The three stages of a trial and the presentation of evidence - Essay Example

?The Three Stages of a Trial and the Presentation of Evidence Introduction A trial only follows once the accused challenges the accusations against him/her and maintains that he is not guilty of the claims alleged by his or her accuser. What follows is a trial or a test of the accuser’s allegation and the evidence that is intended to substantiate the accuser’s allegations.1 After the prosecution closes its case, the defence is at liberty to call witnesses and present evidence in his or her defence.2 In a trial, regardless of whether or not the witnesses are called for the defence or the prosecution, all witnesses are called, sworn, examined, cross-examined and if necessary re-examined.3 Witnesses present evidence for the prosecution first and this evidence can be in the form of eye witness testimony, documentary evidence or forensic evidence. The prosecution’s evidence is presented pursuant to the presumption of innocence in criminal trials or on the basis of the accuser’s duty to prove his or her case against the defendant in civil trials. Thus the stages of a trial are built around the establishment of sufficient evidence to support the claims made by the accuser. Only when the accuser has established sufficient evidence to substantiate their claims will the trial move on to the final stage of the trial which is the defendant’s presentation of evidence to counter the prosecution’s evidence.4 Essentially, the evidence is presented in three stages of the trial, examination-in-chief, cross-examination each of which continue throughout the trial. This three-stage process is conducted via the presentation of the accuser’s case and the defences’s case which can either be a presentation of no case to answer or an actual defence.5 Collectively, these stages of the trial allow for the full presentation of admissible evidence which is tested by examination, cross-examination and rehabilitated if possible through re-examination. This paper analyzes the three stages of a criminal trial to illustrate how each phase ensures that evidence ultimately presented withstands or fails to withstand the rigor of presentation. Therefore this paper is divided into three parts: examination-in-chief; cross-examination and re-examination. Background Before analyzing the three-stage process of the criminal trial it is necessary to present the background against which the three-stage trial process is set. It is this background that necessitates the presentation of evidence in a way that it is tested and thus assists the tribunal of fact as far as humanly and reasonably possible to arrive at an honest conclusion. The background foundations for the criminal trial also ensures that the defendant’s right to a fair trial is protected and that he or she has an opportunity to counter the evidence presented against him or her. The foundation for the three-stage trial process in the presentation of evidence is grounded in Article 6 of the European Convention on Human Rights. The right to a fair trial as enunciated in Article 6 of the European Convention on Human Rights provides the defendant with an inalienable right to confront the witnesses against him at the trial. This is also known as the right to not only confront one’s accusers but the right for one’s accusers to confront the accused person.6 In this regard, at the stage of the trial where the prosecution presents its case, evidence is presented substantiating the allegations against the accused through the direct examination of witnesses for the prosecution.7 At the close of the prosecution’s case, the defendant who has the inalienable right to remain silent may make a submission of no case to answer.8 The right to remain silent is not specifically mentioned in the European Convention on Human rights but has been interpreted by the courts to be a necessary part of the right to a fair trial as provided for in Article 6 of the Convention. In fact it was held in Murray v UK that: the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.9 The purpose of the no case submission can be described as another cog in the trial phase where evidence is put to the test, although it is entirely up to the defendant whether or not he or she will make the submission. The no case submissions usually argue that the evidence presented by the prosecution has been so seriously discredited during its presentation that no tribunal of fact properly directed could convict on it.10 During the no case submission, the defendant typically offers a critique of the evidence presented by the prosecution with a view to convincing the court that the evidence does not establish the essential elements of the crime and therefore the case should be dismissed without prejudice to the prosecution’s right to bring the case back at a subsequent date.11 If the defendant’s no case submissions are unsuccessful he or she may choose to exercise the right to remain silent and refuse to call witnesses or he may waive that right and call witnesses. In either case, the defendant is at liberty to testify himself and in making this decision he or she may decide to give an unsworn statement in which case he/she