Jury Trial Flashcards
What are the rules aorund presence of the accused at jury trial?
generally must be present throughout trial
present means physical and interpreted if needed
can only proceed in absence if satisfied that right to attend has been waived and trial will still be fair
judge should not deal with matters in absence of counsel for the D
what exceptions exist for rule that accused should be present
misbehaviour
absence voluntary
too ill to attend
death
how must judge ensure fair trial in rare circs that it proceeds in absence
highlight weaknesses of P case, make points on behalf of the accused, and inform jury that absence is not an admission of guilt
what are haywards guidelines on proceeding in absence
do not consider seriousness of offence
even if voluntarily absconded, generally desirable that accused is represented - proceed with great caution
what amounts to misbehaviour?
shouting out in dock or seeking to intimidate witnesses or jurors making it impracticable for hearing to continue
what happens when an accused is too ill to attend
may NOT proceed without consent or if case can be fairly presented
exceptions - can proceed for co-accused, vountary ingestion of drugs causing illness, counsel can continue effectively with written instruction
how should unrepresented Ds be supported
court to give approp assistance
where dismissed/withdrawn counsel/sols and entitled to LA adjourn to allow instruction
what must court do at close of pros case
inform D that time has come at which they may give/call evidence and consequences of not doing so (must advise if unrepresented)
what restrictions are placed on an unrepresented accused
cannot XX Complainant or child witness
advocate can be appointed to do this for them in certain circs
in what 2 circs can court stay a case for an abuse of process
impossible to give the accused fair trial
offends courts’ sense of justice/integrity of CJS
e.g unfair to proceed in cases of bad faith, unlawfulness or misconduct
what should be contained in the prosecution opening speech
issues in case, outline evidence
should not be emotive
submissions as to law only insofar as necessary - matter for judge in summing up
what is procedure for admitting statements under s9 CJA 1967?
serve on all parties, if objection withing 5 business day =s then cannot be read out in court
if D fail to object then court can require attendance for XX
where objected to court can exercise discretion to allow
what facts can be presented pursuant to s10 CJA 1967
facts agreed between all parties
what is the test in R V Galbraith
1 - if no evidence crime allege has been committed - judge will stop the case
2 - if evidence is tenuous must consider either
2a - judge concludes that taken at its’ highest, no jury properly directed could convict on one/all counts then should stop case
2b if judge concludes that weakness is for jury to decide and one possible reading of facts is that there is enough evidence, must be tried by jury
when can defence have an opening speech
where calling evidence of fact other than that of the accused and legal rep
what order should defence present witnesses in?
usually accused goes first
character references MUST come after
psych evidence immediately after accused/pros case
who decides whether accsed will give evidence
the Defendant acting on advice from legal rep (usually with signed declaration to such effect)
when may the court call a witness that neither party has called
where necessary in interests of jsutice - used sparingly
what is the purpose of the judge discussing relevant law prior to summing up
allow counsel for both parties to make submissions as to what direction should be given in absence of jury
to what extent to counsel have a duty to the court?
they must bring all relevant authorities to the attention of the court as well as noting an y procedural irregularity that may leave space for appeal - even if it goes against them
what may prosecution counsel not do in closing speech (where D represented and called no evidence)
emotive language
advance case beyond evidence provided
unjustified comments on D case
quesiton failure of spouse to give evidence
consequences of police officers being disbelieved
abandon or attack own witness
what should defence avoid in closing speech
advancing hypotheses beyond evidence
ask for mercy plea
can comment on accused failure to give evidence
can comment on co-accused failure to testify
what should summing up directions include
issues of law
- function of jury/judge
-burden and std of proof
-sep consideration of counts and Ds
-ingredients of offence (written route to verdict)
-defences - difficulty of being unrepresented if so
issues of fact
- comment upon evidence - some analysis
- overview of defence case (esp where no evidence given to extract from XX etc)
how should jury be directed at end of summing up
should be told to select a foreman
asked to retire to find unanimous verdict (can only enter majority after min of 2hrs 10 mins often/long enough for complexity of case whichever is longer)
what is method for jury to sk questions of judge once retired
note to jury bailiff who will take it to judge (dated and timed)
judge then calls legal reps and shares note
then calls jury in to court to answer
what majority combinations are acceptable
12 - 10-2, 11-1
11 - 10-1
10 - 9-1
9 not majority allowed - smallest poss jury size
if verdict is G - foreman must cite what ratio was
when may jury find accused guilty of lesser offenceq
where upon facts another offence which is expressly or implied included within charge before them (not murder)
charge normally an alt on the indictmentha
what verdicts can a jury return
guilty
not guilty
to each charge, to partial counts on one indictment, against 1 and not other accused etc
