Jury Trial Procedure

Question 1

What’s general principle that an accused should be present throughout the trial?

Answer 1

General rule = court must not proceed in D’s absence (must plead), UNLESS:

(1) D has waived right to attend, and
(2) the trial will still be fair despite his absence

Question 2

A is misbehaving - unruly behaviour in dock, attempting to intimidate jurors/Ws, refusing to be brought to court from cells. What should judge do before barring A from Court?

Answer 2

(1) warn him

(2) allow him to return to dock later if he undertakes not to repeat behaviour

(3) dissuade by threatening to hold him guilty of contempt in face of court

(4) allow him time to cool off, then continue in his presence

*A should not be handcuffed in dock unless real risk of violence or escape, & no alternative to visible restraint

Question 3

A has voluntarily absented himself from court (escaping from custody, FTS after bail, voluntary intoxication rendering A incapable of participation). What are the court’s considerations?

Answer 3

• Exercise discretion based on an assessment of fairness by considering whether:

(a) A had A had deliberately absented himself, and
(b) there were reasonable steps that could be taken to secure his attendance

Question 4

On voluntary absence, court decided not to proceed. What happens here?

Answer 4

• If decide not to proceed, can discharge jury from giving a verdict, thus allowing a retrial before a different jury once A’s presence secured
• Whether or not case proceeds, judge will almost certainly issue AW
• If convicted, sentence may be passed in A’s absence

Question 5

Where A’s absence is for reasons beyond his control, should the trial continue?

Answer 5

The trial MAY not continue in his absence, unless:

(1) A consents
(2) A’s case can be fully presented, including A’s own written evidence without fairness

Question 6

If A becomes ill during trial, judge must either?

Answer 6

(1) adjourn the case until he recovers, or

(2) discharge the jury

Question 7

If court doesn’t A is absent because of illness? There’s 3 exceptions here

Answer 7

Should provide opportunity for further evidence to be provided before continuing trial in absence & must always have regard to fairness

Possible exceptions:
(1) if several As & one becomes sick = trial may continue in sick A’s absence so long as evidence/proceedings relate entirely to cases against the remaining co-As (i.e. do not bear on sick A’s case)

(2) if A voluntary ingests drugs precluding his participation

(3) where A sick (heart condition), but his reps can argue his case effectively + A given opportunity to give written evidence

Question 8

What is the primary principle must be considered in the when exercising discretion whether to proceed in A’s absence?

Answer 8

Fairness (primarily to D, but also to P) = primary importance

Question 9

When exercising discretion whether to proceed in A’s absence, fairness is of primary importance but the Court must also consider (+11)?

Answer 9

(1) nature & circumstances of A’s behaviour in being absent / disrupting trial’s continuation (i.e. whether deliberate/voluntary; if so = ‘plainly’ waiver)

(2) whether adjournment may result in A being caught/attending voluntarily / not disrupting proceedings

(3) likely length of any such adjournment

(4) whether A (though absent) is/wants to be legally represented, or has waived right to representation

(5) extent to which A’s legal representatives can present his defence

(6) extent of disadvantage to A in not being able to give his account

(7) risk of jury reaching improper conclusion about A’s absence

(8) seriousness of offence to A, V & general public
* But NB has elsewhere been said that the same principles apply whether alleged offence is serious or minor (= seriousness should not be considered)

(9) general PI & particular interest of Vs & Ws that trial should occur within a reasonable time of relevant events

(10) effect of delay on the memories of Ws

(11) if more than one A (and some are present) = the undesirability of separate trials, & prospects of a fair trial for the Ds present

Question 10

Court should only proceed in A’s absence where unavoidable – where judge does so, & A is unrepresented, what reasonable steps must the judge take to ensure fair trial?

Answer 10

1) Expose weaknesses himself in P case & make such points on behalf of A as the evidence permits (both during evidence & summing up)

2) In summing-up, must warn jury that absence = not admission of G & adds nothing to P case

Question 11

What’s the rule of practice for unrepresented As?

