September 22, 2014

Alexander Sculthorpe
McGill University

Table of Contents

Introduction
The Law
Theoretical Framing
Section I: How Courts Take a View – With Great Caution
A – Court steps outside safe space
B – Ensuring jurors sense what they are supposed to sense
C – Ensuring jurors sense the same things
D – Ensuring jurors do not sense without supervision
E – Role of security: Ensuring maximum control, practically and symbolically
Section 2: What Are We ‘Viewing’? A Narrow Sense of A View
A – Debate as to if a view is itself evidence
B – Purpose is limited to seeing a specific view/views
Section 3: Potential for an Expanded Conception of Taking a View
A – A ‘View’ engaging senses beyond sight
B – Potential of a multi-sensory ‘view’
C – Multi-sensorial view requires less caution, less narrowness
D – Practical import of accepting the notion of a multi-sensorial view
E – Pushing the boundaries?
Conclusion

Introduction:

This paper examines the concept and practice of jurors taking “a view” – an inspection of a place (such as a crime scene) by the trier of fact, including jurors. Such inspections are permitted, at a judge’s discretion, in many Commonwealth jurisdictions. This paper will begin with a preliminary examination of the legal and theoretical bases for this practice. Part I explores the cautious nature by which courts proceed with a view: ensuring jurors see only what they are supposed to; that they all see the same thing; that they don’t see anything without proper supervision; and that this is enabled by a symbolically significant state security presence. Part II examines the ways in which courts have construed the purpose of the view quite narrowly, limiting its role exclusively to jurors’ sense of sight (as opposed to other senses), and in many jurisdictions refusing to accept the experience of a view as evidence. Finally, Part III of this paper argues that courts should, in some circumstances, relax these restrictions and embrace the notion of a multi-sensory view, where doing so might enrich jurors’ understanding of a crime in a manner that is in the interest of justice.
The Law:

Many common law jurisdictions, including Canada, allow judges and/or juries acting as triers of fact to physically visit certain locations relevant to a criminal trial. {1} In Canada, for criminal cases this practice is governed by section 625 (1) of the Criminal Code of Canada,
The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial. {2}

The judge has wide discretion in determining when a view is necessary. Case law throughout the broader Commonwealth indicates that there a variety of relevant considerations that judges should consider, including: if there has been a substantial change in the condition of the site since the relevant time; the adequacy of other evidence as a substitute for taking a view; the relative importance of the site to be viewed in relation to the proceedings; security concerns; the inconvenience that would result; and the possibility of unfairness to one of the parties. {3}

Theoretical Framing:

Piyel Haldar’s theoretical framework of the Western court system can help us more fully understand the place of the view in a trial. Haldar tells us that according to the traditional evidence model, the truth of an event (factum probandum) is determined by evidence, which is a priori presented to the court (factum probans). {4} There is thus a privileging of evidence that can be presented in the ‘here and now’ of the court. The court creates a new space (the court room) and time (the time of the trial) in which evidence will be produced and determinations made about what has occurred in the past. Only evidence that can be produced within this specially created spatio-temporal realm of judicial assessment will be considered. As Haldar notes, this results in “…barring evidence where its originative source happens to be absent from the purview of the court.” {5}
Haldar comments briefly on the notion of taking a view. He classifies the phenomenon as an “…out of court inspection of some location” in which the evidence is treated as if it had been brought into the spatial domain of the court. {6}Thus, taking a view represents a unique stretching of the traditional courtroom-centric view of the spatio-temporal realm in which justice is to take place. As we will see, courts often appear quite hesitant to venture outside this theoretically and practically safe space; when they do so, they are very cautious.