will not be subjected to cross-examination. In such a case, the jury is reminded of the defendant’s right to remain silent and thus they may not infer guilt from his decision not to testify and that while they may take account of his unsworn statement in the event he gives one, they may take account of the fact that it was not tested by cross-examination.12 The fact is, as previously mentioned, when evidence is not subjected to cross-examination, a caution by a judge to that effect is hardly reassurance that the tribunal of fact will automatically see it that way. Examination in Chief The criminal trial begins with the prosecution’s opening statement. Since the burden of proof is on the prosecution, the prosecution will provide the jury with a snapshot of the evidence he or she will be presenting to prove beyond a reasonable doubt that the accused is guilty of the offence or offences with which he or she is charged.13 Once the prosecution concludes his or her opening statement, the defence may if he or she elects will make an opening statement. However, the right to remain silent dictates that the defendant need not make an opening statement. To this end, the defendant is at liberty to forego the opening statement and may instead make an opening statement upon the closing of the prosecution’s case. Even then, the defendant continues to be at liberty to refuse to make an opening statement, pursuant to the right to remain silent.14 At the close of the opening statement or statements, the prosecution then begins to present the case in chief. During the case in chief, the prosecution will call witnesses to present evidence of the prosecution’s case against the defendant. The prosecution’s case in chief is presented first because the prosecution bears the burden of proof. The case in chief commences with the prosecution calling a witness that is expected to give evidence calculated to establish and prove the essential elements of the crime for which the defendant stands accused. Thus the first stage of the witness’s testimony is extracted by virtue of direct examination or examination-in-chief. 15 During the course of direct examination or examination-in-chief, the prosecution will generally ask questions of the witness calculated to establish that a crime was indeed committed. This is known as the corpus deliciti which “refers to the substantial facts that show a crime has been committed.”16 In the presentation of the corpus deliciti, the prosecution hopes to establish via the examination of the witness that the defendant is somehow linked to the crime or is implicated in the offence in one way or another.17 The rules and law of evidence is structured so that the examination-in-chief only extracts from the witness, the best evidence possible. The best evidence possible is described as evidence that is truthful and voluntarily given. Thus the law and rules of evidence limits direct examination or examination-in-chief to questions that do not purposely attempt to lead to a specific response (leading questions) and to ensure that the witness only testifies to those things that are within his or her own personal knowledge (the rule against hearsay).18 Be that as it may, there are certain exceptions to the rules against hearsay which are designed to ensure that all the relevant and non-prejudicial evidence is brought out during the examination-in-chief or direct examination. For instance, where a statement is made by the victim and regarded as a “dying declaration”, that statement may be admitted as an exemption to the rules against hearsay. Hearsay evidence may also be admitted if it forms a part of the res gestae. The res gestae is defined as: Those circumstances which are the undersigned incidents of a particular litigated act, which are admissible when illustrative of that act. They may consist of speeches of any one concerned, whether participant of bystander; they may comprise things left undone as well as things done.19 The significance here is that the res gestae rule permits the prosecution to ask questions of the witness in direct examination or examination-in-chief that would otherwise be inadmissible evidence. Such evidence would include evidence of confessions and dying declarations. In the absence of the res gestae rule a police officer who testifies for the prosecution in examination-in-chief or direct examination, would not be able to provide the contents of a confession that was obtained during the police investigation. The general rule in all trials, both criminal and civil is that any evidence called to substantiate a case must be presented by a witness via oral testimony in a public forum. The first part of the presentation of the evidence is given by virtue of examination-in-chief.20 During examination-in-chief there are specific rules that are designed to ensure that the evidence is voluntarily recalled and presented without prompting so as to give the appearance that the witness’s testimony is coached and fabricated. In this regard, the person, either the defendant or the prosecution calling the witness must be careful not to ask leading questions unless facts have been stipulated by both sides.21 Another safeguard found in the common law is