Standard of proof required to prevent dismissal of criminal charge before trial In New Zealand, a judge may dismiss a criminal charge before trial if "the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant" (CPA s147(4)(c)). That is, if a Crown prosecutor (e.g. the Police) files a charge and fails to present convincing evidence, the judge may dismiss the charge and the case will not proceed to trial. The same applies to private prosecutions with the extra obstacle that charges may not be even accepted for filing because of the evidence being "insufficient to justify a trial" as per CPA s26(3)(a). In this case the same test as with Crown prosecutions applies (Mitchell v Porirua District Court [2017] NZHC 1331 at [31]): The two grounds for exercising the discretion under s 26(3) are analogous to dismissing a charge under s 147 of the Act and guidance can be taken from case law decided under that section. To what standard does the evidence need to be convincing so that the judge is satisfied that a jury could "reasonably convict" the defendant? Can circumstantial/cumulative evidence be sufficient? One might immediately think of the almighty "beyond reasonable doubt" standard for criminal cases, but would this be necessary for justifying trials? If so, how could it be up to the judge alone to decide whether the standard is met if this is what trials exist for? Real use-case scenario: It is alleged that the defendant intentionally set his dog on a couple of pet animals, and/or recklessly let the dog attack them. One was killed, other seriously injured. The charges are under the Animal Welfare Act (s28 and s28A) and Dog Control Act (s57(2)). Evidence: A formal statement from a neighbour who: a) From outside his house, saw the defendant and his vehicle near the pets (alive / non-injured); b) Went into his house from where he soon heard an unusual noise; c) Went out again and saw the defendant with a dog on the ground; d) Saw the defendant put the dog in the vehicle and drive off; e) Saw the killed and injured pets at the scene with injures looking like made by a dog. Photos taken by myself soon after the incident, showing the dead pet with internal organs poking out of its ripped back, blood, some of the internal organs and external tissue on the ground. Does this evidence meet the standard asked about above? (Note: this is not the main question; the main one is about the standard — in the bold above). The charges were not accepted for filing with this "justification": ... the witnesses did not actually witness any attack .. They heard an unusual noise ... There is no other evidence that the dog caused the injures... While it may be suspicious that the dog caused the death or injures, there is no evidence it did so, nor any evidence to discount another cause of the injury or death ... Neither of the ... [witnesses] ... saw the defendant doing anything other than being near the scene.
To what standard does the evidence need to be convincing so that the judge is satisfied that a jury could “reasonably convict” the defendant? The High Court expanded on the answer to this question in Mitchell, the decision you cited, at [32]: [In R v Kim [2010] NZCA 106] the Court of Appeal discussed the meaning of “insufficient to justify a trial” in the context of sufficiency of evidence: It is for the jury to determine whether the evidence is, or is not, sufficient to establish guilt. It is not for the Judge to predict what the jury will find. The test is whether the evidence, if accepted by the jury, is sufficient in law to prove the essential elements of the charge to the required standard. If so, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds. Can circumstantial/cumulative evidence be sufficient? In 2015, Dr Chris Gallavin, Dean of Law at Canterbury University, wrote: Circumstantial evidence is the bedrock of inferential reasoning. As advocates, we are well aware that a case is not “weak” by virtue of it being based upon circumstantial evidence alone (a common misconception). Circumstantial evidence will often form the base of a strong case, again, in both the criminal and civil jurisdiction alike. Does this evidence meet the standard asked about above? Unfortunately this question is not allowed, because the rules state: Please don't ask questions seeking legal advice on a specific matter. These are off-topic for Law Stack Exchange. While users generally contribute answers in good faith, the answers are not legal advice, and contributors here are not your lawyer. The test of “insufficient to justify a trial” is somewhat Delphic because it calls for an evaluative judgment. That judgment can only be formed by a court with relevant jurisdiction.