Section I: How Courts Take a View – With Great Caution

A – Court steps outside safe space

Case-law and doctrine indicate that when leading jurors to take a view, courts go to great lengths to ensure that jurors only use their senses in a way that they (the courts) deem acceptable. Courtrooms are created with specific purposes in mind: to strictly control who is exposed to what, and to create a sense of authority for the judiciary. As Classen and Howes note,
…the conventional courtroom…shapes the experience of those who see and enter it. The abundance of wood suggests dignity and tradition. The benches and boxes convey a sense of order and separation of roles. Courtroom design further functions to control sight, sounds, touch, and movement. {7}

When taking a view, courts lose the capacity to control the sensory environment as they do within the courthouse. Courts have responded by providing juries with very specific instructions as to what they are supposed to see and how they are supposed to see it, re-creating this control to the fullest extent possible. In one of the few scholarly articles on the phenomenon of taking a view, Geoffrey Lester writes that a proper view must be conducted with “military precision” and that “a view properly conducted is a highly contrived and tightly controlled operation.” {8} An example of this approach can be seen in the tragic case of the 2009 murder of Tori Stafford and the subsequent criminal trial of Michael Rafferty. Jurors in the Rafferty trial took a view of the crime-scene. At the scene, jurors were instructed not to speak with one another. They were handed guidebooks created by police, which indicated precisely where on the scene they were to go, and precisely what they were supposed to look at. In some cases, they were directed to look in certain directions to see specific views (for instance, to take note of silos in the distance). {9} Jurors were allowed only twenty-five minutes at the scene. {10}

B – Ensuring jurors sense what they are supposed to sense

One of the rationales for so tightly controlling a view is a desire to ensure that justice is served and that the impartiality of jurors is not threatened by exposure to information or stimuli that would potentially threaten their role in the trial. Judges and lawyers spend significant time determining what information and evidence is appropriate to put before jurors, and it is thus unsurprising that courts are cautious when exiting the controlled space of the courtroom to an environment over which it has less control. Indeed, the case law indicates that there is good reason to fear that taking a view could lead to incidents that threaten the independence of the jury. In one case in the late 1800s, when the jury came to take a view of the defendant’s house, the defendant spoke with the jury and provided them with refreshments. {11} In a more recent case in Australia, jurors visiting the scene of an alleged roadside abduction found a note that had been left at the scene that expressed anger with the accused. After being informed of the presence of the note, the presiding judge informed the jury, “It should not have been there, it is not evidence, and I tell you in the strongest possible terms to ignore it.” {12}

C – Ensuring jurors sense the same things

The case-law indicates that there has also been significant concern from the bench that jurors must not only sense the proper things, but that they must all sense the same thing. An important feature of jury trials is that evidence is brought before jurors, who each independently experience and evaluate that information. There is no medium between the evidence and the juror who is the trier of fact. There is no risk of information being lost in translation through another party. In taking a view, however, there is a risk that one juror will see something others do not and subsequently tell them what she saw, an inappropriate role for jurors. Responding to this concern of past views, in Seneviratne v. The King, Lord Roche emphasized that the jury must, as far as possible, “…be kept together and not be given the opportunity of discussing the matter in groups or making separate experiments in the matter of sounds, etc.” {13} Again, the physical movements of jurors are more challenging to control outside of the courtroom environment.

D – Ensuring jurors do not sense without supervision

The insistence that jurors sense only what they are supposed to, and that they all sense the same thing, can be seen as underpinning the strict rules in many jurisdictions that jurors are not permitted to view the crime scene on their own time, outside the auspices of the court. In 2010, three Ohio jurors used their lunch-break to visit the scene of the murder in the case they were acting as triers of fact for, resulting in a mistrial and steep fines for the jurors. {14} Such incidents are in fact quite common. Model jury instructions emphasize that private visits are not permitted on the basis that doing so would:
…change your role from that of impartial jurors to investigators, and lead you to take into account material that was not property placed before you as evidence, of which those representing the Crown and the accused would be unaware and unable to test. {15}

Viewing a scene without judicial supervision is thus strictly prohibited for jurors.

