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Ella SQE > CLP 5 - Trial* > Flashcards

CLP 5 - Trial* Flashcards

1
Q

What is a Legal Burden as opposed to an Evidential Burden?

A

Requirement to prove an element of your case to the prescribed standard

  • Legal burden - standard for prosecution ‘beyond all reasonable doubt’ // standard for the defence ‘balance of probabilities’
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2
Q

What is an Evidential Burden as opposed to a Legal Burden?

A

Have to raise some evidence to satisfy the judge that the matter should be argued before the jury

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3
Q

Burden of proof in relation to duress

A

If sufficient evidence is raised to leave it as a live issue it is the prosecution who must disprove it beyond a reasonable doubt.

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4
Q

Burden of proof in relation to alibi

A

The Judge must direct the jury that although the defence have raised the defence, it is not a matter for them to prove.

The prosecution retain the burden of disproving the alibi beyond a reasonable doubt.

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5
Q

When do the defence have the legal burden? Name 4

A
  • Insanity
  • Diminished responsibility
  • Automatism
  • Loss of control

(DIAL)

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6
Q

When should a Turnbull direction be given?

A
  • The Defendant disputes the identification evidence; and
  • The case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.

NB: also applies in cases of alleged recognition.

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7
Q

What should the judge warn the jury of whenever the prosecution case against an accused depends wholly or substantially on the correctness of the IDs of the accused, and when D alleges the ID to be mistaken?

A

Of the special need for CAUTION before convicting the accused in reliance on the correctness of the identification

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8
Q

What are the elements of the special Turnbull warning?

A

The judge should:

  1. instruct the jury as to the reason for the need for such a warning.
    - explain mistaken witnesses can be convincing
  2. direct the jury to examine the circumstances in which the identification by each witness came to be made.
  3. remind the jury of any specific weaknesses in the identification evidence.
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9
Q

What else will the judge direct the jury to consider if there is any other evidence to support the correctness of the identification?

A
  1. Should identify to the jury the evidence capable of supporting the evidence of identification.
  2. Should say if there is any evidence or circumstances which the jury might consider to be supporting when it did not have this quality.
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10
Q

What if the ID evidence is poor and unsupported? Can the judge do anything after the prosecution case closes?

A

Judges are required to examine the state of identification evidence at the close of the prosecution case
AND
to stop the case if it is poor and unsupported

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11
Q

What are the considerations for the judge in a Turnbull style case?

A
  • What is the quality of the identification?
  • Is there other evidence to support the correctness of the identification?
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12
Q

What if the judge considers the visual identification in a Turnbull case to be poor?

A
  • 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.
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13
Q

What Turnbull factors assist with considering strengths & weaknesses of a case?

A

A - amount of time under observation
D - distance
V - visibility
O - obstruction
K - known or seen before
A - any reason to remember
T - time lapse
E - error or material discrepancy

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14
Q

Is dock identification allowed?

A

Trial judge retains a discretion to permit a dock identification.

In considering this, the judge will need to consider whether such a course of conduct will jeopardise the fairness of the accused’s trial.

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15
Q

What are the four key aspects to making an application to exclude a confession?

A
  • Advance notification
  • Timing
  • Voir dire
  • Submissions
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16
Q

Advance notification - standard case preparation time limits in a magistrates’ court

A
  • Defence skeleton argument in support at least 10 business days before trial
  • The prosecution response 5 business days after that
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17
Q

At what point in proceedings can an application to exclude a confession be made?

A

Crown Court:
- pre-trial hearing listed specifically for this purpose, OR
- just prior to opening the case to the jury (and in absence of jury).

MC:
- s 76 in MC should be dealt with as a preliminary issue.

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18
Q

Who hears the evidence in a Voir dire? What must be proven?

A

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.

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19
Q

Who can call their evidence in a Voir dire?

A

The prosecution must,

the defence can

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20
Q

Is the defendant present during a Voir dire?

A

Yes

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21
Q

Is the Jury present during a Voir dire?

A

No in the crown court (the judge may well be the same in the magistrates’ court)

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22
Q

What if the judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession?

A

Even where not specifically invited to do so, any resulting conviction is likely to be QUASHED

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23
Q

When is a Voir dire not required when considering whether to exclude a confession

A

If there is no dispute as to the facts

24
Q

What is the advance notification protocol in respect of excluding a confession in the Magistrate’s court?

A
  • Defence skeleton argument submitted 14 days before trial.
  • Prosecution response 7 days after that

NB: PTPH will usually give deadline for CC hearings.

25
Q

When the prosecution is on notice that the defence are challenging the admissibility of evidence, what must it not do?

A

Adduce that evidence before the court or to refer to it in an opening speech.

26
Q

When should s.76 applications be dealt with in the magistrates’ court?

A

As a preliminary issue

27
Q

When should a Voir dire be held in the Magistrates’ court?

A

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.