Answer 11

Rule of practice = court will give A such assistance in conducting defence as may seem appropriate

If A dismisses lawyers during trial (or they withdraw), & A still entitled to public funding = judge may grant adjournment for A to be represented (though no requirement to do so)

Question 12

Does the court remind As of their right to give/ call evidence?

Answer 12

At end of P case, A should always be told by court of his right:

(1) to give evidence himself,
(2) to call Ws to his defence, or
(3) to stay silent & call no evidence (but that jury can draw such inferences as they see proper)

NB: Failure to do so may lead to conviction being quashed

Question 13

Is A-in person restricted in XX?

Answer 13

Yes, in some cases

of complainants/child Ws re: certain offences and can be appointed reps for XX on A’s behalf.

Question 14

The general rule is that once an indictment has been preferred, A must be there. However, there’s 5 exceptions - which are?

Answer 14

(1) indictment is defective (e.g. counts improperly joined)

(2) autrefois acquit/convict – ‘plea in bar’

(3) nolle prosequi (indefinite adjournment)

(4) indictment discloses no offence that court has jurisdiction to try

(5) it would be an abuse of process to continue with P (= can order a stay)

Question 15

What’s the effect of a stay?

Answer 15

Case stopped permanently

• Only in exceptional cases would stay be lifted (e.g. new allegations to be tried) — i.e. where interests of justice no longer require proceedings to be stayed

Question 16

What are the two categories of case in which court has power to stay for abuse of process?

Answer 16

(1) Impossible for A to receive a fair trial (focus on trial process)
- Focus not on P’s failures per se (cf below); but on whether they have the effect of depriving D of a fair trial

-If true →
· Stay will be granted
· Without more — no balancing of competing interests

(2) Would otherwise be unfair for A to be tried (concerns integrity of CJ system: A should not stand trial, irrespective of potential fairness of trial itself)

• E.g., cases where has been bad faith, unlawfulness or executive misconduct (i.e. simply that judge thinks prosecution should not have been brought as a matter of policy = not an abuse of process)

If true →
- Stay granted if, in all the circs, a trial:
(1) will offend court’s sense of justice & propriety, or
(2) will undermine public confidence in the criminal justice system & bring it into disrepute
- 1) Involves a balancing of competing interests and 2) integrity of criminal justice system & PI that those accused of offences are tried

Question 17

In CC, is there a need to enter plea?

Answer 17

No, because plea was entered at PTPH

Question 18

What’s the first procedural step in a jury trial?

Answer 18

(1) Jury selected & sworn in
- Clerk reads out indictment & tells jury they must decide guilt

Question 19

During P’s opening speech, what does P has to identify/ provide? What are the restrictions and presumptions here?

Answer 19

In opening speech, P:
(1) identifies the issues in the case, and

(2) provides a concise outline of the evidence which P proposes to call

Restrictions:

(1) emotive language liable to prejudice jury against A

(2) though extent to which P deals w/ points of law is a matter for discretion, presumption should be that P does not address the law – except:
(a) in circumstances of real complication & difficulty where counsel believes + trial judge agrees jury may be assisted
(b) but, if so, usual for P to remind jury that matters of law = ultimately for the judge

Question 20

Can the judge invite D to concisely identify what’s in issue after P’s opening speech?

Answer 20

Yes, if necessary to assist the jury

Question 21

After P’s opening statement, P calls for evidence. Does P has discretion not to call a W on back of indictment?

Answer 21

No

P has discretion not to call a W whose statements were served as part of P’s case (‘Ws on back of indictment’)

• must not be exercised as to surprise/prejudice D
• as a matter of practice, statements of all Ws whose statements have been served should be called / read

Question 22

Written statements (CJA 1967, s 9) may be used when P wishes to adduce what evidence?

