MID-TRIAL legal MATTERS, Defence Case & Closing speeches
Legal Applications – Submission of No Case to Answer
At the end of the prosecution case the defence may make an application to the judge called a ‘submission of no case to answer’. This is often referred to by lawyers as a ‘half- time submission’ with reference to the fact that it occurs at the midway point of the trial (i.e. the end of the prosecution case and before the start of the defence case).
The Criminal Procedure Rules Part 25.9(2)(e) govern this procedure in the Crown Court (see Further Information section below) as follows:
... at the end of the prosecution evidence, on the defendant’s application or on its own initiative, the court— (i) may direct the jury ... to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations.
"It is now time for the defendant to present his case to the court. The defendant will have to decide whether he wishes to give evidence."
The test to be applied means that where the prosecution case is weak, either because there is no evidence to prove it or, although there is some evidence, that evidence is insufficient to support a conviction, the judge may direct the jury to find the defendant not guilty. This may happen, for example, because the evidence given by a prosecution witness was so inconsistent as to be incapable of being relied upon, or because a prosecution witness’s evidence was vague or otherwise unconvincing. A more extreme example would be where a prosecution witness accepted lying to the court on an important issue, thus fatally weakening the prosecution case. The essence of the submission is that the evidence is so weak that it would be unsafe even leaving the case to the jury.
The defence representative will make the submission to the judge in the absence of the jury and the prosecution representative will respond. If the application succeeds (i.e. the judge agrees that there is no case to answer), the jury will return and be instructed by the judge to return a verdict of not guilty. A formal Not Guilty verdict will be recorded and, provided the defendant faces no other charges before the court, he will be discharged and free to leave (although if he was in custody he will have to return to the cells to collect any belongings and deal with some administration before release).
If the submission of no case to answer does not succeed (i.e. the judge thinks there is a case to answer) then the jury will return to court and the defence case will start. The jury will not be informed about the unsuccessful submission.
You can read more about submissions of no case to answer in the Further Information section below.
A Warning to the Defendant
It is now time for the defendant to present his case to the court. The defendant will have to decide whether he wishes to give evidence. The decision is an important one. If he chooses to give evidence he will take the oath/affirm in exactly the same way as the prosecution witnesses did, “that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.” He will be taken through his account by his legal representative if he has one (his evidence-in-chief) and he will then be cross-examined by the prosecution representative.
If there is more than one defendant in the trial he can also be cross-examined by the legal representatives for each of those defendants before he is cross-examined by the prosecution.
If he chooses not to give evidence he will not give evidence in chief and cannot be cross-examined by the prosecution. Not being cross-examined may be an advantage on the one hand because the prosecution representative is denied the opportunity to put directly to the defendant any matters to test his reliability. It is worth bearing in mind that the defendant is perfectly entitled not to give evidence. After all, the burden of proof is on the prosecution; the defendant is within his rights to remain silent and let the prosecution prove its case if it has one. However, on the other hand the problem for the defendant is that in most cases if he does not give evidence the jury will be told by the judge that they are entitled to draw an adverse inference against him for this failure, i.e. it can be held against him in deciding if he is guilty of the offence, although it cannot be the only or main reason for finding him guilty. It is this adverse inference which the defendant will be warned about. The same applies if he gives evidence but chooses not to answer questions.
The Criminal Procedure Rules, Part 25.9(2)(f) sets out the procedure in this way:
... at the end of the prosecution evidence, the court must ask whether the defendant intends to give evidence in person and, if the answer is ‘no’, then the court must satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary)— (i) the right to give evidence in person, and (ii) that if the defendant does not give evidence in person, or refuses to answer a question while giving evidence, the court may draw such inferences as seem proper.
This means that after the close of the prosecution case and before the start of the defence case, the judge will inform the defendant (or expect his legal representative to confirm the defendant has been advised) that the time has been reached at which the defendant can give evidence, but if he chooses not to do so (or gives evidence but refuses to answer a relevant question) an adverse inference can be drawn from his failure to do so.
