AO2-Criminal Trial And Procedures

Question 1

What do the police do when a crime has been committed?

Answer 1

talk to any victims or witnesses
• question possible suspects
• examine the scene
• look for physical or forensic evidence
• charge the offender and ensure the person is
taken to court.

Question 2

Why are the rights of the individual and the police balanced out instead than one party having more rights over another?

Answer 2

The rights of he individual are balanced with the rights of the police as if the individual has too many rights the police can do little to prevent crime and maintain order however if the police have too much power then it becomes corrupt and the individuals can become unjustly treated

Question 3

What are some of the rights of the individual against the police?
There is 11

Answer 3

Informed of the charge
Informed of their rights
Ask any police officer for their name, rank station etc.
Remain silent
Right to communicate with lawyers, family members or friends before questioning
To be released unconditionally on bail or brought to a court within a reasonable amount of time
Refuse to take body samples
Refuse to have photographs taken
Refuse to allow search of property

Question 4

What rights do the police have?

There is 9

Answer 4

Question suspects for a reasonable time
Demand name and address of the offender
Question wittinesses and victims
Take fingerprints of persons over 15 years
Search a car if drugs are reasonably believed to be found
Search their person or package if they reasonably believe they are carrying a weapon
Arrest with or without a warrant
Use reasonable force to make an arrest
Engage in entrapment

Question 5

What is a summons?

Answer 5

A summons is a document that outlines to the offender what charges they have been laid with and directs them when they need to appear in court.

Question 6

What is the one instance when the accused must speak?

Answer 6

To say their name and address

Question 7

What is a warrant, when is it used and and how is one obtained?

Answer 7

A warrant allows the police to arrest a person even when a crime made by that person hasn’t immediately happened.

A warrant is usually used by the police when a person ignores a summons and therefore doesn’t attend their hearing/trial or if the offender is in hiding or attempting an escape

A warrant can only be obtained by a court order passed by a judge

Question 8

When does an arrest occur without a warrant?

Answer 8

Police will usually arrest without warrant any person reasonably believed to have committed an indictable offence either in Victoria or elsewhere which, if committed in Victoria, would be an indictable offence.

Question 9

When a person commits an offence, the police arrest the offender as they believe it is necessary to:

Answer 9

• ensure the appearance of the offender in court
• preserve public order
• prevent the continuation or repetition of an offence or the commission of a further offence
• ensure the safety or welfare of the public or the offender.

Question 10

During an arrest the police must inform the offender…

Answer 10

• tell the suspect they are under arrest and, depending on the circumstances, touch the suspect to indicate clearly that they are detained and must remain with police
  • give a reason for the arrest unless the suspect makes it impossible to be given the information
  • tell the suspect that anything said may be used as evidence in court
• inform the suspect of the right to contact a friend, relative or lawyer to inform them of their whereabouts – this contact is facilitated at the police station
  • take the suspect to the police station for questioning.

Question 11

Why do police search with a warrant?

Answer 11

If police reasonably believe that a search of private premises is necessary to find evidence related to a crime, then they must apply to a court for a warrant

Question 12

In what situations can the police search property without a warrant?

Answer 12

When the police reasonably believe that the offender:
•is committing a serious indictable offence
• has committed a serious indictable offence in Victoria or elsewhere
• has escaped from legal custody.

Question 13

What is the purpose to search without a warrant after an arrest has been made?

Answer 13

The purpose of a search is to find evidence or weapons that might help the prosecutions case or confiscate items that might help the offender escape.

Question 14

What are the type of body searches

Answer 14

Pat-down/frisk search

Strip/full search

Question 15

What is the role of the police in the community?

Answer 15

The role of the police is to serve the public and enforce the law. The police preserve the peace and act as a deterrent when police are present. The police also protect life and property of the public and prevent crimes from occurring and apprehend offenders.

Question 16

Describe a pat down (frisk) search

Answer 16

This is when police use their hands to see if items are concealed in clothing. The police can ask to remove any outer garment or outer piece of clothing

Question 17

Describe a strip full search.

Answer 17

Is when an officer of the same sex supervises the removal of clothing for examination as to whether they are concealing anything. However there should be no touching of the body and is carried out in private.

Question 18

Name the court that only has “hearings”

Answer 18

The Magistrates Court

Question 19

What is the first step in a summary offence

Answer 19

A mention court

Question 20

What happens at a mention court

Answer 20

The accused will either plead guilty or not guilty

Question 21

Before a summary hearing what usually occurs to streamline the process

Answer 21

A summary case conference
And
A contest mention hearing

Question 22

What is a summary case conference

Answer 22

This is where the prosecution and the accused with their legal representation exchange documentation and discuss issues in the dispute including the charges laid. The accused can still plead guilty during this time.

Question 23

What is a preliminary brief?

Answer 23

A preliminary brief is documentation that shows the charges laid, where and stressing the importance of obtaining legal representation, a summary of the case and their previous convictions

Question 24

What happens at a contest mention hearing?

Answer 24

This hearing estimates the time that the case will proceed for and that the accused has obtained legal representation. The court will also look at the number of witnesses, required documentation and the issues in the case

Question 25

What happens during a summary hearing

Answer 25

The accused will plea again. Then opening address are made by the parties. The parties will present their evidence and cross-examine the witnesses of the opposing party. Then the magistrate will reach a verdict and pass a sentence if found guilty

Question 26

In general what is bail

Answer 26

Bail is the conditional release of a person from legal custody with the understanding that they will appear at their hearing or trial at the specific date. Bail can be granted at any given time during the criminal procedure. Any person has the right to make a bail application to a bail justice in the magistrates court. The release is conditional as a surety will usually be made but also there are certain conditions they must abide by such as the confiscation of passport or that you must stay away from the victim or witnesses.

Question 27

Why is bail usually granted

Answer 27

As everybody has the right to be innocent until proven guilty and it is unjust that a person is in legal custody when they are considered innocent.

Question 28

In what circumstances can bail be refused

Answer 28

Bail can be refused if:
They are a posed threat to society, their presence might endanger society
They might reoffend
They might interfere with witnesses
Abscond
If they are charged with a serious crime like murder or treason
Charged with drug trafficking
They are already in custody for another crime

Question 29

What is a surety

Answer 29

When bail is granted there is a surety, who is a person over 18 years old and holds the responsibility of the accused to appear in court during their hearing or trial, if the accused doesn’t show up on the court date the surety is liable for a large sum of money that is decided on before bail is granted

Question 30

What is remand

Answer 30

Is the holding of a person/suspect in lawful custody until their trial or hearing comes to the court or until bail is granted. The purpose of this is to keep society safe from people who are believed to have committed crimes. If the person is convicted of a crime, their time in remand will influence the sentence and if the sentence is imprisonment the time in remand is deducted from the total sentence

Question 31

What is a committal hearing?

Answer 31

It is when the prosecution’s council and the accused’s council will present evidence and make their submissions in written forms and question witnesses. The court determines if the evidence is of sufficient weight to support a conviction by a jury at a trial. If the court decides it is sufficient evidence to convict the accused, a Prima facie case exists and the accused is sent to trial. If it is not enough evidence then the court will tell the prosecution to come back with sufficient evidence

Question 32

What is the purpose of a committal hearing

Answer 32

The purpose of a committal hearing is to reduce the number of double jeopardy trials where a person can not be tried for the same crime twice. It gives the prosecution an idea as to if the evidence is sufficient enough to support a conviction.

Question 33

What is a Prima facie case

Answer 33

When it is established that there is enough evidence against the accused to support a conviction in either the county or Supreme Court when it comes to trial

Question 34

What are the aims of criminal sanctions

Answer 34

To punish
To protect
To denunciate/condemn
To rehabilitate
To deter

Question 35

Explain the following aim of criminal sanctions: To Punish

Answer 35

The law must punish offenders so that victims or their families can seek retribution and justice without taking the law into their own hands. If punishment did not exist the. Victims and their families would seek retribution through unlawful means

Question 36

Explain the following aim of criminal sanctions: To Protect

Answer 36

The aim of a sanction such as imprisonment is to take away the freedoms of serious offenders and also segregate them from society. This ultimately keeps society safe and preserves public order.

Question 37

Explain the following aim of criminal sanctions: To denunciate

Answer 37

The court will deal a harsh sentence to show that the court disapproves and condemns the actions of the offender, this act made by the court also tells the offender that the community denounces any action that is harmful.

Question 38

Explain the following aim of criminal sanctions: To Deter

Answer 38

The sanctions imposed aims to deter offenders from re-committing and it also deters society from possible committing a crime as they realise the consequences of the unlawful act. A punishment acts as a general deterrent and discourages people from committing crimes whereas a specific deterrent is aimed at stopping offenders re-offend

Question 39

Explain the following aim of criminal sanctions: To Rehabilitate

Answer 39

This helps offenders change their ways into behaviour that society deems acceptable, it also prepares offenders to reintegrate themselves into society.

Question 40

List the criteria for effective sanctions.

Answer 40

• appropriate to the severity of the crime committed
• appropriate for the offender, taking into consideration the financial, social, cultural and health
circumstances of the offender
• acceptable to the community
• able to fulfil the aims of criminal sanctions.

Question 41

What is imprisonment

Answer 41

Imprisonment is the most serious sanction that Victoria has and is usually given to extreme offences. Imprisonment is the taking of an offender from society and placing them in a secure facility for a certain amount of time

Question 42

How are prisons effective?

Answer 42

Imprisonment fulfils the aim of protecting the community because when a person is in prison, he or she cannot harm the community. To some extent imprisonment deters individuals from committing crimes because the normal law-abiding citizen is likely to fear the possibility of being caught and imprisoned.

it is important to rehabilitate the offender. In prison, prisoners may undertake programs to help them lead useful lives when they leave prison which can rehabilitate them.

The majority of law-abiding citizens are deterred from committing offences because it is morally wrong, and if they get caught they will be punished.

The courts will at times show their disapproval of a particular type of behaviour (denunciate the behaviour of the accused) and give a severe sanction. This is to try to educate the offender that their type of behaviour is not acceptable to society

Prison punishes offenders as your Liberty and freedom is taken away.

Prison also is acceptable to the community as society believes it is necessary to take serious offenders away from society, prisons are appropriate to the offence as only certain offences can have a sanction of imprisonment.

Question 43

What is a fine

Answer 43

A fine is a monetary penalty for committing a crime expressed in penalty units and can be accompanied with or without a conviction.

Question 44

How is a fine an effective criminal sanction

Answer 44

Money is a valuable object it not only punished offenders as it deprives them of said money but also deters them and society as generally people do not want to lose a substantial amount of money.

Fines don’t necessarily protect society as offenders are not segregated from the general population and they also don’t rehabilitate offenders as fines don’t educate offenders to change their ways

Fines do denunciate the offence as the court shows disapproval by giving a fine

Question 45

When making a fine the judge will usually consider

Answer 45

• the financial circumstances of the offender, their income and whether they have a job
• the responsibilities of the offender including dependants
• any loss or destruction of, or damage to, property suffered as a result of the offence
• the value of benefit received by the offender from the offence
• any forfeiture, compensation or restitution order imposed.

Question 46

What is a community corrections order

Answer 46

Is a non custodial sentence that allows the offender to remain in the community. The courts draw on the assistance of family and friends to rehabilitate the offender and protect them and society. There are usually conditions associated with a CCO such as reporting to a CC officer every week or community service work.

Question 47

What is the maximum length of a CCO a court can give out

Answer 47

Magistrate - two years

County or supreme - up to the maximum term of imprisonment of that crime

Question 48

What is a hand-up brief, what does it contain?

Answer 48

A hand-up brief contains the date of the committal mention hearing, information relating to the importance of obtaining legal representation, a copy of the charge sheet, copies of documents the prosecution intends to produce as evidence, copies of witness statements, interview transcripts, photographs and a list of exhibits. It also informs the accused of future hearing dates and their purposes. The accused is entitled to the hand-up brief at least 42 days before the committal mention hearing unless the court states otherwise

Question 49

What happens if the accused pleads guilty in a trial

Answer 49

If the accused pleads guilty no jury is required as the accused has admitted guilt. The prosecution presents a summary of the evidence, prior convictions are read out and the judge decides on a sentence.

Question 50

Lost the steps of a criminal trial in the county or Supreme Court

Answer 50

The case is called and the appearances are entered
The accused is arraigned 
The jury is empanelled 
The judge addresses the jury 
Opening addresses are made
Prosecutor calls crown witness
No-case submission may be made
The accused's council calls witnesses 
Closing addresses are made
Judge sums up and addresses the jury
Jury retires
Jury gives verdict 
Pre-sentencing 
Sentencing

Question 51

Explain the following process of a trial: The case is called and the appearances are entered

Answer 51

The prosecutor announces that he or she
appears on behalf of the Crown. The accused’s counsel announces that he or she appears on
behalf of the accused.

Question 52

Explain the following process of a trial: the accused is arraigned

Answer 52

The accused is named and the charges in the
indictment are read out. The accused is asked to plead guilty or not guilty. If the accused pleads
not guilty the jury is selected.

Question 53

Explain the following process of a trial: the jury is empanelled

Answer 53

The jury is chosen from a panel of jurors whose suitability is scrutinised
during the empanelment process. In criminal cases there are 12 jurors, although up to 15 jurors may be empanelled

Question 54

Explain the following process of a trial: the judge addresses the jury

Answer 54

The judge provides basic information to help jurors understand points of law and procedure, the trial process and its participants.

Question 55

Explain the following process of a trial: opening addresses are made

Answer 55

The prosecutor gives an opening address telling the jurors what the case is about, and refers to important witnesses and evidence and outlines what they are trying to prove. The accused’s counsel responds to the prosecutor’s opening address. The accused’s counsel has the right to reply to the opening speech of the prosecutor to outline issues/doubts in the trial and indicate briefly the facts, and the inferences which can be made from those facts, that are not contested.

Question 56

Explain the following process of a trial: prosecutor calls crown witness

Answer 56

Each witness is sworn in (this involves the witness swearing an oath, or making an affirmation if the witness does not hold religious beliefs), examined-in-chief (by the prosecutor), cross-examined (by the accused’s counsel) and re- examined (by the prosecutor).

Question 57

Explain the following process of a trial: a no case submission may be made

Answer 57

If the accused’s counsel feels that the prosecution has not proved the guilt of the accused, he or she can submit to the court that there is no case to answer meaning no crime actually occurred.

Question 58

Explain the following process of a trial: closing addresses are made

Answer 58

The prosecutor and the accused’s counsel address the court with closing speeches. The prosecutor addresses the court first. Both counsels explain to the jury the important parts of the evidence that support their case.

Question 59

Explain the following process of a trial: judge sums up and directs jury

Answer 59

The judge decides which issues in dispute (identified by legal counsel) are real issues and explains these issues, and any relevant law, to the jury. If the trial judge believes that there is insufficient evidence against the accused for a jury to return a guilty verdict, he or she can direct the jury to acquit the accused. The jury does not have to follow this direction (although in practice the jury does follow it). The judge cannot direct the jury to find a verdict of guilty.

Question 60

Explain the following process of a trial: jury retire to the jury room to deliberate.

Answer 60

The jury must:
– discuss all the evidence
– decide on questions of fact; that is, whether they believe the accused is ‘guilty’ or ‘not guilty’
according to the evidence
– apply the law
– reach a verdict.

Question 61

Explain the following process of a trial: jury delivers its verdict

Answer 61

If the accused is found not guilty, he or she is free to leave the court, and cannot be tried again for the same offence

Question 62

list the trends in recidivism

Answer 62

having previous sentences or having previously been sentenced to prison increases a person’s chance of reoffending
people under 25 are more likely to reoffend than older people
men reoffend more than women
people who commit crimes against property are more likely to reoffend than people sentenced for other crimes
people who were imprisoned are more likely to reoffend than people who received a fine or a suspended sentence

Question 63

what is a recidivist

Answer 63

a person who continually commits crimes and is punished but still commits them despite being punished for them

Question 64

list in order from highest to lowest the court hierarchy

Answer 64

High Court
Supreme Court (court of appeal)
Supreme Court (trial division)
County court
Coroners Court, Magistrates' Court, Children's court

Question 65

List the reasons for a court hierarchy

Answer 65

The court hierarchy allows for specialisation, with the courts developing expertise in dealing with the types of cases that come before them.

The court hierarchy also enables the parties to a court case to appeal to a higher court if they are not
satisfied with the decision in a lower court.

The court hierarchy is a necessary part of the doctrine of precedent (law-making through courts) because the process of law-making through courts depends on a decision being made in a higher court which is binding on lower courts. This enables individuals and lawyers to predict the likely outcome of a case.

Question 66

In what circumstances can a person appeal to a higher court

Answer 66

On a point of fact - a dispute on the conviction/outcome or the sanction given
Or a point of law - dispute on how the law was implemented during the trial (e.g. The judge misdirected the jury in the situation)

Question 67

From the magistrates court, where can a person appeal to

Answer 67

A point of fact - county court

A point of law - Supreme Court (court of appeal)

Question 68

From the county court, where can a person appeal to

Answer 68

On any point to the Supreme Court of appeal

Question 69

What is the difference between original jurisdiction and appellate jurisdiction

Answer 69

When a court is hearing a dispute for the first time it is said to be operating in its original jurisdiction (area of power). When a court is hearing an appeal it is said to be operating in its appellate jurisdiction.

Question 70

What can the high court do that other courts can’t

Answer 70

Go back in their previous decisions and they also deal with cases that involve the interpretation of the constitution where any other court cannot

Question 71

What is bench clerk

Answer 71

A bench clerk works in the Magistrates’ Court and the Children’s Court and announces the cases and calls people into court. He or she helps the magistrate draw up paperwork, swears in witnesses and directs people where to stand. The bench clerk is usually a deputy registrar or trainee registrar.

Question 72

What is a barrister

Answer 72

A barrister is briefed (given all the information about a case) by a solicitor and will appear in court on behalf of a client. A barrister who provides outstanding legal service can apply to the Chief Justice of the Supreme Court to be known as a senior counsel (SC). This allows the barrister access to high-profile cases

Question 73

What is a judge and what is their role?

Answer 73

The role of the judge is to conduct trials. The judge ensures that the rules of evidence and procedure are followed and in some instances asks the witnesses questions to clear up points made. In a criminal trial the judge decides on the sanction if a person is found guilty. In a civil trial when there is no jury the judge decides on the outcome of the case.

Question 74

What is a judicial registrar

Answer 74

These registrars must be qualified to practise law and can hear less complex matters in the Magistrates’ Court, Federal Court and Family Court. Judicial registrars are not judges, but they exercise more power than ordinary registrars.

Question 75

What is the judges associate

Answer 75

The judge’s associate sits in front of the judge in the County Court and Supreme Court. He or she performs various administrative and court duties to assist the judge, such as completing paperwork, liaising with parties, keeping a record of court proceedings and taking verdicts.

Question 76

What is a magistrate

Answer 76

The Magistrates’ Court is presided over by a magistrate. The magistrate ensures that the rules of evidence and procedure are followed, can ask witnesses questions to clear up points made and decides on the sanction in a criminal case and the civil remedy in a civil case. Magistrates are usually barristers or solicitors who have at least five years’ experience.

Question 77

What is a prothonotary

Answer 77

The prothonotary is the chief clerical and administrative officer in the Supreme Court. The prothonotary’s office is the place where court documents are filed, searches of court files are conducted and court fees are paid.

Question 78

What is a registrar

Answer 78

The registrar is the manager/administrator of the court. A registrar or deputy registrar (or member of the registry staff) will assist people at a court counter.

Question 79

What is a Solicitor or duty solicitor

Answer 79

The solicitor will give advice about the law and the person’s rights under the law. If the matter has to go to court, the solicitor will appear in court on behalf of the client (usually only in the Magistrates’ Court) or will instruct a barrister to appear in court on behalf of the client. A duty solicitor, from Legal Aid Victoria, is available at court for anyone who does not have their own solicitor.

Question 80

What is the role of the tip staff

Answer 80

The tipstaff announces that the court is in session and administers oaths or affirmations to witnesses in the County Court and Supreme Court. An important duty of the tipstaff is to look after the jury. He or she escorts jury members into the courtroom and into the jury room, and deals with any practical matters for the jury

Question 81

What is the role of a jury?

Answer 81

The jury system is based on trial by peers. The jury in a criminal trial must listen to all the evidence, piece the evidence together and decide whether the accused is guilty or not guilty. In a civil case the jury decides who is in the wrong. It is the judge’s role to explain the law to the jury. The jury considers the evidence with respect to the law and makes its decision.

Question 82

How many jurors are used in the county court or Supreme Court?

Answer 82

A jury of 12 is compulsory in criminal cases in the County Court or Supreme Court, where the accused pleads not guilty. Three extra jurors can be empanelled for lengthy trials in case someone falls ill.

Question 83

In what circumstances can a juror find the accused guilty

Answer 83

The finding of guilt must be made beyond reasonable doubt in a criminal case. This means that if a member of the jury is not sure that the accused is guilty, he or she must state ‘not guilty’. It is not possible for a juror to be absolutely certain because he or she was not there when the crime was committed, but they must be as sure as rationally possible

Question 84

What is a unanimous verdict? What is a majority verdict? In what instances can only a unanimous verdict be given to convict the accused? What is a hung jury?

Answer 84

A criminal jury must first try to reach a unanimous verdict. If this is not possible, a judge may allow a majority decision for criminal offences other than murder, treason, trafficking or cultivating a large commercial quantity of drugs or narcotic plants and Commonwealth offences. For a majority verdict, 11 out of 12 jurors must agree. If a majority verdict cannot be reached, there is a hung jury. This means that the accused has not been found either guilty or not guilty, and can be tried again at a later date.

Question 85

In what circumstances can a person be ineligible for jury duty

Answer 85

People may be ineligible to serve on a jury because of their occupation. This includes people who in the last 10 years have worked as governors, police officers, legal practitioners, judicial officers, bail justices, ombudsmen, parliamentarians and public servants employed in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration.

Question 86

How can people be disqualified from jury service

Answer 86

People can be disqualified from jury service because of what they have done. For example, people may be disqualified because they have been in prison, they have recently served a community corrections order, they have been convicted and sentenced for an offence within the last two years or they are currently charged with an indictable offence. This disqualified category also includes people who have been declared bankrupt and have not obtained a discharge.

Question 87

When can a person be excused from jury duty

Answer 87

People can apply to the Juries Commissioner to be excused from jury duty if they have a good reason. Possible reasons include ill health, excessive inconvenience to get to the court, substantial hardship in attending court, or having to care for dependants.

Question 88

What is the challenging process

Answer 88

A courtroom selection process then begins where both parties in a case can either select, or object to, a particular person being on the jury. Each juror’s name (or number in some cases) is read out and the barristers may challenge him or her. A challenge may occur as a party may believe that a juror may not fall in their favour

Question 89

What is a peremptory challenge and a challenge for cause and how many of these do the accused’s council have

Answer 89

A peremptory challenge is when the accused’s council may challenge a juror without any reason and the juror that is challenged is excused. The accused’s council have 6 peremptory challenges. A challenge for cause is when the council will challenge a juror for a particular reason, they have unlimited amount of these challenges

Question 90

How does the prosecution challenge a juror

Answer 90

The prosecution is able to stand aside up to six jurors without a reason, and is allowed unlimited challenges with a reason. Those jurors who are asked to stand aside return to the jury pool and may go through the jury selection process for another trial. If a person is not selected for a trial they will be dismissed after their second day in the jury pool.

Question 91

List the advantages of the jury system

Answer 91

It provides a system whereby the accused is trailed by peers

Provides an opportunity for the general community to be involved

it reflects community

it spreads the responsibility of the decision over more shoulders

Question 92

Explain the following advantage of the jury system: provides a system of trial by jury

Answer 92

The members of the jury are picked randomly from the public and are a cross-section of the community. A person being tried can therefore feel confident that they are being tried by ordinary men and women like themselves, not a person in authority.

Question 93

Explain the following advantage of the jury system: it provides an opportunity for the general community to be involved

Answer 93

The jury system allows ordinary people to be involved in the legal system by being part of a jury and seeing for themselves how the legal system works. This helps the general community to respect the legal system.

Question 94

Explain the following advantage of the jury system: it reflects community values

Answer 94

The people on the jury bring community values into the decision-making process. A jury does not need to give a reason for its decision, therefore it can make a decision based on the jury members’ values.

Question 95

Explain the following advantage to the jury system: it spreads the responsibility of the decision over more shoulders

Answer 95

The use of a jury allows the responsibility of the decision to be spread over more shoulders, rather than being placed solely on those of a judge.

Question 96

List the 6 disadvantages of the jury system

Answer 96

• it is not a true cross-section of the community
• it is difficult for jury members to understand complicated evidence
• jurors may be influenced by the arguments of cleverly barristers
• jurors may be influenced by the media
• jurors may have personal biases
• jurors may not follow the law

Question 97

Explain the following disadvantage of the jury system - not a true cross section of the community

Answer 97

juries are not always a true cross-section of the community because some people are unable to serve on a jury, such as members of the legal profession or people who have committed a crime. There are also some people who can choose not to be on juries, such as people who care for dependants or who would have to travel long distances to court. The system of challenges also means that some types of people may not be represented on a jury.

Question 98

Explain the following disadvantage of the jury system - it is difficult for jury members to understand complicated evidence

Answer 98

The general public are put into a position where they have to listen to complicated evidence and make a decision of great importance to the parties involved.

Question 99

Explain the following disadvantage of the jury system - jurors may be influenced by the arguments of cleverly barristers

Answer 99

Every barrister will try to influence the jury to find in favour of their client. Barristers play on the emotions of the jury and will often make powerful closing speeches which can cause jurors to put aside logical arguments. The more experienced barristers will have greater success in influencing a jury.

Question 100

Explain the following disadvantage of the jury system- jurors may be influenced by the media

Answer 100

Some of the better known and media-worthy cases will be known to the jurors before they attend court. They could therefore have formed opinions about the case before they hear the evidence.

Question 101

Explain the following disadvantage of the jury system- jurors may have personal biases

Answer 101

Jurors have to be able to put aside all personal biases to be able to make a decision that is fair.

Question 102

Explain the following disadvantage of the jury system - jurors may not follow the law

Answer 102

jurors do not have to give a reason for their decision, they may decide to ignore the law and make their decision for another reason. Also, the accused does not know why a decision has been made.

Question 103

Briefly explain the adversary method of trial

Answer 103

This system is based on the two parties to a civil dispute or criminal case battling to win the case, each party acting as the adversary of the other.

Question 104

List the 5 key aspects of the adversary system

Answer 104

• the role of the parties, party control
• the role of the judge
• the need for legal representation
• the rules of evidence and procedure
• the burden and standard of proof.

Question 105

Explain the aspect of the adversary system - party control

Answer 105

Each party has control of their own case. As long as the rules of evidence and procedure are followed, each party (accused and prosecution) can decide:
• how to investigate the facts of the case
• how many witnesses to call in the hearing or trial
• what sort of evidence to bring out
• whether to have legal representation
• the method employed to bring out the evidence.

Question 106

Explain the following aspect of the adversary system - role of the judge

Answer 106

The role of the judge is an essential element of the adversary system. There must be an independent arbitrator to ensure that the case is conducted according to the rules of evidence and procedure, and that both sides are treated fairly.