E – Role of security: Ensuring maximum control, practically and symbolically

One of the ways the courts respond to all of these concerns appears to be the provision of heavy security to accompany the jury. This is arguably not only to ensure the court is able to control the sensory environment to the greatest possible extent, but also to serve as a reminder of the serious nature of the endeavor of justice. In Tameshwar v. R [1957], Lord Denning had occasion to consider the history of taking views. He noted that historically it had been exceedingly rare for a jury in a criminal trial to take a view, but that:
…in a case in 1847, on a trial for rape, the defence wished the jury to have a view, in order to support the contention that it was so public a place that it was unlikely for the offence to have taken place there…It was regarded as a thing of such moment that the jury were accompanied by the under sheriff, the chief constable, twenty policemen and twelve javelin men. {16}

Arguably this extensive (and perhaps overqualified) circle of security would serve both to limit potentially inappropriate external stimuli, while also sending a clear message to the jurors: we may have left the courtroom, but this is still serious court business. Dark wood may have been swapped for javelins, but the message of authority remains.
This tendency of extensive and arguably excessive security for taking a view appears to often extend to the modern day. When jurors took a view as part of the Rafferty case mentioned above, dozens of police cars, police officers, and police dogs were present. {17} This tendency was also seen in the 1995 trial of OJ Simpson. While that trial was clearly exceptional in nature, the description of the layers of visible security accompanying jurors taking a view supports the perspective that security presence can at some point become more symbolic than practical:
On duty [for the taking of a view] were hundreds of officers from the Los Angeles Police Department and sheriff’s offices, plus a bomb-sniffing black Labrador…half of the entourage, including three cars flanking the unmarked car carrying Mr. Simpson, ferried policemen. Twenty policemen on motorcycles escorted it, while four police helicopters hovered overhead. {18}

Again while there is no doubt a practical security dimension to the process, the significant amounts of highly visible security forces seems to be intended to also send a symbolic message. One possibility is that the function of the security presence is not only signal to jurors that they are still ensconced in official state business, but also as a signal to the public that the court and its component parts remain authoritative and in control during all official business, even when outside the courthouse.

Section 2: What Are We ‘Viewing’? A Narrow Sense of A View

A – Debate as to if a view is itself evidence

Within Canada, case law is divided on the question of whether a view itself is evidence or only a device for better understanding the evidence presented in court. The facultative approach is that a view is held “…solely for the purpose of enabling the trier of fact to understand the questions that are being raised and to follow and apply the evidence given by the witnesses in the box, but what is seen on the view is not itself evidence.” {19} The opposing perspective, the real evidence approach, is that what is seen on a view “…is part of the evidence and can therefore be acted upon by the trier of fact to make findings of fact, to draw inferences, weight the other evidence, and to assess the credibility of witnesses.” {20} While the limited doctrine on the subject supports the real evidence approach, the facultative approach continues to this day in a handful of jurisdictions, including Ontario.
The defining case in Ontario was Chambers v. Murphy, where a trial judge took a view of an accident scene; on the basis of what he saw, he subsequently rejected the defendant’s evidence that his vision was obstructed. {21} The case was appealed to the Ontario Court of Appeal, who ordered a new trial on the basis that a view is taken in order to better understand the evidence, whereas the judge at trial had “…in reality supplied that evidence himself and erroneously acted upon it.” {22} The Court of Appeal based its decision largely on case-law from the UK, and this decision has stood despite the fact that the UK has subsequently replaced its facultative approach with a real evidence approach. Nevertheless, Ontario retains the facultative approach. Thus, for instance, jurors in the Rafferty trial were instructed that what they would see while they were taking a view could be used to help them understand the evidence given in court, but that “…what you see when we go to that location is not evidence. You’re only allowed to use evidence you hear and see in this courtroom in deciding whether Mr. Rafferty is guilty or not guilty.” {23}
The ongoing tension between the facultative and real evidence approaches indicates that many jurisdictions remain hesitant to formally extend the privileged spatio-temporal zone of justice to which Haldar refers. In this sense, courts appear to be trying to have their cake and eat it too by achieving the perceived benefits of a view (to be discussed below) without formally extending the “here and now” of the court to outside of the courtroom. Again, I believe this points to a deep-seated caution of leaving the spatio-temporal bubble of justice that is the courtroom.

