Criminal Litigation - Trial (12) Flashcards
What is the burden of proof?
Burden of Proof: By default, the burden of proof lies with the prosecution, to prove guilt beyond reasonable doubt.
(1) Defence Evidential Burden: The defence has an evidential burden to raise any defences at court. This means to forward them - the prosecution has the burden of disproving them.
(2) Defence Legal Burden: In rare instances, the defence has the burden to prove certain defences on the balance of probabilities. These are: a) diminished responsibility manslaughter; b) insanity; c) duress; and d) automatism.
>If they do so, the prosecution can attempt to challenge beyond reasonable doubt.
What is pre-trial dismissal?
Pre-Trial Dismissal: The defence can apply to have the case dismissed before trial (if remitted to Crown Court), on the basis that the prosecution has failed to provide evidence for all elements of the offence (similar to no-case to answer).
What is the opening speech in the MC?
Opening Speech: Prosecution opens the trial by setting out the charge, identifying the points of law to prove, the burden of proof, a summary of facts and evidence, and the anticipated issues at trial. This is non-evidential.
What is the procedure for the prosecution case in the MC?
Prosecution Case: The Prosecution must then ensure the Defendant has a ‘case to answer’.
(1) Prosecution Evidence: Prosecution will raise evidence of guilt.
- Witnesses: Witnesses are examined on oath, cross-examined, and (sometimes) re-examined.
>Under-14s do not give evidence on oath.
- Witness Statements: Admissible witnesses statements are read out.
- Police Interview: Defendant’s police interview is summarised (or played out if requested by defence).
(2) Challenging Admissibility: Defence may challenge admissibility at any stage.
- Pre-Trial: More effective to challenge pre-trial, to avoid contaminating magistrates.
- Voir Dire: At trial, a voir dire (trial within trial) is held - the parties argue for or against admission.
- Defence Case: If admitted, defence can challenge cogency of evidence in its own case.
What is the procedure for no case to answer in the MC?
No Case to Answer: Following prosecution case, the defence can make a submission of no case to answer.
(1) Grounds: Case is dismissed if prosecution has not met its evidential burden (R v Galbraith). Either:
- No Evidence: Case lacks evidence required to prove an essential element of the charge.
- Poor Evidence: Essential evidence is ‘manifestly unreliable’, i.e. wholly discredited in cross-examination.
(2) Prospects of Success: Rarely successful. If there is any direct evidence capable of proving guilt, no matter how tenuous, there is a case to answer. If there is circumstantial evidence, such as an adverse inference, there is only no case to answer if the evidence alone cannot support a conviction in law (R v Sardar).
What is the procedure for the defence case in the MC?
Defence Case: Following the prosecution case, the defence will raise its case (if it has one), namely any defences relied on.
(1) Defendant Evidence: The Defendant cannot be compelled, but will generally give evidence to avoid adverse inferences being drawn (s3 CJPOA).
(2) Defence Witnesses: Other witnesses are called and examined. They cannot enter the court until after the Defendant has given evidence (s79 PACE).
What is the procedure for closing speeches in the MC?
Closing Speeches: Both parties have the right to make closing speeches at the end of the evidential stage.
(1) Prosecution: Prosecution will only make a speech in complex cases, to assist the court’s understanding.
(2) Defence: Defence will (almost) always make a closing speech, summing up the case favourably and concisely.
>This is after any prosecution speech - the Defendant has the last word.
What is the procedure for the verdict in the MC?
Verdict: The Magistrates retire and return to deliver a verdict, which passes by majority. The Defendant must stand.
(1) Guilty: If guilty, the court can sentence immediately or adjourn pending a pre-sentence report.
>If immediate, the defence will offer a plea in mitigation.
(2) Not Guilty: If not guilty, the defendant is discharged and free to go.
Who makes up the crown court?
Crown Court: Crown Court trials involve more elements, but follow a similar procedure.
(1) Judge: The Judge decides on points of law, directs the Jury, and determines sentence.
(2) Jury: The Jury decides on points of fact, and determines guilt.
What is the procedure for arraignment?
Crown Court
Arraignment: Prior to Jury entering, the defendant is given an opportunity to change plea to guilty for some or all offences. Alternatively, they may change a guilty plea to not guilty in writing (if they have misunderstood evidence).
What is the procedure for empanelment in the CC?
Empanelment: Empanelment is the process of swearing in the Jury.
(1) Selection: 12 members of the local area selected from a panel of 16.
- Eligibility: Must be aged 18-75, resident in the UK for 5 years, and on the electoral register.
- Ineligibility: Cannot be mentally incapable, on bail, or a former custodial convict (s1 Juries Act 1974).
(2) Plea Information: Jury is informed of not guilty pleas (but not guilty pleas).
What is the procedure for opening speech in the CC?
Opening Speech: Same as MC.
What is the procedure for the prosecution case in the CC?
Prosecution Case: Same as MC.
What is the procedure for no case to answer in CC?
No Case to Answer: Same as MC (in absence of Jury).
What is the procedure for defence case in the CC?
Defence Case: Same as MC.
(1) Multiple Defendants: Each defendant will take their case in the order their name appears on the indictment.
(2) Opening Speech: Defence can make an opening speech (but usually will not, to avoid contradicting witnesses).
