36, the Court of Appeal overturned the appellant’s conviction for sexual assault due to the Crown’s improper closing remarks to the jury. The Crown’s final submissions included extensive references to the factual circumstances and verdicts in the high-profile prosecution of another individual convicted of similar offences. Roberts, J.A., speaking for a unanimous Court at para. 16, affirmed the following comments of Townsend C.J.N.S. in R. v. Cook (1914), 23 C.C.C. 50 (NSCA), concerning the use of previous cases:

 ... It would be highly inconvenient and calculated to mislead the jury if counsel on each side had the right to read from books the law as laid down in other cases, where the facts and issues were not the same. It would not be possible for untrained laymen to understand all those nice distinctions which are present in most cases. On the Judge, and on him alone, lies the responsibility for directing the jury in point of law, and, if he goes wrong, he can always be corrected. If the jury must take the law from him, what good can come from counsel reading and interpreting the law in any other way? It can have but one result, if it is of any weight - that would be to confuse the minds of the jury, and, therefore, should not be permitted.

Useful references:

R. v. Charest, (1990) 57 C.C.C. (3d) 312 (Que. C.A.) at p. 330:

…Applicable principles of law should be left for the judge to explain; when reference to the law is necessary for the purpose of making an argument, the law should be accurately stated.

< Back