Processes: Trial Procedure Flashcards
How are disputed facts proven at trial?
Trials rely on proof of disputed facts - disputed facts can be proven by one of 3 types of evidence:
- Testimony
- Documentary Evidence
- Real Evidence
What is meant by testimony evidence?
Spoken evidence of witnesses and includes evidence given by police officers and expert witnesses
What is meant by documentary evidence?
Evidence contained in writing, on a computer or in an audio or visual recording if it is not given under oath as part of a trial. Such evidence is admissible subject to rules about hearsay evidence and needs to be “proven” by some other evidence.
What is meant by real evidence?
Objects, items or other things that “speak for themselves”, including any exhibits to be produced at trial, such as a murder weapon. It also includes the limited entitlement of the tribunal of fact to be taken out of court to observe something like the scene of a crime. Real evidence also needs to be “proven” to be valid and related to the case.
What is the legal burden?
Defines which party must prove a particular fact in issue at the end of the case when the jury or magistrates retire to consider their verdict. If required standard of proof is not met, issue is not proven.
What is the evidential burden?
Establishes whether any particular fact in issue can be considered by the ToF. Party seeking to have the jury consider the issue must call enough evidence to ‘put the matter in issue’.
What is the prosecution’s legal burden of proof?
Prosecution must prove all AR and MR elements that constitute the offence charged. They must also prove the identity of the defendant as the person who carried out the AR and had the MR. There is a presumption of innocence at common law and the prosecution that brings the case should prove the case.
What is the common law defence rule for evidential burden?
The defence bears the evidential burden to put the matter in issue (e.g self-defence, diminished responsibility). They need to prove the issue on the balance of probabilities. If they do so, it is for the prosecution to disprove that issue beyond reasonable doubt.
→ Exception: Insanity - defence bears both the evidential and legal burden
What is the standard of proof and how is the burden of proof directed?
Defines when an issue will be proven. Gives the ToF a standard against which to measure the weight of the evidence. The prosecution proves facts beyond reasonable doubt and the defence proves facts on the balance of probabilities.
Burden of proof direction: The judge must remind the jury who bears the burden of proof and to what standard each issue in the case must be proved.
What is the advantage of formal admissions?
Facts can be formally admitted under the CJA 1967 s 10, either before the trial in writing or orally at trial by a legal representative. This can save a lot of time and can minimise the risk of being questioned about it in cross-examination at any great length. A formal admission is treated as conclusive on the matter, meaning it cannot be subject to further proof
What decisions are made by the tribunal of law?
The tribunal of law makes decisions on legal matters including: | the meaning of the law | the procedures to be followed | the admissibility of evidence | any sentence to be imposed following conviction.
→ Crown Court: Judge - ToL
→ Magistrates’ Court: Lay magistrates or District Judge - ToL
What decisions are made by the tribunal of fact?
The tribunal of fact makes decisions on the factual issues in the case. This includes | the overall issue of guilt | the credibility of witnesses | whether particular relevant facts are proven or not |. This can also involve evaluation and decisions on matters that may seem legal such as | dishonesty or the grossness of negligence |.
→ Crown Court: Jury - ToF
→ Magistrates’ Court: Lay magistrates or District Judge - ToF
What is the indictment (for the Crown Court)?
The indictment is a document formally listing the offences with which the defendant will be tried. Each offence must be distinctly listed in the indictment in a separate count.
Each count must identify the offence and provide sufficient particulars of the offence to clearly identify what the defendant is accused of.
What is the role of an authorised court officer (for the Magistrates’ Court)?
A legal professional whose duties are to provide legal advice on matters of substantive law, evidence, procedure or sentencing to lay magistrates.
This can occur either when requested by the magistrates or to bring such matters to their attention when it seems appropriate on the facts of the case.
What are the trial stages in the Magistrates’ Court?
- Prosecution opening speech
- Prosecution calls evidence
- Defence makes a submission of no case to answer, if appropriate
- Defence call evidence (if they wish)
- Speeches
- Magistrates deliberate
- Verdict with reasons
What are the trial stages in the Crown Court?
- Jury is sworn
- Prosecution opening speech
- Prosecution calls evidence
- Defence makes a submission of no case to answer, if appropriate
- Defence call evidence (if they wish)
- Speeches
- Summing up to jury
- Jury retires to deliberate
- Verdict
Explain the different modes of address to court representatives
Magistrates (individually)
“Sir” or “Madam”
Magistrates (bench)
“Your worships” or directed to the Chair as “Sir” or “Madam”
District judge
“Judge”
Crown Court judge
“Your Honour”
High Court judge
“My Lord” or “My Lady” or “Your Lordship” or “Your Ladyship”
A solicitor
“My friend”
A barrister
“My learned friend”
What is examination-in-chief?
The witness is firstly “examined-in-chief” by the prosecution / defence. This involves the witness giving their account in their own words as a response to non-leading questions from the prosecution / defence advocate
What is cross-examination?
The witness is then cross-examined by each other party. This involves being challenged or invited to make relevant concessions by each other party. This is usually done by asking leading questions (although there is no rule that questions must be asked in this way).
Cross-examination by defendants takes place in the order they are listed on the indictment
What is re-examination?
The witness might then be re-examined by the party who led the examination-in-chief. Re-examination should be restricted to matters that arose as fresh issues in cross-examination and that could not be expected to have been raised in examination-in-chief. The purpose of re-examination is to get the first party’s account of new matters not to allow a repeat of what has been testified already.
What is the ‘no case to answer’ test?
Made in the absence of the jury. There are two limbs to the test:
1) There is no evidence that the crime alleged has been committed by the defendant;
2) The prosecution case, taken at its highest, is such that a properly directed jury should not properly convict
Defence will make the submission and the prosecution has a chance to respond. If successful, the jury will be directed to acquit the defendant.
What are possible verdict outcomes in a criminal trial?
Possible verdicts are: a. guilty or not guilty unanimously (12-0), or b. guilty or not guilty by majority (10-2 or 11-1). If there is no verdict, the judge must discharge the jury. The defendant is not acquitted and might be retried.
What is the effect of conviction?
If the jury convicts the defendant on any of the charges, the defendant will be sentenced by the judge either immediately or following an adjournment for the preparation of a pre-sentence report.
What is the effect of acquittal?
If the defendant is acquitted on all counts, they are declared innocent of a crime and set free. They are entitled to have costs met under a representation order (unless the judge, by exception, decides it is not appropriate to do so). If the defendant is privately funded, they may receive an order for costs at the discretion of the court.
