9: Jury trials Flashcards
Accused MUST present @ start trial to plead. Court MUST not proceed without unless
D waived right to attend+ trial =fair.
Exceptions to accused’s presence mandatory:
- Accused’s misbehaviour
- Voluntary absence
- Ill
- Death
Judge MUST warn D at PTPH
of what?:
risk trial continuing without presence.
Discretion to continue without D:
- D’s behaviour
- Adjournment?
- Length adjournment
- Whether D is legal represented
- Whether legal rep can present his defence
- Disadvantage to D
- Risk of jury reaching improper conclusion
- General interest
- Effect of delay on witnesses memories
- Undesirability of separate trials.
What happens where D is misbehaving?
judge warn D, can return to dock later + makes undertaking. D can be held guilty of contempt. D NOT be handcuffed in dock UNLESS: real risk violence or escape + no alternative.
If trial is without D, judge MUST:
- During giving evidence; AND
- Summing-up
Expose weaknesses in pros case and make points for D + direction, absence not = guilt
SICKNESS OF D = Trial not continue UNLESS consent or not unfair. If D ill during trial, judge MUST:
- Adjourn until recovery; or
- Discharge jury
SICKNESS OF D = Trial not continue UNLESS consent or not unfair. If D ill during trial, judge MUST:
- Adjourn until recovery; or
- Discharge jury
BUT exception:
- if several D’s + one sick, trial may continue BUT NOT his own case
- D’s voluntary ingestion of drugs
- D has heart condition, but counsel can argue case effectively and had opp to give written evidence.
What happens where D is unrepresented?
court WILL assist his defence. Where D dismisses counsel + has legal aid during trial, judge MAY grant adjournment. Court MUST tell D end of pros case, his right – give evidence/call witnesses/be silent. Failure = MAY quash.
Restrictions on unrep D: cannot:
- Cross-examine complainants + child witnesses for certain offences
- Court can prohibit cross if circumstances of witness + case merit it + not contrary interest of justice.
Where D objects to Pros evidence on statements:
WHAT MUST HAPPEN??:
- D informs pros before pros opens
- Admissibility decided by judge, without jury
- If question how obtained - There many be a “on the voir dire” – both pros + d can call witnesses
- Parties make reps
- Judge announces findings
- Jury return, D can cross examine matters raised in voir dire
What will happen is D voluntarily absent?
Judge likely issue warrant for arrest.
What is an:
Abuse of process =
- D no longer receive fair trial;
- Unfair for D to be tried
MUST be considered separately. (2) requires balance competing interest, NOT (1). Only if pros case = abuse of process + is oppressive +vexatious, court has power.
Galbraith = test for no case to answer:
- If not evidence crime committed = judge stops case
- Evidence of tenuous character:
- Judge concludes pros evidence = jury could not properly convict, MUST stop upon submission no case to answer. E.G evidence inherently weak+tenuous.
- Pros evidence strength/weakness depends on witness reliability = one view = jury could properly convict = judge allow it.
What happens at an opening speech?
pros identify issues + outline evidence. Judge MAY allow def opening after pros.
Pros should not use emotive language. Opening should not address law unless complex. After opening, pros calls witnesses + reads written statements. If pros wishes additional evidence than served, MUST serve copy to others. If one opposes (giving notice) – statement CANNOT be red. 7 dys to object.
What is a s9CJA statement?
S9 CJA statements admissible if all parties agree. Even if admissible, court may require maker – give evidence.
What is s10CJA?
Agreed facts s10 CJA = should be in writing + provided to jury + relevant to issues + not inadmissible.
When pros evidence = such prejudicial effect, parties should “edit” by agreement. Striking out should NOT obscure what being deleted.
THE DEFENCE CASE
If D calls evidence other than accused
WHO OPENS THE CASE?:
D right to opening beginning of D’s case.
Norm accused called first, but court-discretion to depart. Character witnesses MUST called after accused.
A witness waiting to give evidence - what must they do?
Witness waiting give evidence MUST NOT wait in courtroom, unless party or expert.
Judge MAY call witness neither pros or D called, but only in interest of justice.
When must the prosecution make their closing speech?
What must advocates not do:
Pros closing speech before D’s. Advocates MUST NOT make personal criticisms of opponents in closing.
Pros MUST NOT = attack credibility of own witness + comment on serious consequences + D’s spouse not giving evidence.
Summing up includes:
- Direction on law
- Summary of evidence
D on summing up, MUST request good chara direction, not relying on it later.
What Defence closing
includes:
CAN advance hypotheses beyond client’s version. NOT refer to consequences of conviction.
Who make provide the jury with a written list of questions?
Judge MAY provide jury = written list questions, but should submit them to counsel.
Judge fails direction?:
- Pros burden of proof; and
- Discharge beyond reasonable doubt
A conviction is liable to be quashed.
Judge must give legal directions:
in what type of cases:
- Self-defence
- Alibi
- Provocation and loss of control; and
- Diminished responsibility
A direction MUST:
- Refer to burden of proof
- Respective role of judge and jury
- Issues of fact
- Summary of evidence
- Arguments on both sides
- Correct statements of inferences.
In summing up, what must the judge do?
Judge MUST identify Defence case.
Judge should not be extravagant or sarcastic., can give opinions.
What is a foreman?
Foreman = spokesman for jury + announces verdict.
What is a judge does not give a direction?
direction verdict must unanimous = NOT necessarily = conviction unsafe.
What is a:
Retirement jury?
What do they do?
jury can ask judge question = note to jruy bailiff -) judge. If note is unconnected to trial = no counsel nor bring jury to court. Otherwise = judge state in open court nature/content + seek advice of counsel.
Retirement jury =
Min majority
Max
Majority verdict NOT be accepted unless considered verdict for 2 hours 10 minutes.
Min majorities: 11-1 or 10-2 OR 10-1 or 9-1. Jury of 9 MUST be unanimous. If verdict = guilty, foreman MUST state no jurors who agreed/dissented.
What if there is a failure in jury size?
Failure jury size = conviction quashed.
Jury MAY convict on alternative offence only:
- Offence expressly charged; and
- Impliedly, includes allegation
Judge in summing up, MAY direct jury can find accused guilty alternative offence, even if pros nor D want this.
If jury no agree = judge discharges after giving verdict. Accused not acquitted but may be retried. Pros asks for retrial (discretion).
9Proof by written statement.
Written statement WILL = admission if:
- signed
- statement of truth
- copy served on each parties; and
- none other parties serves notice objecting statement, within 7 days from service copy.
Court MAY require person to attend court (s9(4)(b). If not mags, court MAY require person attend before hearing.
S10 CJA – formal admission
S10(1) Oral evidence MAY = admitted
by
and how
S10(1) Oral evidence MAY = admitted pros or D, + admission = conclusive evid. S10(2)An admission made outside court = MUST in writing. If written by individual, MUST signed. If made for D, MUST made by counsel/solicitor. S10(3) – admission = admission in later crim proceedings (inc appeal/retrial). S10(4) = admission MAY be withdrawn with court’s leave.
