Clients charged with serious criminal offences whose cases proceed to a higher court – such as the District or Supreme Court – are often ‘in the dark’ about the steps involved in a jury trial.
And why wouldn’t they be? Television shows often depict a dramatic trial consisting of a little cross-examination (almost always involving impermissible questioning), a surprise witness and theatrical closing statements – all lasting about 10 minutes.
The reality of trials is, of course, very different.
There are many blogs out there about what you should do when faced with a trial, and most of them go a bit like this: ‘Trials are very complex and you need a good lawyer to represent you. So you better get us’.
Many are left guessing about the basics of trials – such as the process of empanelling a jury, who goes first, what types of questions can be asked and even whether a ‘majority verdict’ can be returned (as opposed to a verdict that is ‘unanimous’).
Some clients are understandably unaware of rules which are second-nature to experienced lawyers: including that witnesses (other than police) are not allowed to read from their statements on the witness stand (unless given permission), that the whole of the prosecution case must go first (giving the defence an opportunity to assess the strength of the case after it has finished, and decide whether to submit that there is ‘no case to answer’ or call defence witnesses), that ‘leading’ questions cannot normally be put to one’s own witnesses, and so on.
So here is a very basic outline of the main steps involved in a District or Supreme Court jury trial:
a) Arraignment and witness list
The first step is called ‘arraignment’.
This is where the Judge’s Associate (who is the person sitting in front of the judge) reads aloud to the Accused (who is the person on trial) each count on the indictment (ie each charge). After each count is read, the Judge’s Associate will ask the Accused: ‘how do you plead, guilty or not guilty’.
The Accused will then say either ‘guilty’ or ‘not guilty’.
During the ‘arraignment’, there will be a large number of people in the public area of the Courtroom.
These are prospective jurors ie the group from which the jury panel will be chosen.
Note: if you are to be arraigned, stand when your name is called and remain standing until you have entered pleas to all the charges.
Try to remain calm and composed, and stay focused on the Judge’s Associate throughout the process.
The prosecutor will normally then read a list of the prospective witnesses, and any prospective juror who feels they will not be able to act impartially (because they know the Accused or one of the witnesses) can asked to be excused from the jury panel.
b) Jury empanelment
The next stage is to select (or ‘empanel’) a jury. This is done in the following way:
- The Judge’s Associate will pick numbers from a box; a bit like a lottery. Each prospective juror will have a numbered ticket, and if their number is picked they will take a seat in the ‘jury box’. Each person will take a bible (unless they wish to give an ‘affirmation’ rather than swear an ‘oath’). 12 people will initially be picked in this way; then
- The Judge’s Associate will ask each potential juror to stand up and swear an ‘oath’ (on the bible) or an ‘affirmation’ (if they don’t wish to swear on the bible). As each juror stands up, the Prosecutor or Defence lawyer can have that juror removed from the jury by saying: ‘challenge’ followed by the name of their client eg ‘challenge Mr Brown’. The Prosecution represents the ‘Crown’, so the Prosecutor will say ‘challenge Crown’. Each Accused will have 3 ‘challenges’, and the Prosecutor will have 3 challenges for every Accused person. So, if you and two others are on trial at the same time, you will have 3 challenges, each of the two other Accused will have 3 challenges (so 9 challenges altogether for the 3 Accused), and the Prosecution will have 9 challenges.
- When a potential juror is ‘challenged’, he or she will leave the jury box. Another ‘lottery’ will take place to fill the seats of those who are challenged. The replacements can also be challenged, until finally 12 unchallenged people are left. These remaining 12 form the ‘jury panel’.
c) Prosecution opening
The Judge will then invite the Prosecutor to give a general outline of what is being alleged against the Accused.
No witnesses are called at this stage and no documents are ‘tendered’ (ie handed up to the Judge as evidence).
d) Defence opening (optional)
The Judge will then ask the criminal defence lawyer if he or she would like to outline the defence case.
The criminal defence lawyer will usually only give an extremely general opening or no opening at all, so that it doesn’t tie the defence down to a specific version of events.
It is often better for the criminal defence lawyer to hear the whole Prosecution case (ie to wait until all of the Prosecution witnesses have given their evidence) before deciding whether or not to give an ‘opening address’.
e) Prosecution case
The Prosecution witnesses are then called to the witness stand one at a time.
They may include police officers, civilian witnesses (eg people who saw or heard the events), customs officers (in drug importation cases), expert witnesses (eg DNA experts, psychiatrists, other doctors) etc.
