Criminal Trials Flashcards
What sections of ACJA and ACJL Define Arraignment?
S.271 ACJA
S.211 ACJL
How is the charge read to the accused?
In a language he understands
Who reads the charge to the accused?
The Registrar of the court or an officer of the court
What does ACJA require when the charge is read?
Requires that the judge record the fact that he is satisfied that the defendant understands the charge read and explained to him
What does ACJL require when the charge is read?
Requires that the charge be read to the defendant in the presence of his legal practitioner
What is the consequence of failure to comply with any of the procedure for arraignment? Support your answer with a case
Renders the trial a nullity
Sunmabo v State
Can Counsel enter plea on behalf of the accused?
No, counsel can not enter plea on behalf of the accused or change his plea. It will render the trial a nullity
What are the ways in which a defendant may respond after charges are read and explained to him?
- He may remain mute
- Enter a preliminary objection
- Plead guilty
- Plead not guilty
- He may plead autre fois convict or autre fois acquit
What should the court do if the defendant remains mute?
They should investigate the reason for the muteness, this would involve a medical expert
What should the court do if failure to plead is malicious
They should enter a plea of ‘not guilty’ and proceed with trial
Gaji v State
What is the procedure for continuation of trial if it is shown that the accused is of sound mind to take plea?
A certificate from a medical expert must be given to the court to show the accused is competent to take the plea
R v Ogor
What is the effect of a defect in a charge?
Generally a defect in a charge will not be material unless the accused was misled by the defect
Where the defect is material it is on the accused to raise the objection as soon as the charge is read to him and before the plea is taken
He can’t raise the objection later or during trial because once you plead to a charge you submit to the jurisdiction of the court
Obakpolor v State
What does ACJA prohibit in relation to defects once trial starts
Section 221 ACJA prohibits any objections being raised about defects during proceedings or trials
What should the court do if the defendant pleads ‘not guilty’ to the offense charged but ‘guilty’ to another offence
Court will direct the prosecution to include the offence just admitted and fresh plea will be taken
What should the court do if the accused enters a plea or guilty?
- record the plea in as nearly the same words as the accused
- Invite the prosecution to state the facts of the case
- Ask the defendant if his plea of guilty is to the facts stated
- The court may convict and sentence him
What does the court require if the accused pleads guilty to an offense requiring scientific proof?
Court will ask the prosecution for expert witnesses to prove the offence
What is the consequence of not explaining the facts to the accused before convicting? - Case
The conviction may be reversed on appeal
Osuji v IG Police
What should the court do if the accused pleads guilty to commission of a capital offence?
Record a plea of not guilty
What happens if the judge who took the plea is elevated?
S.396(7) ACJA provides that where a judge of the high court is elevated to the Court of Appeal, he may continue to sit in the high court to finish an ongoing trial within reasonable time
What options are open to the court if the prosecution is absent
- They can dismiss the case
2. If a reasonable excuse is provided for the absence, the case may be adjourned
What action should court take if the defendant fails to attend court after being granted bail?
The court shall continue trial and convict him unless they see reason not to. Trial will only continue after two adjournments have been given
What is plea bargaining?
It is an agreement in a criminal trial in which a prosecutor and an accused persona arrange to settle the case against the accused usually in exchange for concessions.
What are the pre-conditions for entering into plea bargain?
- Evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt
- Defendant has agreed to return the proceeds of the crime or make restitution to victim or his representative
- In a case of conspiracy, the defendant has cooperated fully by providing relevant information for the successful prosecution of others.
When can the prosecutor enter a plea bargain with the defendant?
During or after the presentation of the evidence of the prosecution but before the presentation of the evidence of the defence
Who does the burden of proof lie on in criminal proceedings ?
s. 132 Evidence Act provides that the burden of proof in proceedings lies on the party who would fail if no evidence at all were given on either side.