An alibi is a particular kind of defense strategy bearing on the burden of proof: here is the alibi jury instruction for California. The defendant contends (he/she) did not commit (this/these) crime[s] and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. &quot;I had put the gun down&quot; is not an alibi defense, &quot;I was not in my right mind at the time&quot; is not an alibi defense. The alibi defense is essentially a formality that clarifies the logic of &quot;reasonable doubt&quot; for the jury. If the defendant could not have committed the crime because they weren't there, then that is the end of the discussion. The prosecution will introduce various facts that suggest that the defendant may have committed the crime. The &quot;reasonable doubt&quot; instruction is widely interpreted by jurors to involve a defense obligation to disprove that evidence, which is a reason why a number of jurisdictions have adopted a different instruction based on &quot;being firmly convinced&quot;. Reasons to doubt prosecution evidence can be weak and highly speculative, and the courts have struggled for years to find a good way to convey exactly what &quot;reasonable doubt&quot; is. An alibi goes way beyond merely detracting from the prosecution's case. An alibi is not an affirmative defense where you have to prove the claim by a preponderance of evidence. If you can establish that you were somewhere else when the crime happened, had no opportunity to have committed the crime and could not have committed the crime by another means, you have defended yourself against the charge (assuming that the prosecution does not successfully challenge the credibility of the alibi witness). And in California, you have to give notice that you intend to use the alibi defense.
In California (as in all states) there is a justifiable homicide defense which might be used in such a situation. For the force to be justified, you have to reasonably believe you are in danger of being harmed, that you need to use force to avoid the harm, and you may only use the minimum force necessary to eliminate the threat. It then is a matter for the jury to decide whether those principles were followed in your particular instance. The reason why it's hard to predict the outcome is that it depends on a subjective evaluation by the jury, as to whether the shooter had a reasonable fear and whether lesser force was a viable option. The jury's decision is guided by instructions to the jury (#506, #506) which focus on relevant distinctions. The jury will be told that "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be", and that you have to reasonably believe there is "imminent danger of great bodily injury". My evaluation is that that does not describe the scenario in the question. There is some possibility of future harm... but not imminent harm. People v. Ceballos (1974) 12 Cal.3d 470" states that "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime" and "Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery", and that could support application of a justifiable homicide defense in a bank robbery. But in the present instance, the bank is being robbed and the shooter is a by-stander. Despite all of the bank robberies in California, there is no relevant case from which one could draw an analogy.
The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in &quot;Is this your statement?&quot; &quot;Yes&quot;. &quot;Is this your video recording?&quot; &quot;Yes&quot;. After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means &quot;I don't know&quot; then say &quot;I don't know&quot;. All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is &quot;&quot;Do you feel that a crime has been committed?&quot; - nobody knows if a crime has been committed; that's why we're having a trial.
Offering up evidence that another person committed a crime is a standard and accepted, although rare, criminal defense strategy. It is mostly not used very much because most crimes for which defendants are charged were not committed by somebody else, and because most innocent defendants lack the investigative and economic resources to identify enough information about another potential suspect to present such a case credibly. The defense would have to articulate to the judge that the reason for offering up evidence about Z is to support Y's theory of the case that Z and not Y committed the crime, in order to overcome a relevance objection. But, the defendant had wide latitude to do so in order to create a reasonable doubt that the defendant committed the crime. In most circumstances, it would be a reversible abuse of discretion to prevent the defendant from introducing evidence to support a theory of this kind. A similar strategy, for example, was recently used in a preliminary hearing in a case involving a high profile murder in Colorado where a man stands accused to murdering his wife (the man is Barry Morphew) has developed a theory that his wife was murdered by someone else based in part, for example, on the evidence of unidentified DNA near the murder scene allegedly associated with previous crimes in DNA databases.
A case can be &quot;dismissed&quot; at (most) any time (however, the further along in the process a case is, the less likely a judge will allow a case to be dismissed without very good reason). A case can be dismissed with or without &quot;prejudice&quot;, which in this legal context means essentially &quot;finality&quot;. A case dismissed with prejudice cannot be brought again, while a case dismissed without prejudice can be refiled. (Compare the criminal law concept of &quot;double jeopardy&quot;, though as phoog correctly notes, &quot;double jeopardy&quot; only applies in criminal trials, while prejudice can be applied in both civil and criminal courts). Many cases are dismissed without looking at the evidence (or even having the evidence admitted to the record); this is called &quot;summary judgement&quot; or &quot;judgement as a matter of law&quot;. There are generally three cases when this happens: First, if the prosecution or plaintiff (i.e. the party bringing accusations) has &quot;failed to state a claim upon which relief may be granted&quot;, i.e. asked for something the court cannot grant. Second, is if the defendant can show, that even if everything alledged by the plaintiff is true, that the necessarily elements of the crime or offense have not been proven. Third, is if there are no facts in dispute, and only a disagreement on interpreting the law.
The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client.
The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence.