CLP 5 - Trial Flashcards
What is a Legal Burden as opposed to an Evidential Burden?
Requirement to prove an element of your case to the prescribed standard
- A Legal burden - standard for prosecution ‘beyond all reasonable doubt’ // standard for the defence ‘balance of probabilities’
What is an Evidential Burden as opposed to a Legal Burden?
Have to raise some evidence to satisfy the judge that the matter should be argued before the jury
When should a Turnbull direction be given?
- The Defendant disputes the identification evidence; and
- The case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.
What are the parts of a Turnbull warning to the Jury?
- explain mistaken witnesses can be convincing
- direct the jury to examine the circumstance in which the identification by each witness came to be made.
- remind the jury of any specific weaknesses in the identification evidence.
- whether there is evidence to support the correctness of the identification.
What are the considerations for the judge in a Turnbull style case?
- What is the quality of the identification?
- Is there other evidence to support the correctness of the identification?
What if the judge considers the visual identification in a Turnbull case to be poor?
- If there is no supporting evidence, the judge should withdraw the case from the jury and direct an acquittal.
- If there is supporting evidence, the judge can leave the jury to assess the weak identification.
What are the four key aspects to making an application to exclude a confession?
- Advance notification
- Timing
- Voir dire
- Submissions
At what point in proceedings can an application to exclude a confession be made?
- pre-trial hearing listed specifically for this purpose, or
- just prior to opening the case to the jury.
Who hears the evidence in a Voir dire?
The judge:
Under 76(2) the prosecution must prove beyond reasonable doubt that the confession was not obtained by:
(a) oppression; and/or
(b) by anything said or done which was likely in the circumstances to render any confession unreliable.
Who can call their evidence in a Voir dire?
The prosecution must, the defence can
Is the defendant present during a Voir dire?
Yes
Is the Jury present during a Voir dire?
No in the crown court (the judge may well be the same in the magistrates’ court)
When is a Voir dire not required when considering whether to exclude a confession
If there is no dispute as to the facts
What is the advance notification protocol in respect of excluding a confession in the Magistrate’s court?
- Defence skeleton argument submitted 14 days before trial.
- Prosecution response 7 days after that
When should s.76 applications be dealt with in the magistrates’ court?
As a preliminary issue
When should a Voir dire be held in the Magistrates’ court?
Where the application is under s.76 or both s.76 & s.78 and the evidence is disputed.
If application is only under s.78, the magistrates have discretion to hear all the evidence in one go.
At what point in proceedings should a Voir dire be held in the Crown Court?
Generally at the PTPH
When is a Voir dire required in the Crown Court?
Where an application is made under s.76 and the evidence founding the application is under dispute.
What are the three types of judges that sit in the Crown Court
- Circuit Judges
- Recorder (barristers and solicitors who sit part-time)
- High Court Judges
What is the Role of the judge in the Crown Court?
- arbiter of law
- makes rulings about the admissibility of evidence
- directs the jury about matters of law
- can direct a jury to find a defendant not guilty
What is the role of the jury in the Crown Court?
- abiter of facts
- decides whether the defendant is guilty
- must accept and pply the judge’s directions about the law.
Are legal arguments in the Crown Court heard before or after the Jury are sworn in?
Either
How is Jury selection carried out?
16 people go into the court of which 12 are chosen. The defendant has the right to object to any juror.
Is the defendant required to give evidence at the Crown Court trial?
No, but failure to do so may result in adverse inference being drawn (s35)
When does the defence have the right to make an opening speech?
only if one or more defence witnesses (other than the defendant) will be called to give factual (as opposed to character) evidence.
What happens after the defence case is closed in the Crown Court?
Legal discussions are held to consider any matters of law that have arisen.
When can the prosecution make a closing speech in the Crown Court?
- If the defendant is legally represented, or
- If the defence has called at least one defence witness to give factual (rather than just character) evidence, or
- the court permits
What are the two parts to a judges summing up in the Crown Court?
- Summing up of the Law
- Summing up of the facts
What is the minimum time a Jury must deliberate before a majority verdict can be given?
2 hours (though, in practice 2 hrs 10 mins)
When should the Court accept a majority judgement?
After the minimum period has expired (2.10)
It appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case.
Who does the jury inform when they have reached a verdict?
They will inform the jury bailiff
What is the Crown Court Procedure?
1) Legal arguments
2) Jury selection and swearing in
3) Judge’s preliminary instructions to the jury,
4) Prosecution opening speech
5) Defence identify matters in issue
6) Prosecution evidence
7) Conclusion of the prosecution case
8) submission of no case to answer
9) Right to give evidence and adverse inferences
10) Defence opening speech
11) Defence evidence
12) Legal discussions
13) Closing speeches
14) Judge’s summing up
15 Jury bailiff sworn & Jury retire
16 Verdict
What sort of offence is a s.20 offence?
Eitherway
When the defence has a burden of proof (for example insanity or diminished responsibility), what is the standard of proof
Balance of probabilities.
What are the four stages of disclosure?
(1) the investigation stage- the duty to record and retain material during the investigation;
(2) the initial duty of disclosure on the prosecution;
(3) defence disclosure; and
(4) the continuing duty on the prosecution to keep disclosure under review.
