2. Jury Trial Procedure Flashcards
1
Q
Presence of the accused at the trial - general rule
A
- The accused must be present at the commencement of a trial on indictment in order to plead. It is then the almost invariable practice for the accused to be present for the rest of the trial.
- The court must not proceed if the accused is absent, unless the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite the accused’s absence.
2
Q
Presence of the accused at trial - exceptions
A
- The situations in which the court may be justified in proceeding without the accused are as follows:
(a) as a result of the misbehaviour of the accused
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.
3
Q
Waiver of right to be present/represented at trial
A
- Wholly waived if with the necessary knowledge of location/time of trial they are deliberately and voluntarily absent and/or withdraw instructions from legal representatives
- Partly waived if being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives
4
Q
Exercise of judge discretion to continue trial in absence of the accused
A
- Judge has discretion as to whether trial should continue in absence of an accused/legal representatives
- Judge must warn D of the possibility of this at the PTPH
- The judge must have regard to all the circumstances of the case including, in particular:
the nature and circumstances of the accused’s behaviour in being absent from the trial or disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to appear;
whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings;
the likely length of such an adjournment;
whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation;
the extent to which the absent accused’s legal representatives are able to present the defence;
the extent of the disadvantage to the accused in not being able to give his or her account of events, having regard to the nature of the evidence;
the risk of the jury reaching an improper conclusion about the absence of the accused (but see (f) below);
the seriousness of the offence to the accused, victim and public;
the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
the effect of delay on the memories of witnesses;
where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
5
Q
What should not be considered when deciding whether to continue in absence of the accused
A
- The seriousness of the offence should not be considered — the principles would be the same whether the offence was serious or minor.
6
Q
Misbehaviour of the accused
A
- If accused behaves in an unruly fashion in the dock and thereby makes it impractical for the hearing to continue, the judge may order that the accused be removed from the court and the trial proceed in the accused absence
- In practice judge will warn the accused before doing so
- Can threaten will a charge of being in contempt of court
- An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint
- It may often be better to allow time to cool off, and to continue the trial in the accused’s presence.
7
Q
Voluntary absence of the accused
A
- If the accused, having been present for the commencement of his trial, later goes voluntarily absent then judge has discretion to proceed in their absence
- The sentence can also be passed in their absence
- Same applies if D voluntarily renders themselves incapable of participation in the trial through intoxication.
8
Q
Sickness of the accused
A
- If the accused’s absence from court is for reasons beyond the accused’s control, the trial may not continue in his or her absence unless the accused consents or if the case can be fully presented, including the accused’s own written evidence, without unfairness
- Should the accused become ill during the course of the trial, the judge must either adjourn the case until the accused recovers or discharge the jury
- If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the accused’s absence, and must always have regard to fairness.
9
Q
Treatment in court of an unrepresented accused
A
- If unrepresented the court will seek to give the accused such assistance as may seem appropriate
- Alternatively if accused dismisses their counsel but is still entitled to public funding the judge may grant an adjournment for the accused to be represented
- Although this is not a requirement.
10
Q
When will court stay proceedings for abuse of process
A
- Where it would be impossible to give fair trial
- Where a stay is necessary to protect the integrity of the criminal justice system
- Applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself - e.g., bad faith, executive misconduct.
11
Q
Written statements in criminal proceedings
A
- The CJA 1967, s. 9, provides for the admissibility of written statements in criminal proceedings.
12
Q
Additional written evidence
A
- If the prosecution wants to introduce additional written evidence that wasn’t originally included when the case was first presented or wasn’t part of a subsequent notice of additional evidence, they must follow a specific procedure
- The prosecution must give a copy of this additional written statement to all other parties involved in the trial.
- The other parties have the right to object to this statement being used as evidence. If an objection is raised, the statement can’t be used in the trial
- Time limits for objections, generally is five business days, though this can be adjusted under special circumstances.
13
Q
Admissibility of written evidence
A
- In effect, s. 9 statements are admissible only if all the parties agree.
- Even if a statement is admissible under s. 9, the court may require that the maker attend to give evidence
- E.g., where the defence dispute the contents of the statement but failed to object through an oversight.
14
Q
Agreed facts
A
- As an alternative to the reading out of witness statements, facts derived from such witness statement may be presented as agreed evidence
- The facts, which are admitted by all parties are presented
- They should be reduced to writing and provided to the jury providing they are relevant and do not contain inadmissible material.
15
Q
Objection to prosecution evidence
A
- Defence counsel will inform prosecution counsel before the start of the trial what parts of the prosecution evidence they object to.
- Prosecution counsel will not mention the disputed material in the opening speech.
- The question of the admissibility of the material will be dealt with by the judge at whatever point in the trial seems convenient.
- Arguments on admissibility take place in the absence of the jury.
16
Q
Voir dire
A
- In some cases, such as admissibility of a confession which is objected to - The judge cannot make a decision on the admissibility of the evidence until he or she has decided the facts of
- In those circumstances there will have to be a trial-within-a-trial, known as a voir dire.