the latitude accorded lawyers conduction an examination in chief is to ensure that the full evidence is presented for the tribunal of fact. This safeguard is referred to as “refreshing the memory”.22 The reality is, many times, witnesses can forget key facts. The common law permits the attorney leading evidence in chief to have the witness refer to documents recording pre-trial statements to refresh his or her memory. However, with the relaxation of the rules relative to hearsay evidence and the corresponding liberal admission of previous statements and recordings diminish the necessity of refreshing the witness’s memory.23 Another rule that seeks to safeguard the integrity of the evidence adduced in examination-in-chief is the prohibition against allowing the witness to give evidence of previous consistent statements. The rule is necessary because as Keane explains: A resourceful witness, minded to deceive the court, could with ease deliberately repeat his version of the facts to a number of people prior to trial with a view to showing consistency with the story he tells in the witness box, thereby bolstering his credibility.24 As with most rules in criminal and civil trials there are exceptions calculated to ensure fairness to both sides and to avoid a miscarriage of justice. One example is in cases of sexual complaints where a previous recent complaint is admitted to demonstrate consistency in the victim’s sexual complaint.25 Section 120(7) of the Criminal Justice Act now permits victims of all crimes to rely on previous consistent statements to substantiate the veracity of a complaint and thus that evidence may be adduced in examination-in-chief.26 The difficulty with these exceptions is that a person manufacturing a complaint for the purpose of pursuing a malicious prosecution out of revenge may tell their story to several persons prior to lodging a formal complaint with the result that the entire claim can be fabricated and substantiated by fabricated evidence at the trial. Cross-Examination While examination-in-chief may be viewed as the right to confront the accuser, cross-examination may be viewed as the accused person’s right to confront his or her accusers.27 On its fact, cross-examination promises to ensure that the evidence is tested and withstands the rigors of this testing at a trial before it will successfully prosecute an accused person. However, the right to confront the accused is severely shorthanded by new rules of evidence that permit the anonymity of witnesses in certain cases.28 In such a case, the defendant is denied the opportunity to conduct pre-trial investigations that may go to the credibility of a witness and thus use that information to shake the credit of the accuser in cross-examination. If the accused does not know the details of his or her accuser or any other witness, he will not be accorded the information necessary for gathering information for testing the credibility of the witness. Nevertheless, cross-examination is subject to evidentiary rules designed to ensure that the evidence in chief or direct evidence stands up to rigorous testing and challenges. Ultimately virtually any question may be asked that is calculated to shake the witness’s credibility. Otherwise, all questions must be relevant to the prosecution’s case in chief and/or the defense.29 The significance of cross-examination as a means of testing the veracity of evidence in chief if demonstrated by a rule that if a witness after given evidence in chief is unavailable for cross-examination, his or her direct evidence is given little weight.30 However, this is hardly reassuring since there is no predicting how much weight a jury may put on the evidence that has not been tested by cross-examination. Be that as it may, cross-examination is not limited to the evidence adduced in examination-in-chief. Any questions may be asked provided they are relevant to the issues to be determined in the trial. Thus the judge may control the nature and length of the cross-examination to ensure that it does not go too far afield, confuses or bores the jury or adduces irrelevant and damaging/inadmissible evidence to either side.31 Thus cross-examination is used to ensure that the prosecution’s case withstands the rigors of challenge in a lawful and probative way. Given the latitude that cross-examination allows, quite often evidence is admitted via a witness that was not introduced in the examination-in-chief. Thus the rules of evidence permit re-examination which permits the attorney calling the witness to explore these issues anew.32 The idea is to ensure that the witnesses who is prevented from explaining new evidence in a way that may seem to discredit his evidence or to give credence to a defence can be explained. This is necessary because witnesses are instructed to merely answer questions and are not permitted to offer information voluntarily. This seems entirely unfair, however, when one considers that witnesses are not aware of the rules of evidence, they may offer information that is entirely prejudicial and can therefore cause a mistrial. The rules of evidence is therefore necessary for reigning in the evidence adduced during examination-in-chief, cross-examination