(i) Examination in chief
After being ‘sworn in’, each Prosecution witness will first be questioned by the Prosecutor.
There are many rules of evidence that criminal defence lawyers must follow when asking questions.
One of the rules is that when questioning your own witness, you cannot usually ask ‘leading questions’, which are questions that contain or suggest a particular answer.
The following are examples of ‘leading questions’:
- ‘you went to Drinkalot Pub at around 8pm on 27th December didn’t you?’.
This question suggests that the witness answer as follows: ‘I went to Drinkalot Pub at….. etc’. Similarly,
- ‘did you then see the Accused pointing a gun at the teller?’
Again, this suggests the answer: ‘I saw the accused pointing a gun at the teller’. In contrast, the following questions are not leading, as they do not contain or suggest a particular answer:
- ‘when and where did you go then?’; and
- ‘did you see the Accused do anything after that?’.
After the Prosecutor has finished questioning a witness, the criminal defence lawyer will have the opportunity to ‘cross-examine’ (ask questions to) that witness.
Leading questions are allowed at this stage.
‘Cross examination’ gives the defence lawyer a chance to reveal any inconsistencies or untruths in the witness’s evidence.
It also allows the defence to ‘put its case’ ie to suggest what the Accused’s defence will be.
For example, the defence lawyer may ‘put its case’ to a Prosecution witness as follows:
- ‘I put it to you that it wasn’t my client Mr Smith that you saw point the gun at the teller, but actually another person Mr Jones. What do you say about that?’
The defence lawyer must directly or indirectly ‘put its case’ at some stage during if it wants to rely on that defence later on.
In other words, if a Prosecution witness says during ‘examination in chief’ that Mr Smith was holding a gun but the criminal defence lawyer fails to suggest – whether directly or by way of inference – that Mr Smith was not doing so, the defence cannot say during its closing address that Mr Smith is innocent because he was not holding a gun (this rule is often referred to as the ‘rule in Brown v Dunn’).
It is therefore very important that your criminal defence lawyer ‘put its case’ either directly or indirectly at some stage.
If new facts or issues are raised during ‘cross examination’, the opposing party can ask questions (in other words ‘re-examine’) about those facts or issues only.
New facts or issues are those that did not arise during the ‘examination in chief’ of the particular witness.
For example, if during examination in chief Ms Pearly does not say anything about the fact that she saw Mr Bloggs holding a gun, but she says this when ‘cross examined’ by the criminal defence lawyer, the Prosecutor may ‘re examine’ her (ie ask her questions) only about the issue of who she saw holding the gun.
f) Close of Prosecution Case
After the questioning has finished, the Prosecution will declare its case against the Accused ‘closed’ (ie concluded).
g) No case submission by Defence (optional)
If the criminal defence lawyer thinks that the Prosecution case was particularly weak, we can ask the Judge at this stage to ‘direct an acquittal’; in other words, to tell the jury that it must find the Accused ‘not guilty’.
The Judge will only do this if he or she concludes that the Prosecution has failed to produce enough evidence for any ‘reasonable jury’ to find the Accused ‘guilty’.
If the Judge ‘directs an acquittal’, the Accused is ‘not guilty’ and the case will be dismissed.
h) Defence opening (optional)
The Judge will then ask, once again, whether the criminal defence lawyer would like to outline his or her case.
By this stage of the trial, the defence lawyer will know exactly what the Prosecution is alleging.
The criminal defence lawyer will also have obtained detailed ‘instructions’ (ie information) from the Accused, and will have formulated a defensive strategy.
i) Defence case
The defence will then decide which, if any, of their witnesses will be called to the witness stand.
The Accused (optional)
The Accused does not have to give evidence as a witness.
In fact, one of the most difficult decisions the defence must make is whether to call the Accused to the witness stand.
In making that decision, the criminal defence lawyer will consider a number of things, including:
- the likely strength of the Accused’s evidence. If we feel that the information received from the Accused during conference is likely to substantially benefit the defence, they will of course be more likely to advise the Accused to give evidence.
- the strength of the Prosecution case. If the Prosecution case is very strong, we will be more likely to advise the Accused that refuting evidence is required. On the other hand, if the Prosecution case is very weak, we may feel that it is unacceptably risky to expose the Accused to ‘cross examination’.