Question 107

Explain the following aspect of the adversary system - rules of evidence and procedure, why are these made

Answer 107

The rules of evidence ensure that only evidence that is relevant to the case is heard by the court. Prior convictions are not able to be heard by the court until the sentencing stage. Indirect or opinion evidence is not allowed in the court expert opinion can be given as evidence

Question 108

Explain the following aspect of the adversary system - role of legal representation, what is the problem without legal representation

Answer 108

each party should be represented by legal representatives with equal skill and efficiency. In this way, they are able to present the best evidence in support of their case and expose the truth. If the parties are not equally represented then the person with the most skilled legal representative may win the case, regardless of the truth.

The average person would have insufficient knowledge of the rules of evidence and procedure

Question 109

List the 4 advantages of the adversary system

Answer 109

• The truth should emerge based on questioning the witnesses
• it relies on oral evidence
• each party controls their case
• the decision is made by an impartial 3rd party arbitrator

Question 110

What are the 5 disadvantages of the adversarial system

Answer 110

• Unequal representation
• the truth may not emerge
• oral evidence may lead to incorrect assumptions
• high cost of proceedings
• the legal expertise of the judge is undermined

Question 111

Explain the 3 types of witness examinations

Answer 111

question their own witnesses (examination-in-chief) and then the other side tries to show flaws in the evidence given (cross-examination). The side calling the witness is then able to question the witness again to clear up any points which arose during cross-examination (re-examination).

Question 112

Explain the following advantage of the adversary system- the truth should emerge based in questioning witnesses

Answer 112

Both sides are striving to win. Both sides question the witnesses and try to show their case in the best light. During this process the truth should emerge.

Question 113

Explain the following advantage of the adversary system - it relies on oral evidence

Answer 113

Because witnesses are required to give oral evidence, judges, magistrates and juries are better able to see whether a witness is telling the truth.

Question 114

Explain the following advantage of the adversary system - each party controls their case

Answer 114

The parties are more likely to feel satisfied with the outcome if they are in control of running their own case. They may feel that they have done everything possible to win the battle.

Question 115

Explain the following advantage of the adversary system - the decision is made by an impartial 3rd party arbitrator

Answer 115

Decisions in the courts are made by impartial decision-makers: the magistrate in the Magistrates’ Court, the judge in a higher court, or the jury if a jury is present. The public are more likely to feel confidence in the decision of impartial decision-makers.

Question 116

Explain the following disadvantage of the adversary system- unequal representation

Answer 116

The parties to a case can be greatly disadvantaged if their legal representative is not well prepared. Parties to a case in court need to be represented by someone who can bring out the evidence that is advantageous to them, otherwise they are not in an equal position to win the case.

Question 117

Explain the following disadvantage of the adversary system - the truth may not emerge

Answer 117

The process of questioning and cross-examination should bring out the truth but one party may be withholding vital evidence that is not known to the other side and that may not be brought out in the trial. The main aim of both parties is to win the case, rather than get at the truth.

Question 118

Explain the following disadvantage of the adversary system - oral evidence may lead to assumptions

Answer 118

Oral evidence depends on the witnesses being able to answer questions correctly and convincingly in court. If they make mistakes, they can give the wrong impression and affect the outcome of the case.

Question 119

Explain the following disadvantage of the adversary system - high cost of proceedings

Answer 119

This is primarily due to the parties’ need to control and win their cases. To do this, they need to employ the best legal representative. If a person is accused of a crime, it is very expensive to show that the evidence held by the prosecution is incorrect. In a civil case it is very expensive for the plaintiff to bring a case to court, and it is also very expensive to defend a case

Question 120

Explain the following disadvantage of the adversary system - the legal expertise of judges is underused

Answer 120

Judges generally only ask questions to clarify points made by the witnesses. They rarely call witnesses themselves. If they did ask too many questions of the witnesses they might be thought to be favouring one side of the dispute. This could be grounds for appeal.

Question 121

In which ways can the adversary system lead to a miscarriage of justice

Answer 121

• the case for the accused is rushed or put together in a short time
• one side withholds evidence, is late in disclosing evidence or fabricates evidence
• unreliable forensic procedures lead to the conviction of the wrong person
• an over-reliance on expert evidence serves to confuse rather than clarify the issue in dispute.