B – Purpose is limited to seeing a specific view/views

The majority of case-law and doctrine indicates that the purpose of taking a view is to allow jurors to directly see specific sights, as opposed to having to see them through potentially imperfect replicas such as photos or videos. Many scholars, including Haldar, have noted the justice system in general has a heavy bias towards sight in comparison to the other senses, and this bias certainly permeates the logic and practice of taking a view, including (obviously) the very name of the practice. Case law indicates that in most cases, the sole purpose of the view is to ensure jurors are able to see visual data as accurately as possible. As Justice Dunsfield states in Power v. Winter:
…the Court cannot become a peripatetic surveying institution; but where the locus is within a few miles of its seat, easily accessible by motor car, it can take a view which may be of the utmost value….one glance is worth a mountain of possibly dubious evidence, and may do away with all need for inferential interpretations. {24}

The focus is on the visual; the justice emphasizes the importance of “one glance”. In a more recent case, in Ontario (a facultative jurisdiction no less), Justice Gordon emphasizes the importance of a view:
…there is a good question as to whether the jury will fully appreciate or understand the evidence of witnesses relying only on the video and photographs. The jury will have a general understanding but, in my opinion, the parties and the jury are entitled to the “best evidence” – an opportunity to view the actual scene which the exhibits attempt, but fail, to depict. {25}

Again, the focus is on the failure of photographs and video to accurately capture the visuals of the scene. A photo or video is a representation of a scene, whereas viewing that scene directly takes out the interpretive device. This is portrayed as the sole purpose of taking a view.
This focus on the visual nature, however, may lead us to ask: to what extent can, and should, a view truly be restricted to jurors only using their sense of sight to make observations or determinations? When one goes to “see” an apartment before renting it, how much of that experience is to ensure that the apartment looks like it does in the photo, and how much is it to ensure that it feels like it looks? Consider a recent Illinois case where the defence wanted the jury to take a view, as they claimed that blueprints and pictures of the accused’s home made it seem “bigger than it really is”. {26} The defence argued that it was unlikely that the accused could have killed five people in such a small space without suffering any injuries himself. Is it really just seeing the space that might have given jurors a more accurate sense of the space, or would other senses inevitably have come into assessing how small the space was?

Section 3: Potential for an Expanded Conception of Taking a View

A – A ‘View’ engaging senses beyond sight

There is some limited case-law which suggests that taking a view can, in some circumstances, extend from engaging the sense of sight to instead engaging one of the other senses. Like so many other novel ideas within the Common Law, this idea is brought to us by Lord Denning:
…if the judge [on a view] duly views a place or object which cannot be brought into court that place or object provides real evidence through the medium of the judge’s eyes, ears, touch, tongue or, as in one recent case before me, nose. {27}

Sadly, despite the best efforts of several legal librarians, I have been unable to locate the no-doubt highly entertaining case of Lord Denning pursuing justice by following his nose. That said, in this quote, Denning is making the case that if we are willing to rely on the information gathered by sight during a view as a form of real evidence, we should also be able to rely on information gathered by other senses during a view as well. If this is the case, it raises the issue of whether multiple senses can be engaged simultaneously during a view in order to form evidence.

B – Potential of a multi-sensory ‘view’