28
Q

At what point in proceedings should a Voir dire be held in the Crown Court?

A

Generally at the PTPH

29
Q

When is a Voir dire required in the Crown Court?

A

Where an application is made under s.76 and the evidence founding the application is under dispute.

30
Q

If the ruling was to exclude the confession, can the prosecution refer to it during the trial?

A

No

31
Q

If the ruling was that the confession is admissible, can the prosecution refer to it during the trial?

A

Prosecution can adduce it

Would NOT deprive a defendant of raising the same issues before a jury.

32
Q

What are the 3 types of judges that sit in the Crown Court? How are they referred to?

A
  • Circuit Judges (your honour)
  • Recorder (barristers and solicitors who sit part-time) (your honour)
  • High Court Judges (my lord/lady)
33
Q

What is the Role of the judge in the Crown Court? Name 4

A
  1. arbiter of law
  2. makes rulings about the admissibility of evidence
  3. directs the jury about matters of law
  4. can direct a jury to find a defendant not guilty
34
Q

Can the judge direct a jury to find a defendant guilty?

A

NO

35
Q

What is the role of the jury in the Crown Court? Name 4

A
  1. arbiter of facts
  2. decides whether the defendant is guilty
  3. must accept and apply the judge’s directions about the law.
  4. must reach its decision only based on the evidence it hears in court (must not discuss with anyone who has not heard it).
36
Q

Are legal arguments in the Crown Court heard before or after the Jury are sworn in?

A

Either

37
Q

How is Jury selection carried out?

A

16 people go into the court of which 12 are chosen.

The defendant has the right to object to any juror.

38
Q

How are legal applications made during the trial dealt with?

A

Jury will be asked to leave court while they are dealt with

39
Q

Submission of no case to answer - when can this take place and by whom? what does this involved? exception?

A

At the end of the prosecution evidence, on D’s application or on its own initiative,

the judge may direct the jury to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict,

but must not do so UNLESs the prosecutor has had an opportunity to make representations.

40
Q

Is the defendant required to give evidence at the Crown Court trial?

A

No, but failure to do so may result in adverse inference being drawn (s35)

If D does not, should be recorded in writing that D has received advice and decided freely not to testify.

41
Q

When does the defence have the right to make an opening speech?

A

Only if 1 or more defence witnesses (other than the defendant) will be called to give factual (as opposed to character) evidence.

42
Q

What happens after the defence case is closed in the Crown Court?

A

Legal discussions are held to consider any matters of law that have arisen.

43
Q

When can the prosecution make a closing speech in the Crown Court? 3 options

A
  1. If D is legally represented,

OR

  1. If the defence has called at least 1 defence witness (except D) to give factual (rather than just character) evidence,

OR

  1. the court permits

ALWAYS FIRST

44
Q

What are the two parts to a judges summing up in the Crown Court?

A
  • Summing up of the Law
  • Summing up of the facts
45
Q

What will the judge deal with in summing up the case to a jury?

A
  • burden and standard of proof
  • the ingredients of the offence and any defences
  • a written route to verdict
  • other legal directions relevant to the case
  • electing a foreman (will deliver verdict)
  • unanimity
  • separate considerations of counts and defendants if needed
46
Q

To assist the jury to focus on the issues during retirement, what should the judge provide?

A
  • a reminder of the issues;
  • a summary of the nature of the evidence relating to each issue;
  • a balanced account of the points raised by the parties; and
  • any outstanding directions.
47
Q

What 2 things will the judge tell the jury in relation to unanimity?

A
  1. Just before the jury bailiffs are sworn and the jury retire to consider their verdict, the jury will be told that they may have heard of majority verdicts, but the only verdict the judge can accept is a unanimous verdict.
  2. The judge will go on to say that if the time should come when a majority verdict can be accepted from them, the judge will call the jury back into court and give them a further direction.
48
Q

What is the minimum time a Jury must deliberate before a majority verdict can be given?

A

2 hours (though, in practice 2 hrs 10 mins)

49
Q

When should the Court accept a majority judgement?

A

After the minimum period has expired (2.10)

Should NOT be accepted UNLESS 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.

50
Q

Who does the jury inform when they have reached a verdict?

A

They will inform the jury bailiff

51
Q

What is the Crown Court Procedure?

A

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

52
Q

What sort of offence is a s.20 offence?

A

Eitherway

53
Q

When the defence has a burden of proof (for example insanity or diminished responsibility), what is the standard of proof

A

Balance of probabilities.

54
Q

What are the four stages of disclosure?

A

(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.

55
Q

Can the jury convict D of a lesser offence which is an alternative to a count on the indictment?

A

YES in certain circumstances

56
Q

What happens if D is found guilty - 2 options

A
  1. sentenced immediately

OR

  1. if reports are required to assist with sentencing, such as a pre-sentence report or a psychiatric report, the case will be adjourned for sentence to a later date.

Ella SQE (13 decks)

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