Answer 22

(1) additional to that served when case was sent, or
(2) by way of a notice of additional evidence thereafter

Question 23

The party proposing to tender service written statements (CJA 1967, s 9) must serve on each party. Is this admissible?

Answer 23

Yes, if both parties agree will be admissible

• Any party may serve notice of objection within 5 business days
• If any objection, the statement cannot be read at trial

*NB: even if statement admissible, court may still require maker to give oral evidence if D disputes content of the statement, but through oversight failed to object

Question 24

What are admissions (CJA 1967, s 10) ?

Answer 24

Agreed facts admitted by all parties to be true — should be reduced to writing & provided to jury

Question 25

What’s the standard procedure for D objections to admissibility of P’s evidence?

Answer 25

(1) D notifies P of objection; OR further/alternatively D counsel informs P counsel of objection before P opening speech

(2) P makes no mention of disputed evidence to jury in opening speech

(3) When time comes to consider admissibility = jury will withdraw for judge to determine issue alone

(4) If admissibility issue raises collateral factual issues as to how it was obtained (e.g. re: confession)

→ may be necessary to hold a voir dire
= ‘trial within a trial’ where evidence adduced about those facts before judge in absence of jury
- Ws testify on a special form of oath
- P & D can call Ws, but evidence should be limited to matters relevant to admissibility of disputed evidence

(5) Voir dire or not, parties make representations to judge about admissibility

(6) Judge announces findings on any factual issues (if voir dire) & rules on admissibility issue

(7) Jury return to court
- If judge ruled inadmissible →
Jury will know nothing about it

• If judge ruled admissible →
  D can still XX P Ws on matters they raised on voir dire, but the XX now goes to the weight that jury should attach to the disputed evidence, not to its admissibility

(8) Judge retains discretion to review decision on admissibility at a later stage

Question 26

There an issue as to the admissibility of evidence, which raises collateral factual issues as to how is was obtained (e.g. re: confession). How is this settled?

Answer 26

It may be necessary to hold a voir dire

• this is a trial within a trial where evidence is adduced about those facts before a judge in the absence of a jury
• Ws testify on a special form of oath
• P & D can call Ws, but evidence should be limited to matters

Question 27

When is the editing of prosecution evidence needed?

Answer 27

If P evidence foreshadowed in the statements P relies on contains material of such prejudicial effect that jury clearly ought not to hear it = parties ‘edit’ the evidence by agreement before it is called

• First, evidence appears ‘unvarnished’ in the committal statements
• Then, counsel confer at trial to ensure editing done correctly and if necessary, judge can help

Question 28

What are the 3 options on treatment of statements containing unduly prejudicial/inadmissible material?

Answer 28

(1) Composite statement to replace several earlier statements made by a W

(2) Completely fresh statement prepared for a W to sign, omitting those parts inadmissible / prejudicial

(3) Original statement tendered to court, but copies served on D & provided to court have passages on which P do not propose to rely bracketed/lightly struck out

Question 29

D submits no case to answer and and P responds. What’s the test used in this situation?

Answer 29

Galbraith

(1) No evidence that the crime alleged has been committed by D
- No difficulty – judge will stop the case

Examples:
(a) Essential P W fails to come up to proof
(b) No direct evidence as to an element of the offence, & inferences which P ask court to draw from circumstantial evidence are inferences which no reasonable jury could properly draw

NB: judges should here take care to avoid taking into account D evidence yet to be called & potential defences not yet been made out

(2) Some evidence, but of tenuous character (e.g. inherently weak/vague, or inconsistent w/ other evidence)
- Judge must assess quality & reliability of evidence — i.e. whether too inherently weak / vague for any sensible person to rely on it

E.g. W undermines own testimony by conceding uncertainty about vital points / what W says is manifestly contrary to reason

For 2) Test = whether P evidence is such that, taken at its highest, a jury properly directed cannot properly convict on it
- If on one possible view of facts there is evidence upon which a jury could properly convict; or strength/weakness of P case depends on differing views as to credibility of a W = should leave case to jury

• Court should not consider issues of credibility / reliability except in the clearest cases
• ‘Taking P case at highest’ does not mean ‘taking out plums and leaving duff behind’ – must assess strength/weaknesses of evidence as a whole - If no, must stop case and acquit

Question 30

If D only intends to call evidence of fact other than/addition to evidence of A and character Ws - is there a need for an opening speech?