This paper argues that a broader interpretation of a view, one that accepts and appreciates the value of a multi-sensorial view, would in some cases do much to enrich jurors’ understanding of the circumstances of a case. To begin, there are some experiences that involve a combination of the senses and are very hard to describe solely by written descriptions or by images. Consider the previously cited case of Tameshwar v. R, in which the defendant wanted the jury to visit the scene of the alleged crime to show that the site was so public that it was unlikely that the accused would have conducted the assault there. In this case we must ask, what is it that makes a space public? Surely what you could see from both inside and outside the space would be important factors in assessing how public the space was. But arguably other senses would also creep into an assessment of how public the space was – could you hear other people? Could you smell neighbours cooking? A true determination of how public an area is inherently involves a multi-sensory assessment.
Further, just as Justice Dunsfeld found that “one glance” is worth “a mountain” of other visual evidence, I would argue that “one moment” at the scene – fully sensing it – would be worth a “mountain” of description of the sensory environment. It is one thing to be shown a picture as proof an axe was found at the crime scene. This is a simple fact, easily conveyable visually. It is quite another thing, however, for a picture to serve as critical evidence that the crime scene was an isolated location. As one reporter commented after travelling with jurors in the Rafferty trial in order to take a view in a remote rural area of Ontario, “…it’s lonelier than in pictures.” {28}
There are a number of different legal contexts where a juror’s conception of the sensory environment of the crime scene may in fact be legally relevant. For instance, imagine a self-defence claim in which X stabbed Y in a dark back alley, after Y had threateningly approached X. X claims self-defence. Under the Criminal Code, any act of supposed self-defence must be “reasonable” in the circumstances. One of the factors used to determine if the act committed was reasonable is “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force.” Thus one of the key questions for jurors will be if it X’s actions were reasonable in the circumstances, including an assessment of if X had “other means available” to respond to the potential use of force, such as to flee. Another way of putting this is to ask what we think a reasonable person would have felt in X’s situation. What one feels is of course the result of a number of factors, including sensory input. Key questions for the jury will include whether it was reasonable for X to believe that a threat of force was being made, and whether X had other viable ways to respond to the threat. These determinations may turn, in part, on how being in the alley felt, in a multi-sensorial way. How dark was it, how noisy, how secluded, how narrow? These factors can all be independently described to jurors sitting in a court room one by one (for example, it was dusk, noise was 90 decibels, it was an alley 20 feet from the road, it was 6.1 feet wide) – and yet arguably jurors would have a better sense of how that alley feels by spending 20 seconds standing in it as opposed to two hours studying the various metrics. This is both because some things are hard to describe (isolation), and also because it may be hard for jurors to assess how certain disparate stimuli information would feel when combined.
This type of multi-sensorial view might be particularly valuable in cases where jurors make assessments about sites and scenes with which they may be unfamiliar. Most people have been in an alley at some point, and thus when they see a picture of an alley they at least have a sense of what it is and what it feels like to be in one. Suppose, however, there was a crime where someone was left to die in a rural forest, and the isolated nature of the forest was an aspect of the case. Say that a juror on the case was someone born and raised in a city and had never spent time in the country. The only experience this city juror has with forests is in the context of groups of trees in public parks – areas with walking paths, and where city traffic is still audible. You could provide this juror with photos and video of the rural forest, with maps showing just how isolated the rural forest is, and yet arguably you could not effectively convey what being in the middle of a rural forest truly feels like without having the juror experience it.

C – Multi-sensorial view requires less caution, less narrowness

Per Section I of this paper, courts have historically been very cautious when leaving their courtrooms. Much of this caution is justifiable, and is compatible with the idea of a multi-sensorial view: the idea that jurors should not be exposed to unacceptably biased stimuli, and the notion that efforts should be made to ensure that jurors all experience the same stimuli. That said, the concept of a multi-sensorial view relies on experiencing the scene as a whole, and thus the view would need to be less contrived and controlled than current practice allows for. Further, given that the purpose of the view is to get an overall sense of the scene and not simply to see one particular piece of visual data, courts will need to try to ensure the site of the view remains as authentic as possible (perhaps requiring a reduction in the court’s travelling security apparatus). Per Section II, courts have historically focused exclusively on the visual when it comes to the view. In order to allow space for a multi-sensorial conception, courts would first need to adopt the Denning perspective that any sense could, in fact, prove to be a source of evidence during a view.

