5. The Course of Evidence -

Question 1

The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law. What are the essential features of this system?

Must Know

Answer 1

• The facts of the case, and evidence relevant to the determination of those
  facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
• It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked.
• Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
• During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
• Neither the judge nor the jury is generally entitled to go beyond the evidence presented by the parties and call witnesses or pursue inquiries of their own. The judge may require the prosecution to call a witness who has not been called, but this right is exercised only rarely, and although the judge has the right to recall witnesses where necessary in the interests of justice, it is exercised only in exceptional cases.
• By the same token, the judge should only ask questions of witnesses when, in the opinion of the judge, justice requires it. This will usually be for the purpose of clarification or the elimination of irrelevancy. Judges must be careful not to “descend into the arena” by asking questions which go beyond the points and issues being advanced by the parties themselves. Jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness.
• The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
• Facts may be judicially noticed where they are known and accepted and so cannot reasonably be questioned, or where the facts are capable of accurate and ready determination by reference to sources whose accuracy
  cannot reasonably be questioned. Judicially noticed facts do not need to be proved. In addition, a judge may admit as evidence any published documents that are deemed to be reliable sources of information in matters of public history, literature, science or art.

Question 2

Children 12 years or older must take an oath or affirmation. What about witnesses under 12?

Must Know

Answer 2

Witnesses under the age of 12 must:
* be informed by the judge of the importance of telling the truth and not telling lies, and
* after being given that information, make a promise to tell the truth, before giving evidence.

Question 3

Outline S84 EA06?

Answer 3

Examination of witnesses
(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the
contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Question 4

How do jury trials generally run?

Must Know

Answer 4

1. After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof tc.
2. The Crown then makes an opening address, in which the prosecutor will provide a detailed explanation of the charge or charges, reiterate the burden and standard of proof, and summarise the case against the defendant and the evidence that the Crown proposes to call.
3. Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness to clarify or qualify any matter which was raised during the crossexamination (“re-examination”). The judge may ask a witness any question that, in the judge’s opinion, is required in the interests of justice (s100 Evidence Act 2006).
4. If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In some cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In others, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.
5. The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and reexamination as set out above.
6. The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
7. Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
8. Finally, the judge sums up to the jury before it retires to consider its verdict.

Question 5

What is a view?

Answer 5

A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or building where the alleged offending took place). The judge decides whether or not a view should be held.