- Prosecution, because s.36(5) CFRN states there is a presumption of innocence
What exceptions are there to the burden of proof lying on the prosecution?
i. Plea of intoxication or insanity
ii. Plea of autre fois acquit or fois convict
iii. Facts specifically within the knowledge of the accused
What is the standard of proof in criminal trials?
s.135 Evidence Act provides that the standard of proof at criminal trials is ‘proof beyond reasonable doubt’
What happens if the prosecution proves the commission of a crime beyond reasonable doubt?
The burden shifts to the defendant
S.135 (3) Evidence Act
What is the rule regarding admissibility of evidence?
The general rule is that relevant evidence is admissible at trial - S.1 Evidence Act
However
The court has the discretion to exclude improperly obtained evidence if in the opinion of the court, the desirability of admitting such evidence is outweighed by the undesirability
S.14 Evidence Act
Is ‘Hearsay Evidence’ admissible at trial?
The general rule is that hearsay evidence is not admissible except in certain exceptional circumstances
Section 38 Evidence Act
Is the opinion of any person admissible as evidence at trial?
The general rule is that the opinion of a person shall not be admissible as evidence at trial
Section 67 Evidence Act
However, in certain instances where the court has to form an opinion on a point of foreign law, customary law etc. then the opinion of a person specially skilled in that area will be admissible- expert witness
Section 68 Evidence Act
What is the pre-condition to an expert’s opinion being heard in court?
Must lay proper foundation
Would the wrongful inclusion or exclusion of evidence lead to a setting aside of the judgement reached by the court
This by itself shall not be a grounds for the reversal of the courts judgement
Except where it can be shown that such evidence would have affected the court’s decision
S251 Evidence Act
What is the general rule on corroboration
No particular number of witnesses are required to prove guilt
S200 Evidence Act
What instances would corroboration be required?
- Evidence of accomplices
- Evidence of tainted witness
- Unsworn evidence of a child
- Treason and Treasonable felonies
- Perjury
- Exceeding speed limit
- Sedition
Can the court admit the evidence of an accomplice
Yes, S.198 (1) Evidence Act states that an accomplice is a competent witness against the defendant and the court may convict on his uncorroborated testimony
However, court shall direct itself that this is unsafe?
What is the effect of the failure of the court to warn itself about convicting on the testimony of an accomplice?
The conviction will be set aside and the accused acquitted
Except the appellate court is of the view that no miscarriage of justice has been suffered
Bello v State, Wanchi v State
Can an accused be convicted based on his confessional statement
He can be convicted if the statement is made freely and voluntarily and is direct and positive as to the facts stated.
However, if the accused retracts his confession the court has advised that it is desirable to look for corroboration
Onochie v Republic
Can the confessional statement of a defendant be used against a co-defendant
General rule is that a confessional statement is admissible against the maker only
However, it may be used against the co-defendant who adopts such statement by words or conduct. - S.29(4) Evidence Act
Where the co-accused is acting as a witness for the prosecution and repeats the statement on oath
Mbang v State
Can a confessional statement be used against a defendant if it was obtained through deception or if made while drunk?
As long as evidence is relevant it will not be rendered inadmissible
S.1 Evidence Act , S.31 Evidence Act
Who is a tainted witness?
A person who is either an accomplice or who on the evidence may be regarded a shaving some purpose of his or her own to serve
Moses v State
How should the court treat a tainted witness?
Court should treat such evidence with caution an it should require corroboration
When can a child under the age of 14 testify?
When he possesses sufficient intelligence
Understands the duty of speaking the truth
Section 209(1) Evidence Act
How will the court determine a child’s readiness/ability to testify?
The court will ask him basic questions unrelated to the matter and if he is able to understand those, the court will determine if he understand the implication of an oath
Daggaya v State
Daggaya v State
How the court determines a child’s readiness/ability to testify
What sorts of documentary evidence is there?
Public document
Private Document
Primary evidence (originals) S86 EA
Secondary evidence - copies S87
How are documents proved at trial?
By primary evidence except in certain cases where secondary evidence may be given as proof .
Section 88 Evidence Act`
What are the conditions for computer generated evidence?