Answer 30

No no need for opening speech

Question 31

In D’s opening speech, D may?

Answer 31

(1) outline anticipated D case, and
(2) criticise the evidence already given by P

*should not make assertions of fact not to be proved by evidence to come

Question 32

D Ws are governed by same rules & considerations as P Ws - with some limitations. What are they?

Answer 32

Duty of court to stop evidence being given where:

(1) irrelevant to issues in case, or
(2) court being used as a political sounding board

Question 33

D is never obliged to call evidence or A [who is not compellable] - is this statement true?

Answer 33

Yes

Question 34

What’s the order of D’s evidence?

Answer 34

1) Normally, A should be called first
- But court has discretion, e.g. to allow a W whose evidence not disputed to testify out of normal order if circs make this convenient

(2) Psychiatric expert evidence related to A
- Must follow after P’s evidence of offence, & any evidence from A
(3) Character witnesses
- Must always be called after A, unless there are other factual Ws

*Ws must wait to give evidence outside courtroom unless party or expert W

Question 35

A decides whether or not to testify - This decision must be recorded and signed clearly indicating?

Answer 35

(a) he has voluntarily decided not to give evidence, and

(b) he has done so bearing in mind advice from counsel

*Failure to advise A properly about advisability of testifying may constitute grounds for unsafe conviction

Question 36

Does the judge has discretion to recall/call W whom neither P nor D chose to call?

Answer 36

Yes, but this power should be exercised only when necessary in interests of justice

Question 37

When discussing relevant law, before closing speeches, P & D counsel under duty to assist the court. What must they bring to the court’s attention?

Answer 37

(1) all relevant authorities, even unfavourable

(2) any procedural irregularity (e.g. juror speaking to W)

Question 38

Both P & D have a right to closing speeches to?

Answer 38

(1) sum up their case
(2) criticise opponent’s case
(3) comment on the evidence

*If judge must intervene for clarification/correction, should wait to a break

*P always goes first

Question 39

What are the Limitations as to content of closing speeches?

Answer 39

1) No allusions to facts/matters that were not the subject of evidence

2) Jury should not be invited to add a recommendation of mercy if G verdict

3)No personal criticism of opponent advocate

Question 40

Prosecution counsel — in closing, must not:

Answer 40

(1) use emotive & unjustified comments on D case, insinuate additional unadduced incriminating material, improperly vouch for soundness of P case

(2) comment to jury on potentially serious consequences to POs of their evidence being disbelieved

(3) abandon/attack credit of own W (unless hostile) or invite inferences contrary to evidence called

(4) comment on failure of A’s spouse/civil partner to give evidence

Question 41

Prosecution counsel — in closing, can comment on?

Answer 41

(1) failure of A to answer Qs in interview

(2) failure of A to give evidence

(3) failure of A to serve a defence statement / divergence between that statement and his evidence

Question 42

Defence counsel in closing, can and cannot comment on?

Answer 42

Can:
(1) Not confined to putting forward A’s version of events
- May advance hypotheses that go beyond this, provided evidence has been called which supports the hypotheses

(2) Entitled to comment upon A’s failure to give evidence

(3) Where a co-A’s defence conflicts with A’s, whom counsel represents = entitled to comment upon the co-A not entering the W-box

• But judge may make comment on this if he believes to be unfair

Cannot:

(1) Should not refer to likely consequences of a conviction in terms of punishment (= jury not concerned w/ sentence)

Question 43

There’s 2 parts to summing up (these may be split). What are they?