- the likely ability of the Accused to withstand ‘cross examination’. Giving evidence as a witness is extremely stressful, especially as an Accused facing the possibility of a lengthy prison sentence. Because some people handle great pressure better than others, the criminal defence lawyers may try to predict or test the likely ability of the Accused to be composed and convincing under ‘cross examination’.
If the Accused chooses to give evidence, he or she will face the same procedure as any other witness: examination in chief (by the defence lawyer), then cross examination (by the Prosecutor), and finally re examination (by the defence lawyer, but only if new facts or issues were raised during cross examination).
Other witnesses (optional)
The remaining Defence witnesses will then be called to the witness stand one at a time, and questioned following the same procedure: examination in chief (by Defence), cross examination (by Prosecutor), then re examination (by Defence).
j) Prosecution closing statement
After the Defence witnesses have finished, the Prosecution will give its ‘closing statement’ to the jury.
That ‘statement’ may involve the Prosecutor outlining the ‘elements of the offence’; in other words, the ‘ingredients’ that must be proved by the Prosecution for the Accused to be found ‘guilty’.
For example, the ‘elements of the offence’ of ‘robbery’ are as follows:
- that the Accused intended to steal property;
- that he or she did in fact take property;
- from a victim; and
- using violence or by putting the victim in fear.
Note: – the Prosecution must prove each and every one of the ‘elements’ beyond reasonable doubt.
The Prosecutor will then try to convince the jury that the evidence in the trial proves the guilt of the Accused ‘beyond reasonable doubt’. To illustrate, the Prosecutor may say something like:
‘You heard the evidence of Mr X (a prosecution witness) that it was Mr Smith (the Accused) pointing his gun and threatening Ms Fragile (the bank teller).
You also heard the evidence of Ms Fragile that she was extremely scared and handed the cash to Mr Smith, who then left the bank holding the bag of cash. Considering that evidence, you the jury are entitled to find that Mr Smith intended to steal money, that he did in fact steal money, that there was at least one victim – whether that victim is Ms Fragile, others in the bank and/or or the bank itself – and that Ms Fragile and others were very frightened for their safety.
That being so, the elements of robbery are satisfied – and satisfied ‘beyond reasonable doubt’ – and you are therefore entitled to return a verdict of ‘guilty’…’ etc etc.
k) Defence closing
After the Prosecutor has finished, the criminal defence lawyer will be invited to give its ‘closing statement’. The defence’s job is to raise ‘reasonable doubt’ in the jury’s mind about the Accused’s guilt; in other words, to convince the jury that the Accused may not have committed the crime. We may do this by:
- pointing out weaknesses in the Prosecution case, eg inconsistencies or deficiencies in the evidence of Prosecution witnesses;
- highlighting strengths in its own case, eg credible evidence given by the Accused and/or by other Defence witnesses;
- offering alternative explanations for the events, eg the possibility that someone else committed the offence; and so on.
- To illustrate, the criminal defence lawyer may say something like:
‘You heard my client’s evidence (ie the Accused’s evidence) that he was at home at the time of the bank robbery.
He did not have to give evidence; in fact, an Accused person is quite entitled not to take the witness stand at all.
However, he chose to take the stand and, therefore, to be cross examined by the Prosecutor.
His evidence is supported by the evidence of his wife, Ms Smith, who you will recall took the witness stand and confirmed that her husband was definitely at home at the time of this offence….. etc etc. You will also recall the uncertainties in Ms Fragile’s evidence who – having experienced an extremely traumatic confrontation – was understandably unsure of several things, including…… (examples)…
In those circumstances, you will be well-justified in having a reasonable doubt in your minds about whether my client was at the bank at all; in fact, one might think that you should, considering all of the evidence, have such a doubt; especially because my client was, in fact, not at the bank on the day in question.. etc etc…
Where there is any such reasonable doubt, you must find my client ‘not guilty’… etc’.
l) Judge’s ‘summing-up’ to jury
The next stage is the judge’s ‘summing up’, which is where the judge summarises the issues, arguments and evidence in the case.
In the ‘summing up’, the judge might say what he or she thinks the case boils-down to, summarise the lawyers’ central arguments, and outline the main points of each significant witness’s evidence.
m) Judge’s ‘directions’ to jury
The Judge will then explain the relevant laws and how they relate to the case at hand. This is called ‘giving directions’. For example, the Judge might direct as follows:
‘If you do not have a ‘reasonable doubt’ that the Accused pointed the gun at Ms Fragile (the bank teller) and took the money using such violence, then you must find him ‘guilty’.