- The voir dire has a lot in common with a trial.
1. The prosecution will call the witnesses who are relevant to the factual issue that has to be resolved. They will be examined in chief and then cross-examined by the defence.
2. The defendant can give evidence, and usually will.
3. And the judge will hear submissions from counsel on both sides. - The judge will then make a finding of fact and make a ruling on the admissibility of the disputed evidence.
- The jury return after the decision is made. If the judge refused to allow the evidence to be adduced, the jury will never hear anything of it or of the argument about it. If it has been ruled admissible, the jury will hear the evidence.
17
Q
Submission of no case to answer
A
- After the prosecution have closed their case, the defence may submit that the evidence does not disclose a case to answer in respect of any or all the counts on the indictment
- Test is set out in Galbraith
1. if there is no evidence that the crime alleged has been committed by the defendant then trial judge will stop the case
2. if there is some evidence, but the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
18
Q
Judge calling or recalling a witness
A
- Court has discretion to require a witness to give live evidence - even if neither side have chosen to call them
- This power should be sparingly exercised, and used only when necessary in the interests of justice.
19
Q
Discussion of the relevant law
A
- Prior to summing up the court will almost always invite counsel, in the absence of the jury, to make representations on how certain aspects of the case should be dealt with.
- Counsel is under a duty to bring all relevant authorities to the court’s attention even if some are unfavourable to their own argument
- Further, any procedural irregularity must be brought to the attention of the court during the hearing and not reserved to be raised on appeal.
20
Q
What can’t be referred to in prosecutors closing speech
A
- Serious consequences to police officers of their evidence being disbelieved,
- Abandon or attack the credit of the prosecution’s own witness
- Comment on the failure of the accused’s spouse or civil partner to give evidence.
21
Q
What can and can’t be referred to in defence closing speech
A
- Can’t refer to Likely consequences of conviction
- Can refer to - in a case where a co-accused runs a defence which conflicts with that of the accused he or she represents, entitled to comment upon the co-accused’s not having entered the witness-box, Hypotheses may be advanced which go beyond this version of events, always provided that other evidence has been called which supports such hypotheses
22
Q
Summing up
A
- Judges summing up falls into two parts
- Direction on the law +
- Summary of the evidence
- Counsel has duty to bring up any errors to judge at the close
23
Q
Written direction
A
- In virtually all cases the judge should provide the jury with a written list of questions (a route to verdict)
- Before giving to jury, they should be submitted to counsel so they can make suggestions and use it for their closing speeches.
24
Q
Failure to answer questions or give evidence
A
- The jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview (s. 34) or failure to give evidence
- Guidance as to the proper form of direction that should be given is in the CCC
- Although not expected to identify every fact in relation to which an inference may be drawn, the judge is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused.
25
Limitation to a s.34 direction
- No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case
- Where an accused’s account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34
- There was no requirement that the accused had specifically been asked about the fact that he had failed to mention in interview. The question was whether it was a fact that could reasonably have been mentioned
- The direction given in relation to a failure to answer questions must address not only the reason advanced for the failure, but any other factors relevant to the jury’s assessment of it, e.g., the age of the accused.
26
Questions from the jury
- The jury are permitted to ask questions of the judge during their retirement.
* The normal method of so doing is to pass a note to the jury bailiff who takes it to the judge
* These notes must be dated and timed
27
Rules regarding questions from the jury
- Lord Lane set out three propositions to assist judges who receive a note from a jury who have retired to consider their verdict
* 1 - if communication raises something unconnected with the trial, it can be dealt with without any reference to counsel
* 2 - in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel.
* This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
* 3 - If the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures … then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed
28
Majority verdict - time
- Majority verdict may not be accepted unless the jury have been considering their verdict for such period as the court considers reasonable having regard to the nature and complexity of the case, being in any event a period of not less than two hours
* Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included when computing the two hours
* Time spent not actually deliberating, for example in making their way to the jury room and electing a foreman, is catered for by CrimPD 8.6.3, which states that the jury should be allowed at least two hours and ten minutes for deliberation before the majority direction is given
29
Minimum number for acceptable majority verdicts
- Minimum majorities permissible are 11-1 or 10-2, or 10-1 or 9-1 (if one juror has been dismissed)
* A jury reduced to 9 must produce a unanimous verdict
* If (and only if) the verdict is guilty, the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict
* Failure to do so will result in any purported conviction being quashed
* However, it's fine if they give the number of majority and the minority can be worked out based on simple math
30
Jury unable to agree on a verdict
- If jury cannot agree on a verdict, the judge discharges them from giving a verdict
- When the jury are discharged, the accused is not acquitted but may be retried by a different jury
* Whether to ask for a retrial is at the discretion of the prosecution.
* If a second jury also fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence.
* In some cases, however, a third trial may be proper
* E.g. if a jury had been tampered with, or some cogent piece of evidence for the Crown had since been discovered