Answer 43

(1) direction on the law (before speeches)

(2) summary of the evidence (after speeches)

• Should not start a summing-up late or just before weekend

If judge doesn’t provide SU in writing = both counsel should take full notes (as may avoid delay of waiting for transcript & so expedite an appeal)

Question 44

What are the duties of both P & D counsel during Summing up?

Answer 44

• Attend carefully & draw any possible errors of fact / law to judge’s attention at its close — dismissal of D’s appeal not automatic where, however, he fails to correct an error
• Before SU, alert judge to evidence on which jury could find provocation &, if judge agrees, remind him to leave the remaining issues to the jury

Question 45

What are the duties of D counsel during Summing up?

Answer 45

• Must request a good character direction if A entitled (rather than complain later if one not given)

Question 46

What’s the written route to veridic?

Answer 46

‘written route to verdict’ - Judge should provide jury w/ written Qs, legal directions / other material to assist them in their task

• But judge should first submit to counsel for suggestions, & so they can base their closing speeches on the issues raised in the proposed directions
• Counsel’s failure to comment on draft directions may lessen weight of submissions of deficiency in any appeal based on misdirection
• Jury should be given the written list at start of summing-up

Question 47

What are the standard directions during Summing Up?

Answer 47

Judge must provide standard directions as to:

(1) Respective functions of judge / jury (tribunal of law / fact)

(2) Burden & standard of proof
- If no direction on this = conviction liable to be quashed

(3) Separate consideration of each count & co-D
- Judge should thus summarise evidence on a count-by-count basis (not W-by-W)
+ as to whether/how evidence relating to count 1 is admissible in re: count 2, etc

(4) Elements of the offence (or at least those elements in issue)

(5) Jury’s entitlement to draw such inferences as they deem proper from A’s silence in interview / failure to give evidence
- Identify significant facts relied on (in re: which an inference may be drawn)
- Remind jury of any reason for silence advanced by A
Limitations:
· (a) no inferences should be drawn from silence in interview of an A who does not give/call evidence & has not advanced a positive case
· (b) where A’s account changed between interview & trial, comment could be made on it without need for a formal (s 34) direction

Question 48

During summing up, the judge must give directions as the jury’s entitlement to draw inferences from silence in interview / failure to give evidence. What are the limitations of this jury direction?

Answer 48

Limitations:
(1) no inferences should be drawn from silence in interview of an A who does not give/call evidence & has not advanced a positive case

(2) where A’s account changed between interview & trial, comment could be made on it without need for a formal (s 34) direction

Judge should also:

• Identify significant facts relied on (in re: which an inference may be drawn)
• Remind jury of any reason for silence advanced by A

Question 49

As to what defences must the judge give jury directions?

Answer 49

(1) self-defence
(2) alibi
(3) loss of control
(4) diminished responsibility

If A unrepresented = judge also obliged to remind jury to bear this difficulty in mind

Question 50

On summing up judge must provide a review of the facts and key issues. What’s the difference between directions of simple and complex cases?

Answer 50

Analysis involved
Simple cases → ok to sum up facts by reading out abbreviated version of judge’s note of evidence

Any complexity → judges must analyse evidence & relate it to issues raised

Judge should identify + give overview of D case
(1) Where A has given evidence → Summarise the evidence

(2) Where A has given evidence & answered Qs in interview →
- May be appropriate to draw attention to consistencies/inconsistencies

(3) When A is interviewed at length but does not give evidence → Decide how, fairly & conveniently, to place interview before jury

(4) When A has done neither → Remind jury of counsel’s speech

Question 51

Judicious judicial comments, judge must state matters ‘clearly, impartially & logically’ (not indulge in sarcasm/extravagant comment). What’s the limitation?

Answer 51

Limitation: If emphasised to jury that they can ignore opinions — judge can comment on evidence + indicate own views, so long as not so critical as effectively to withdraw the issue of G/innocence from jury (‘D case absurd’)

Question 52

When should a foreman be appointed?