and reexamination. Cross-examination of all witnesses is deemed to be a crucial part of the evidence process in any trial.33 Cross-examination has been described as vital technique in the presentation of evidence for discovering the truth.34 Truth is discovered by virtue of techniques calculated to test the veracity of the evidence brought out during examination-in-chief. In a typical case, the defendant through his attorney uses cross-examination as a tool for rehabilitating his or her client, if the evidence in chief was incriminating.35 Obviously, if the witness remains unshaken during cross-examination or remains committed to the evidence given during examination in chief, it can generally be concluded that the witness’s testimony is credible and thus reliable. If however, the witness is shaken during cross-examination and is impeached, the jury is at liberty to regard the witness as unreliable and may if it so chooses, to disregard the witness’s evidence given during the examination in chief either partly or wholly. Cross-examination is also helpful in terms of putting evidence before the tribunal of fact because it can be used to solicit evidence that is either helpful to the defendant or harmful to the prosecution’s case.36This will also apply to the prosecution who is cross-examining a defence witness. The prosecution will seek to illicit testimony that hurts the defendant’s case and to bolster the prosecution’s case. Thus cross-examination by its very nature ensures that all the relevant and admissible evidence is placed before the jury and not just the evidence that the prosecution or the defendant. Another cross-examination purpose relative to the extraction of relevant and admissible evidence is a line of questioning aimed at discrediting the witness. The trial attorney will typically attempt to discredit the witness by asking questions calculated to expose discrepancies in the evidence given during examination-in-chief. Discrepancies are typically proven by reference to previous statements or inconsistencies in the witness’s testimony relative to the testimony of other witnesses.37 Cross-examination also tests or challenges the evidence given by a witness in examination-in-chief by asking questions of the witness that can expose the witness’s bias against the defendant or bias in favour of the prosecution.38Likewise, the witness can be discredited if the witness claims to have seen a specific event or has identified the defendant as the culprit and responses elicited during cross-examination demonstrate that the witness was either mistaken or could not have observed what the witness claimed to have observed.39 Essentially, cross-examination is designed to test and challenge the evidence. If a witness is unable to hold up or to remain committed to the testimony elicited during examination-in-chief, the witness’ evidence is rendered unreliable. If any part of the witness’ evidence is revealed as suspect during the cross-examination phase of the trial, the defendant will usually get the benefit of the doubt. The idea is to ensure that the evidence elicited during examination-in-chief is trustworthy and thus of sufficient candour to justify a conviction. If it does not standup well to scrutiny, a conviction is less likely and the defendant’s guilt may be seriously doubtful unless there is other evidence that has not been impeached. Re-examination Re-examination is also a critical part of the evidence process in any trial. It is typically permitted in cases where cross-examination elicited new evidence or introduced an element that the prosecution was not at liberty to elicit in examination-in-chief. In its simplest form: A witness who has been cross-examined by the opposing party may then be re-examined by the party who called him.40 Re-examination is typically limited to the questions asked and answers given during the cross-examination phase of the trial.41 Obviously there has to be some limitations to re-examination otherwise, questioners would be allowed to go on fishing expeditions with the result that the trial would be prolonged and the witness could be on the witness stand for an inordinate length of time. Re-examination is primarily for the purpose of according the witness “an opportunity to repair damage done during cross-examination.” Moreover the witness is permitted to offer explanations relative to discrepancies and to expound upon some of the responses given during cross-examination as long as the witness does not introduce new matters or anything that was not covered by cross-examination. If however, the trial judge in the exercise of his discretion permits re-examination on new matters, the witness will be subjected to cross-examination once again.42 In the event the questioner attempts to impugn the witness’s character by asking questions to establish bad character in cross-examination, re-examination may be used to rehabilitate the witness. Questions will be permitted in re-examination to establish the witness’ good character. For example the witness may be asked questions establishing that the witness has no antecedents if questions seeking to establish the opposite were asked during cross-examination.43 Although it is