D – Practical import of accepting the notion of a multi-sensorial view

Were courts to recognize the possibility of a multi-sensorial view, this could have a number of practical effects. First, recall that it is entirely at a judge’s discretion when a view takes place. Under the current framework that conceives views solely as a way for jurors to use their sight to gather visual data, courts may be missing opportunities to allow jurors to take a multi-sensorial ‘view’ to sites that might enrich their understandings of the circumstances. In the case described previously of a self-defence claim by X after an attack in an alley, if the judge in that case is making a determination as to whether the jurors should take a view to the site solely on the basis of what visual information on site could be better ascertained, she is unlikely to allow a view. If, however, she considered the multi-sensorial potential of the experience, perhaps she would consider a view in the circumstances.
Second, even in the current circumstances where views are only granted on an explicitly visual basis, in practice it is unlikely that jurors have the capacity to turn off other relevant senses when assessing a scene. Again consider the case of Tameshwar v. R. The key determination to be made was how ‘public’ the space of the alleged rape was. A broader conception of the view that acknowledges jurors will be gathering evidence from multiple factors and not just what they see might lead the court to conduct a view slightly differently. It might be more important to conduct the view at a similar time of day to that of the alleged attack, for example, in an effort to re-create likely human traffic in the area. Alternatively, if major non-visual factors concerning the space have changed since the attack (i.e. an amusement park opened down the block, which can be smelt and heard from the space, but not seen), perhaps a judge might decide that a view is no longer appropriate as the scene has changed too much since the time of the attack.

E – Pushing the boundaries?

The concept of a multi-sensorial view also raises some interesting questions about how far this idea could be pushed, both theoretically and practically, in the name of justice. Imagine someone claiming self-defence for an act that took place in a mosh-pit. A mosh-pit can be described to an elderly juror who has never been in one – incredibly loud, constant physical contact with everyone around you, visually disorienting, challenging to maneuver within. Yet if one has never actually experienced a mosh pit, it might be hard to really understand the experience and therefore to accurately assess the veracity of the self-defence claim. Yet in order to expose jurors to this type of sensorial experience in a type of ‘view’, one obvious challenge would be that the environment you would want to view – a mosh-pit – is entirely social (made up of people) and not natural. There would therefore be objections as to how accurate a reflection any random mosh-pit is to the specific crime-scene mosh-pit. Of course, while these are interesting theoretical explorations of the possible outer limits of how and why a court could ask jurors to sense different things in the name of justice, one suspects that a court system which has thus far leaned towards running “highly planned” views with “military precision” will not readily consider exposing elderly jurors to court-sanctioned mosh pits.

Conclusion:

This paper has argued that while courts have traditionally tended to be extremely cautious about how a view is conducted and about what evidence is to be gathered, courts should relax some of these restrictions and embrace the notion of a multi-sensory view, where doing so would enrich jurors’ understanding of the circumstances of a crime. Despite the host of serious theoretical and practical challenges that taking a view poses to the traditional courtroom evidentiary model, it is striking that the practice remains in effect. This indicates that despite the inherent messiness and difficulties of a view, courts continue to believe there is real value-added in allowing triers of fact to sense a scene directly, so that nothing is lost in translation. This paper has argued that this value is real, and should not be limited to sight, but expanded to include other senses in order to allow triers of fact to capture the multi-sensory experience of what a scene feels like, where such information is legally relevant.

Alexander is a third year law student in the BCL/LLB program at McGill’s Faculty of Law. He holds an MA in International Affairs from the Norman Paterson School of International Affairs at Carleton University, and a BA (honours) in Political Studies from Queen’s University.

Notes

1 Readers may wish to get a better sense of a view by watching news footage of jurors conducting one during the criminal trial of Michael Rafferty, accused (and subsequently convicted) in the 2009 murder of Tori Stafford. News footage of jurors visiting the crime scene for a view can be found at the following link: http://www.torontosun.com/2012/04/02/rafferty-jury-to-visit-crime-scene

2 Criminal Code (R.S.C., 1985, c. C-46). Emphasis added.

3 Kevin McGuinness & Linda Abrams, The Practitioner’s Evidence Law Sourcebook List (Markham: Lexis Nexis, 2011), p. 1061.

