Trial Flashcards
What can refusal to take an oath or affirmation result in?
Refusal to take an oath or affirmation can be punished as a contempt of Court.
What form of questioning should be taken during examination in chief?
The questions should be non-leading. Evidence adduced from a leading question may be considered inadmissible or to carry less weight.
Leading questions may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.
What is a hostile witness?
If a witness is called to give evidence and gives an account inconsistent with their original statement to the point the judge forms the view the witness is not “desirous of telling the truth”, the party calling that witness may apply to the judge to treat them as hostile.
What are the main exceptions to the rule that the Court will not hear the evidence of an earlier consistent complaint or statement?
-Res gestae: a statement made as an immediate reaction to a crime being committed against the statement maker
-Suspect’s response to police allegation: these are admissible, whether confessional or self-serving denials of guilt
-Complaints: doctrine of ‘recent complaint’-this allows an earlier complaint to show consistency in complaining and to prove the truth of the complaint (s120 CJA 2003)
-Rebuttal of ‘recent fabrication’ allegation: a witness is allowed to negate a challenger that something they have said is fabricated by showing that an earlier statement was made to the same effect
What form of questioning should be taken during cross-examination?
Advocates may ask leading questions-Browne v Dunn (1893). Unless a witness’s account is challenged on a particular point, it is deemed to have been tacitly accepted.
Witnesses should generally only deal in facts-they should not be encouraged to give opinions unless they are on everyday matters.
How many jurors sit in a Crown Court jury?
12 people.
Who is the Crown Court clerk and what are they responsible for?
The Crown Court Clerk is:
-not legally qualified and never gives legal advice
-responsible for selecting and taking verdicts from the jury; and
-arraigning Ds
Who are the judges that sit in the Crown Court and how are they referred to?
The judges who sit in the Crown Court are:
Circuit Judges-referred to as ‘Your Honour’. They wear a violet and black robe and a red sash over their left shoulder.
Recorders-referred to as ‘Your Honour’. Recorders are barristers or solicitors who sit as part-time judges. They wear black robes.
High Court Judges-referred to as ‘My Lord, My Lady’. Wear red robes.
What is the role of the judge at trial?
The judge:
-is the arbiter of the law
-makes rulings about the admissibility of evidence
-directs the jury about matters of law
-can direct a jury to find a D not guilty, but cannot direct a jury to find a D guilty
What is the role of the jury at trial?
The jury:
-is the sole decider/arbiter of facts
-decides whether the D is guilty
-must accept and apply the judge’s directions about the law
-must reach its decision only based on the evidence it hears in Court
Outline legal arguments as the first step in the Crown Court trial.
These take place on the first day of trial. Legal arguments in the Crown Court can be heard before or after the jury is sworn.
Where a voir dire is required, this still takes place in the absence of the jury, since it is a procedure for the judge to resolve a factual dispute which is relevant to a legal argument.
Outline jury selection and swearing in the jury as a stage of a Crown Court trial.
12 jurors are required to start a Crown Court trial. A jury panel of about 16 people go to Court from which the 12 will be chosen at random.
When the jury box is full but before each juror takes the jury oath or affirmation, the D is told by the Court Clerk that they have the right to object to any juror, and then each member is sworn.
Outline the judge’s preliminary instructions as a stage of a Crown Court trial.
The judge will tell the jury that the evidence upon which they must decide the case is the evidence that will be presented to them in Court and they must not discuss it with anyone else.
The judge will also explain that matters of law are for the judge alone.
Outline the prosecution opening speech as a stage of a Crown Court trial.
This will be focused on the facts and issues in the case. The prosecutor will tell the jury what counts the D faces and should avoid the use of overly emotive language.
Outline the defence identifying matters in issue as a stage of a Crown Court trial.
To help the jury to understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are.
Outline the prosecution evidence as a stage of a Crown Court trial.
The prosecution case has been served on the defence at the outset of the proceedings.
The prosecution will start by calling all their witnesses that the defence asked to be called. The prosecutor will then take the witness through evidence in chief and the witness is then cross-examined by the D’s legal representative.
Outline submissions of no case to answer as a stage of a Crown Court trial.
At the end of the prosecution evidence, on the D 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.
Outline the defence opening speech as a stage of a Crown Court trial.
When the prosecution case has ended, the defence case will start.
The defence only have the right to make an opening speech but only if one or more witnesses, other than the D in person, will be called to give factual evidence.
The right to a defence opening speech is rarely used.
Outline the defence evidence as a stage of a Crown Court trial.
If the D is represented and the D chooses to give evidence, the defence advocate will call the D and take them through their evidence in chief.
The D will then be cross-examined by any other Ds and the prosecution.
Any other defence witnesses will be examined in chief, cross-examined and re-examined in the same order as the D.
Outline legal discussions as a stage of a Crown Court trial.
When the defence case is closed, it is common practice for the jury to be sent out in order to allow the judge and both advocates to consider those matters of law which should be raised during the judge’s summing up.
This is a convenient way of ensuring that any problems are ironed out prior to speeches and the summing up, thereby making an appeal less likely in the event of a conviction.
Outline closing speeches as a stage of a Crown Court trial.
The prosecution can make a closing speech where the D is legally represented, or has called at least one defence witness to give factual evidence, or where the Court otherwise so permits.
The prosecution closing speech is always first-the defence is always entitled to make a closing speech which follow that of the prosecution.
What will be included in the judge’s summing up?
In summing up the case to a jury, the judge will deal with the following:
-burden and standard of proof
-ingredients of the offence and any defences
-a written route to verdict
-other relevant legal directions
-electing a foreman
-unanimity
-separate considerations of counts and Ds if needed
When is a majority direction permitted?
Juries Act 1974 permits a majority verdict after the jury have deliberated for at least 2 hours although in practice the minimum period is 2 hours and 10 minutes as required in the Criminal Practice Direction VI Trial 26Q Majority Verdicts.