largely believed that cross-examination is more difficult than re-examination, it has been noted that the reverse is true. For example, Maurice Healy noted as far back as 1929 that: The examination-in-chief of a witness gives the artist full scope every time…Only one art is more difficult; that is the art of re-examination. Herein the object of the advocate is to overcome the effect of a destructive cross-examination. The object is attained by a miracle: if you can’t perform them, you much better allow your witness to go out of the box without further question.44 Thus, the examination-in-chief gives the cross-examiner a lot to work with and free range to explore any matter that is relevant to the issues and relevant to testing the witness’s credibility. However, re-examination is far more confining as the re-examiner may only ask questions that arise out of anything new elicited during cross-examination. The reasons for the difference in cross-examination and re-examination are to prevent the parties going on a fishing expedition and to ensure that the evidence obtained is relevant and admissible. Re-examination is merely permitted to address new issues arising during cross-examination. If it were to be otherwise, the court would have very little control over the evidence admitted. In its simplest form, cross-examination tests the evidence given in evidence-in-chief and if it is successfully tested, re-examination permits the witness to be rehabilitated. Both processes of the trial are used to ensure that the evidence intended to secure a conviction can stand up to rigorous scrutiny. Conventional wisdom dictates that if evidence is able to stand up to rigorous scrutiny the evidence is truthful and thus the verdict relying on that evidence is just. Similarly, if the evidence is unable to stand up to rigorous scrutiny, that evidence will most likely not be used by a tribunal of fact to convict the defendant. The tribunal of fact will likely look for other more credible evidence. In the final analysis, re-examination ensures that if the witness cannot or can be rehabilitated, the verdict should correspond with the integrity of the witness’s testimony unless there is other irreproachable and incriminating evidence. Conclusion The trial itself is concerned with the presentation of evidence relevant to the legal and factual issues before the court. The evidence is either presented or debated throughout the trial pursuant to the laws and rules regulating the presentation and admissibility of evidence. Quite often evidence is relevant but inadmissible and unfortunately, in balancing the scales of justice for both victims and defendants and protecting the accused right to a fair trial, the best evidence may not be presented in the courts. However, it is this balancing exercise that requires that as far as possible, the best evidence is presented and at the end of the day, regardless of the outcome, it is supported by the evidence that was legally and fully presented in the course of the trial. If both sides merely traded evidence that was not subject to cross-examination the tribunal of fact would only be getting one side of the story and thus an incomplete version of events. Therefore, examination-in-chief, cross-examination and re-examination facilitate that telling of a complete version so that a tribunal of fact is in possession of the best available and admissible evidence. The strength of the evidence will be tested and scrutinized during cross-examination. The authenticity of the scrutiny and tests during cross-examination will be tested during re-examination. Bibliography Alexander, G. (1915/2010). The Administration of Justice in Criminal Matters: (In England and Wales). Cambridge, UK: Cambridge University Press. Baldwin, W. (1909). The Law of Personal Injury in Michigan. Chicago, ILL: Callaghan & Company. Catherall [2004] EWCA Crim 1732. Criminal Justice Act 2003, Section 120(7). Davis (Lain) [2008] 3 All ER 461. Delmas-Marty, M. (2002) European Criminal Procedures. Cambridge, UK: Cambridge University Press. Dennis, I. (2010). “The Right to Confront Witnesses: Meanings, Myths and Human Rights”. Criminal Law Review, 255-274. R v Doolin [1882] 1 Jebb CC 123. Fercico, J. N.; Fradella, H. F. and Totten, C. D. (2009). Criminal Procedure for the Criminal Justice Professional. Belmont, CA: Wadsworth. Gaines, L. K. and Miller, R. L. (2010). Criminal Justice in Action. Belmont, CA: Wadsworth/Cengage Learning. Gillespie, A. (2007). The English Legal System. Oxford, UK: Oxford University Press. Hannibal, M. and Mountford, L. (2007). LPC Handbook on Criminal Litigation, 2007-2008. Oxford, UK: Oxford University Press. Kean, A. (2008). The Modern Law of Evidence. Oxford, UK: Oxford University Press. Lubet, Steven (2004). Modern Trial Advocacy: Analysis and Practice, South Bend, Indiana: National Institute for Trial Advocacy. Munday, R. (2007) Evidence. Oxford, UK: Oxford University Press. Murray v UK [1996] ECHR 3. Parkin v Moon [1936] 7 C&P 408. R v Galbraith [1981] 2 All ER 1060. R v Treacy [1944] 2 All ER 229. Siegel, L. J. (2010). Criminal Justice. Belmont, CA: Wadsworth. Wellman, F. (1903). The Art of Cross-Examination, London, UK: The MacMillan Company. Read More