Section 84(2) EA
- Document was produced by computer during period over which the computer was REGULARLY USED to store and process information
- That over that period, INFORMATION OF THAT KIND WAS SUPPLIED to the computer in the ordinary course of its activities
- That over that period, the COMPUTER WAS OPERATING PROPERLY and even if it malfunctioned, the malfunction did not affect the production of the document or the accuracy of its contents
- That the information contained in the statement is DERIVED FROM THE INFORMATION ORDINARILY SUPPLIED TO THE COMPUTER
How should plea be taken when an accused is facing more than one trial?
Each count of offence shall be read to him separately and he takes his plea individually for each
Ayinde v State
What should the court do if muteness of a defendant is as a result of a visitation of God?
The trial will be postponed and the court will order that the accused be detained in the asylum
What order is made by the court upon discharge of a defendant on a plea of not guilty by reason of insanity?
That the accused be detained at the pleasure of the Governor
Karimu v State
What is the consequence of an ambiguous plea?
Aremu v COP
Court cannot convict on such plea
What must the accused establish before the court to successfully plead autre fois acquit or autre foes convict?
- First trial must have been on a criminal charge
- Trial must have been before a court of competent jurisdiction
- Trial must be for the same offence or for an offence having the same ingredients as the previous offence
- It must have ended in a conviction or acquittal and not a mere discharge
Must the accused be present at every sitting of the court?
There can be no trial in the absence of the accused.
Adeoye v State
When can the court dispense with the presence of the accused at trial?
See right to be present at trail
What options are open to the court if the defendant is absent?
- Court may issue a bench warrant
2. If the process has not been served, the court shall adjourn hearing of the case
What options are available to court if both parties are absent?
The court shall make such order as the justice of the case requires
What should the court do if counsel to the defendant is absent?
- Enquire from D if he wishes to engage another counsel or needs legal aid
- Court should allow the defendant to make his own arrangement if he indicates to do so
- Where D is unable to do so, court shall have the power to order he be represented by way of legal aid
Where is plea bargaining provided for under Nigerian laws?
Section 270 ACJA
Section 75 ACJL
When can the AG enter into a plea bargain?
If it would be in the interest of justice and in order to prevent the abuse of legal process.
Is evidence of good character admissible at a criminal trial?
Yes
Section 81 Evidence Act
Is evidence of bad character admissible at criminal trials?
Generally, bad character evidence is inadmissible.
However, it shall be admissible where the bad character of the defendant is a fact in issue and where the defendant has given evidence of his good character
Section 82 Evidence Act`
How can previous conviction be provided at trial?
- Certificate of Conviction signed by the Registrar of the Court
- Certificate of Conviction signed by the Clerk of the Customary Court
3.Certificate signed by the Directors of prisons (must state the offence, date and sentence) - Certificate signed by the Directors of prisons or Central Registrar of Criminal records showing that the finger prints of D are the same as the finger prints of a person previously convicted.
Section 248 & 250 Evidence Act
What is the section of the evidence act that talks about Competence?
Section 175 (1) Evidence Act
All persons are competent to testify unless the court considered that they are prevented from understanding the questions put to them by reason of tender years, old age, disease of the body/mind, or any cause of the same kind
Who cannot be COMPELLED to give evidence?
- The President and Governors (S308 CFRN)
- Aliens & Diplomats (S1 DIPA) - extends to their family members
- Accused person
- Judge or Justice
When can an accused testify against co-accused?
Generally, accused is not a competent witness for the prosecution but he is for the defence (Section 180 Evidence Act)
But he can testify against the co-accused where he has pleaded guilty and been convicted before being called by the prosecution
Umole v IGP
When is a spouse in a valid marriage a competent and compellable witness?
When s/he is a witness for the defence.
S/he is compellable for the prosecution in respect of: S182 EA
- sexual offences
- offences against property of spouse
- offences involving violence against the spouse
Can a person of unsound mind testify?
A person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions and giving rational answers.
Section 175 Evidence Act
Can counsel testify on behalf of his client?
He is competent but ought to withdraw as counsel if likely to be a witness
Elbanjo v Tijani`
Is a judge/justice a compellable?