You must also return a verdict of ‘guilty’ if you find ‘beyond reasonable doubt’ that, although the Accused didn’t hold the gun or take the money himself, he was present and involved in the crime in another capacity.
It wouldn’t matter if he acted as ‘crowd controller’, ‘lookout’, ‘getaway-driver’ or otherwise; if he was there and involved, then you must find him ‘guilty’ of the crime.
This is because the law would consider him part of the ‘joint criminal enterprise’ that committed the offence.
If, on the other hand, you have a ‘reasonable doubt’ that the Accused was present at the bank or that he was, in fact, involved in the offence, then you must find him ‘not guilty’.
You must also return a ‘not guilty’ verdict if you have a ‘reasonable doubt’ about any of the other ‘elements’ or ‘ingredients’ of the offence; such as whether the Accused in fact intended to steal. You can only return a ‘guilty’ verdict if the Prosecution has proved each and every one of the elements ‘beyond reasonable doubt’……. etc etc’.
n) Jury deliberations
After the Judge has finished, the jury will be asked to retire to consider its ‘verdict’; in other words, to decide whether the Accused is ‘guilty’ or ‘not guilty.
In any jury trial, the Judge is the judge of the law and the jury is the judge of the facts.
This means that although it must accept the Judge’s ‘directions’ about the law, the jury is ultimately responsible for determining the ‘verdict’, and it will do this based on what it judges to be the facts.
For example, if there is conflicting evidence about whether or not the Accused was at the bank at the time of the offence, the jury (not the Judge) must determine the issue.
If the jury cannot reach a ‘unanimous’ verdict after a significant period of time has elapsed, the Judge will normally give them what is known as a ‘Black direction’ ie ask them to be patient and consider each other’s views once again.
If they still cannot reach a verdict, the Judge may advise the jury that they may return a ‘majority verdict’. Until recently, the law in NSW was that jury verdicts had to be unanimous; meaning that all 12 jurors had to agree that the Accused is either ‘guilty’ or ‘not guilty’. However, the law has changed to allow ‘majority verdicts’ whereby all except one juror can agree on a verdict (eg 11 guilty and 1 not guilty = guilty verdict).
It is expected that the jury will consider all of the evidence before reaching a verdict.
However, because jury deliberations are secret, no-one except for the jurors will know exactly how the verdict was reached.
o) Jury questions
If any of the jurors have questions about the evidence, the jury foreperson can pass a note containing the questions to the Court Officer, who will in turn pass that note to the Judge.
The Court will then ‘re-convene’ (ie the lawyers, Court Officials and Accused will be called back to the Courtroom) and the questions will be read aloud by the Judge, usually in the absence of the jury.
The Judge and criminal lawyers will then discuss whether the questions will be answered and, if so, how they will be answered.
The jury will then be brought back into the Courtroom and advised of any answers.
Note:- the jury can ask questions in this way at any stage of the trial.
When a verdict is reached, the Court (including the jury) will re-convene.
The jury foreperson will then stand up, after which the Judge’s Associate will read the charges one at a time, asking the foreperson each time: ‘how do you find the Accused, ‘guilty’ or ‘not guilty’’.
The foreperson will then give the verdict, after which the Judge’s Associate will say: ‘so says your foreperson, so say you all’.
After all of the verdicts are given, the Judge will thank and discharge the jury.
If the jury cannot reach a verdict after a ‘Black direction’ is given and invited to reach a majority verdict, there is a ‘hung jury’ and the trial ends. The prosecution will then need to decide whether to conduct a retrial.
If a verdict of not guilty is returned, the Accused person is acquitted.
If the Accused is found ‘guilty’, the matter will be set-down for sentencing.
If a ‘Full Pre-Sentence Report’ is ordered by the Judge, the sentencing will normally be held in 6-8 weeks.
If not, and no other reports are required (eg medical or psychological reports), the sentencing can occur at any time; even on the day of the verdict (if that is suitable to the Judge and both sides).
On the day of sentencing, any character references and medical reports will be handed-up to the Judge, and the criminal defence lawyer will make ‘submissions’ to the Court (ie the criminal lawyers will say things to the Judge and sometimes hand-up documents).
The Accused can give evidence at the sentencing even if he or she did not do so during the trial. The Judge will then decide the penalty.
For information about ‘representing yourself in court’, including in Local Court proceedings, just go to our dedicated website page which also contains helpful videos and answers to frequently asked questions.