Answer 52

At end of SU, judge should advise jury to appoint one spokesman to announce verdict

Question 53

Judge should invite jury to retire & seek unanimous decision. Does the failure to do this renders conviction unsafe?

Answer 53

no

Question 54

The judge invites the jury to retire & seek unanimous decision. They cannot come to an unanimous decision. should give a further direction only then?

Answer 54

• Judge should not indicate precise period which must elapse before a majority verdict becomes a possibility
• But if he does, will not necessarily be improper (e.g. where effect is to alleviate jury anxiety/uncertainty)

Question 55

Retirement of the jury

Answer 55

o Once jury retires, should not separate from one another or jury bailiffs
o Must remain in the charge of the court throughout = prevent interference

Question 56

Qs from the jury

Answer 56

o Jury can ask Qs from judge by passing notes (timed & dated) via jury bailiff
o Objects of the procedure:
▪ (a) remove suspicion of private/secret communication between court & jury
▪ (b) enable judge to assist jury properly on matters of fact/law troubling them
o How judges should respond:
▪ (1) If raises something unconnected (e.g. message to relative of juror) = can be dealt with w/o reference to counsel or bringing jury back to court
▪ (2) In almost every other case judge should state in open court the nature & content of communication from jury &, if helpful, seek assistance of counsel (before jury returns to court for judge to deal w/ the communication)
▪ (3) If communication contains info which jury should not have given (e.g. details of voting figures) = communication should be dealt w/ in normal way, but judge should not disclose detailed info jury shouldn’t have revealed

Question 57

Majority verdicts

Answer 57

o At common law jury verdicts had to be unanimous; but statute allows majority verdicts if conditions satisfied
o I.e. may not be accepted unless jury have been considering verdict for such period as court considers reasonable given nature & complexity of case
▪ In any event, not less than two hours
* Which includes any period during which jury return to court to ask Q / talk to judge
* CrimPD factors in time taken making way to jury room & electing foreman (CrimPD = 2 hours 10 min minimum)
o Minimum permissible numbers:
▪ Jury of 12: 11-1 or 10-2
▪ When one/more jurors discharged: 10-1 or 9-1
▪ Jury of 9 or less must be unanimous
o If (& only if) verdict = G →
▪ Foreman must state in open court number of jurors who agreed/dissented
▪ If fail to do this = conviction liable to be quashed

Question 58

G of an alternative (lesser) offence

Answer 58

can be done if:
▪ (1) Offence charged expressly incl. allegation of another indictable offence
▪ (2) Offence charged impliedly incl. allegation of another indictable offence
* Unless offence charged = murder/treason
o Judge not obliged to direct jury on this in summing up
▪ But should be done if possibility that A may be G only of the lesser offence has been obviously raised by evidence (even if P & D counsel protest)
▪ However, alternative should not require proof of specific intent if offence charged required this

Question 59

Returning the verdict

Answer 59

o Delivered in open court, in presence of A
o Foreman states in response to Qs from clerk of court whether find A G or NG
o Jury entitled to:
▪ 1) find A guilty on one count but not others (partial verdict)
▪ 2) find one A guilty but another not
▪ 3) find A G in re: of only some allegations set out in particulars of a count, e.g. when a count for theft specifies several items & jury only sure of a few

Question 60

What’s the procedure where the Jury is unable to agree on a verdict?

Answer 60

Judge will discharge jury, & A may be retried by a different jury

• Discretion of P whether to ask for a retrial

Question 61

What’s the procedure where 1 jury fails to agree? And if 2 juries fail to agree?

Answer 61

1 jury - Usually retrial (unless exceptional reasons)
2 juries fail = P usually doesn’t seek 3rd trial & offers no evidence instead

• But this is not a proposition of law — whether an abuse of process for P to seek a further trial depends on facts including:

(1) overall period of delay & reasons for it
(2) results of previous trials
(3) seriousness of the offence, and (possibly)
(4) extent to which the case against D had changed since previous trials