No justice or judge before whom a proceeding is held can be compelled to answer questions as to his conduct or anything which came to his knowledge while acting in the capacity
Section 188 Evidence Act
What are the methods for securing attendance of a witness?
- Witness summons
- Subpoena
- Warrant
What are the different types of subpoena and what are they used for?
- Subpoena ad testifcandum -
- Subpoena duces tecum
- Subpoena ad testificandum et duces tecum
What caution is administer to a witness before he gives evidence on both?
You _____ are hereby cautioned that if you tell a lie in your testimony in this proceeding, or wilfully mislead this court, you are liable to be prosecuted and if found guilty, you will be seriously dealt with according to the law
Outline in no more than 7 questions how you would have your witness adopt his written statement on oath in court
- Please state your name, occupation and address to the court
- On the ______ do you recall making a statement in relation to this matter
- If you are given this statement would you recognise it?
- How would you recognise it?
- My Lord, permission to show the witness the document
- Do you remember making this statement?
- What do you want the court to do with this statement?
What are some o the headings for columns in a trial plan?
- charge
- Law
- Evidence
- penalty
- Prayer
- Remarks
What are some of the content of an opening address?
- Allegations against the defendant
- Laws contravened
- Evidence to prove contravention
- Witnesses to be called
- Approximate time it would take to complete the case for the prosecution
What is the consequence for refusing to take oath?
Under the CPL it is punishable by 8 days imprisonment
Under the ACJA and ACJL it is an offence
Section 205 Evidence Act
Oral evidence must be given upon oath or affirmation
Is oath taking compulsory?
Under the CPCL oath taking is not compulsory so refusal cannot be punished BUT the judge must record this fact in the record book.
What is the procedure for taking oath?
Christians - Bible
Muslims - Quran
Traditionalists - Objects of worship
How do you administer the oath?
I ______ do solemnly swear that the evidence I shall give in this case, before this honourable court, shall be the truth, the whole truth and nothing but the truth, so help me God
What happens after oath is administered?
Registrar will make announcement that any other witness who hasn’t given evidence yet should leave the court
What is the consequence of a witness failing to leave the court?
His evidence is not automatically inadmissible, but it would be attached lesser weight by the court
Falaju v Amosu
What is the purpose of examination in chief?
To elicit relevant and material evidence from the witness that is needed to prove the case of the party who called him
What is the purpose of cross-examination?
To contradict, destroy, discredit, weaken or qualify the case of the opponent
What is the purpose of re-examination?
To clear ambiguities to arise from cross-examination
What sorts of questions can be asked during Examination in Chief?
Questions that relate to relevant facts
Section 215(2) Evidence Act
What sort of question can you ask in cross examination?/Is the sky the limit in cross examination?
All kinds of questions can be asked during cross examination except for questions which the court considers to be indecent or scandalous
or which is intended to insult or annoy or is needlessly offensive.
Section 227 & 228 Evidence Act
When can leading questions be asked in Examination in Chief?
- When it relates to introductory matters
- Where the facts are undisputed
- In relationship not matters which have already been sufficiently proved
- With leave of court
Section 221 Evidence Act
Can a new matter be introduced in re-examination?
Generally, a new matter cannot be introduced in re-examination as re-examination is typically for clearing ambiguities however, new matters may be introduced with leave of court and where this occurs, the adverse party may further cross examination on that matter
Section 215 Evidence Act
Who is a hostile witness?
Witness who in the opinion of the court is biased against the examining party or who is unwilling to testify
Who can declare witness hostile?
The court upon application by counsel
What is the position of the law on a witness refreshing memory?
A witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned
Section 239 Evidence Act
Can the court put questions to a witness?
Yes the court may put questions to clarify points which may be obscure from the evidence given by a witness
Section 246 Evidence Act
What happens after the prosecution has given their evidence?
The court will determine whether or not the prosecution has made out a prima facie case
What happens if the court rules that a prima face case has not been made?
The accused is discharged
What can counsel to the defendant do after the prosecution closes its case?