4 Piyel Haldar, “Acoustic Justice”, in Law and the Senses (London: Pluto Press, 1996), p. 123.

5 Ibid. p. 124

6 Ibid

7 David Howes and Constance Classen, “The Feel of Justice” in Ways of Sensing, (London: Routledge, 2014), p. 99.

8 Geoffrey Lester, “Tendering a View and a Demonstration on a View in Evidence” in Advocates Quarterly, Nov. 1997 (Vol 19, no. 4), p. 385.

9 Randy Richmond, “Rafferty Jury Visits Crime Scene”, Toronto Sun, April 2 2012. Available at: http://www.torontosun.com/2012/04/02/rafferty-jury-to-visit-crime-scene

10 Ibid

11 Anderson v. Mowatt, (1880), 20 N.B.R. 225 (C.A), per Lester at p. 373.

12 Sarah Elks, “Daniel Morcombe jury told to discount note from alleged crime scene” The Australian, March 5 2014. Available at: http://www.theaustralian.com.au/news/nation/daniel-morcombe-jury-told-to-discount-note-from-alleged-crime-scene/story-e6frg6nf-1226846109382

13 Seneviratne v. The Queen, [1936] 3 All E.R. 36 (P.C.) at p.51: per Lester, p. 329.

14 Rachel Zahorsky, “Jurors Ordered to Pay for Mistrial After Crime Scene Visit”, ABA Journal, November 17 2010. Available at:
http://www.abajournal.com/news/article/jurors_ordered_to_pay_for_mistrial_after_crime_scene_visit/http://www.abajournal.com/news/article/jurors_ordered_to_pay_for_mistrial_after_crime_scene_visit/

15 Virginia Bell, How to Preserve the Integrity of Jury Trials in a Mass Media Age. Supreme and Federal Courts Judges’ Conference, January 2005. Available at: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_bell_270105

16 Tameshwar v. R., [1957] A.C. 476 at 484 (P.C.), per McGuinness & Abrams at p. 1062. Emphasis added.

17 Richmond, “Rafferty Jury Visits Crime Scene”.

18 David Margolick, “Simpson Jury is Taken on a Tour of the Crime Scene,” The New York Times. February 13, 1995. Available at: http://www.nytimes.com/1995/02/13/us/simpson-jury-is-taken-on-a-tour-of-the-crime-scene.html

19 Lester, p. 347.

20 Ibid.

21 Ibid, p. 348.

22 Chambers v. Murphy [1953] 2 D.L.R. 705 (Ont. C.A.) per Ron Delisle, Don Stuart & David Tanovich, Evidence Principles and Problems (Toronto: Thomas Reuters, 2010) at p. 425.

23 “Tori Stafford jury, accused killer visit scene where eight-year-old’s body was found”, National Post, April 2, 2012. Available at: http://news.nationalpost.com/2012/04/02/tori-stafford-jury-visits-site-where-body-was-found/

24 Power v. Winter [1952], 30 M.P.R. 131 at para 147 (Nfld. C.A.), per McGuinness & Abrams at p. 1062.

25 R v. Macdonald, [2006] O.J. No. 4285 at para 34 (Ont. S.C.J.), per McGuinness & Abrams at p. 1065.

26 “Jurors Won’t Go To Crime Scene,” IllinoisHomePage.net, April 5 2013. Available at: http://www.illinoishomepage.net/story/d/story/jurors-wont-go-to-crime-scene/20824/zNdVXkodh02BAj-CvL30Ng

27 Goold v. Evans & Co., [1951] 2 T.L.R. 1189 at 1191 (C.A.), per McGuinness & Abrams at p. 1064.

28 Raveena Aulakh, “Jury Visits Site Where Body Was Found,” Toronto Star, April 3 2012. Available at: http://www.thestar.com/news/crime/2012/04/03/tori_stafford_murder_trial_jury_visits_site_where_body_was_found.html