Counsel may make a no case submission
What is a no case submission?
Application made by the defence to the effect that there is no evidence on which the court can convict (i.e. he failed to discharge the burden of proof)
Subaru v State
What are the conditions for a no case submission to succeed?
- The prosecution has failed to prove the ingredients of the offence
- The evidence adduced by the prosecution has been thoroughly discredited by cross-examination
- The evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal will convict on it
What is the effect of a discharge upon a submission of a no case to answer?
In most courts, it is a discharge on the merit and therefore constitutes an acquittal
However, in the Magistrate Court in the North, it amounts to mere discharge Section 159(3) CPCL
If the court overrules a no case submission what should be the manner of its ruling?
The ruling of the court should be brief and should refrain from expressing opinion on evidence adduced, and the court must not fetter its discretion
HOWEVER
Inordinate length of ruling alone is not sufficient ground to show that the court has fettered its discretion
Ekanem v R
What options are open to the defence if his no case submission is overruled?
- He may rest his case on that of the prosecution
2. He may enter upon his defence
What is the effect of the accused being convicted on incriminating evidence adduced by the defence after the court wrongly overrules a no case submission?
Such a conviction will be a nullity
Mumuni v State
What is the ex -improviso rule?
The prosecution may with leave of the court call or recall witnesses to rebut the evidence of the defendant where matters have arisen which by human ingenuity are not within the contemplation of the prosecution.
Section 289 CPL, Bala v COP
What does locus in quo mean?
The scene of the event
On what basis will the court visit the locus in quo?
The court may visit if such visit is material for the proper determination of the question in dispute
Can be requested by either party or the court suo moto
What is the procedure for visit to locus in quo?
- The court may adjourn, proceed to the locus and continue proceedings there
OR - The court may adjourn, proceed to the locus for inspecting, subsequently, continue in court to hear evidence.
Section 127(2) Evidence Act
What is the effect of non-compliance with the procedure for visits to locus in quo
Mere non-compliance will not nullify proceeding
What is the effect of the accused being convicted on incriminating evidence adduced by the defence after the court wrongly overrules a no case submission?
Such a conviction will be a nullity
Mumuni v State
What is the ex -improviso rule?
The prosecution may with leave of the court call or recall witnesses to rebut the evidence of the defendant where matters have arisen which by human ingenuity are not within the contemplation of the prosecution.
Section 289 CPL, Bala v COP
What does locus in quo mean?
The scene of the event
On what basis will the court visit the locus in quo?
The court may visit if such visit is material for the proper determination of the question in dispute
Can be requested by either party or the court suo moto
What is the procedure for visit to locus in quo?
- The court may adjourn, proceed to the locus and continue proceedings there
OR - The court may adjourn, proceed to the locus for inspecting, subsequently, continue in court to hear evidence.
Section 127(2) Evidence Act
What is the effect of non-compliance with the procedure for visits to locus in quo
Mere non-compliance will not nullify proceedings, except the accused can show that he suffered a miscarriage of justice
Unipetrol Plc v Adireje
What options are available to the defendant when opening his defence?
- Remain in the dock and make unsworn statement. (Can’t be cross examined)
- Sworn evidence in the witness box
- May remain silent
What is the implication of defence choosing to remain silent?
He is resting his case on that of the prosecution AND that whatever th prosecution has adduced is insufficient to prove their case beyond reasonable doubt
Can the court comment on the defendant’s decision to remain silent?
Yes both the court and prosecution can comment BUT they CANNOT suggest guilt from the failure of the accused to give evidence, only draw inferences
Section 181 Evidence Act
State how you lay proper foundation for tendering an expert’s witness?
- What role did you play in respect of the incident?
- Briefly explain how your investigations were conducted
- What were your findings?
- Did you prepare a report? How would you identify the report?
State how you will lay proper foundation for tendering secondary evidence
- Do you have the _____ in court?
- Where is the original document?
- Since you do not have the original document, what do you have?
- Is it an accurate replica of the original?
- If you see the copy, would you recognise it?
- How would you recognise it?