You can read more about the Criminal Procedure Rules in the Further Information section below. You can also read about section 35 of the Criminal Justice and Public Order Act 1994 which contains this adverse inference rule.
THE DEFENCE CASE
Defence Opening Speech
At the start of the defence case the defence representative (or the defendant if he is unrepresented) may address the jury by summarising what the defendant's case is. The right to make an opening speech exists only where the defendant intends to call at least one defence witness in person (other than the defendant himself).
Defence opening speeches are relatively rare and are generally reserved for long and complex cases where it would assist the jury to be given some advance detail of the defence case.
Defendant’s Evidence – Evidence in Chief, Cross-Examination and Re-Examination
"It is now the defendant’s opportunity to explain to the court his side of the story"
Assuming the defendant decides to give evidence he will take the oath/affirm and give his account. It is now the defendant’s opportunity to explain to the court his side of the story. This works in exactly the same way as with prosecution witnesses. He gives his evidence in chief and is then cross-examined by the prosecution advocate. If there is another defendant in the case (a co-defendant) the co-defendant’s legal representative may cross-examine, should he wish to do so, before the prosecution.
"The prosecutor is likely to analyse closely the defendant’s case and exploit any inconsistencies in it, including any differences between what a defendant said when he was questioned by the police and what he is saying now in his evidence at court"
Prosecution cross-examination of a defendant in a criminal trial serves the same purpose as cross-examination by the defence of a prosecution witness, namely to test the defendant’s evidence by putting the prosecution’s case to him as well as any matters that demonstrate unreliability.
The prosecutor is likely to analyse closely the defendant’s case and exploit any inconsistencies in it, including any differences between what a defendant said (if anything) when he was questioned by the police and what he is saying now in his evidence at court.
After cross-examination, the defence representative is entitled to re-examine the defendant in relation to any matters that arise during cross-examination.
See 'A warning to the defendant' above for what happens if a defendant chooses not to give evidence (or refuses to answer questions while doing so).
"If the prosecution wish to put a defendant’s previous convictions or past misconduct to him, they must make what is known as a ‘bad character’ application"
If the prosecution wish to put a defendant’s previous convictions or past misconduct to him, they must make what is known as a ‘bad character’ application. There must be a good reason for the application. Common examples are applications which rely on previous convictions which show a ‘propensity’ to commit certain types of offences, to behave dishonestly or to be untruthful, or applications seeking to adduce 'important explanatory evidence' such as reveals a motive for an offence. Other examples which may arise in the course of a case are where a defendant (either himself or through his legal representative) makes an attack on the character of a prosecution witness – this can result in the defendant’s own bad character being revealed, or when a defendant creates a false impression, such as by telling the court he is “peace loving” when in fact he has convictions for violence; in this situation the prosecution would apply to adduce his previous convictions to counter the false impression given.
Most bad character applications are dealt with at the start of the trial before the case has been opened by the prosecution. The defence are also entitled to make bad character applications to rely on previous convictions or other misconduct of prosecution witnesses if they can show these are relevant in the circumstances of the case.
You can read more about bad character applications in the Crown Court Trial Further Information section.
Defence Witnesses – Evidence in Chief, Cross-Examination and Re-Examination
After the defendant has given evidence (if he chooses to do so) he is entitled to call witnesses.
His witnesses will be taken through their accounts in chief, they will be cross-examined and then, if the defence representative feels it necessary, re-examined.
Agreed Defence Evidence – Reading Statements and Agreed Facts
Just as with agreed prosecution evidence, if defence evidence is agreed by the prosecution the statement can be read out to the court or it can be placed into a document as an agreed fact (admissions).
If a defendant is of good character (i.e. he has no previous convictions) he will often want to adduce character evidence before the court, i.e. testimonials from friends and colleagues attesting to his general honesty and trustworthiness. Often the prosecution will accept this evidence and allow it to be read to the court. Even so, for presentation purposes a defendant may wish to call one or more character witnesses because this may have more impact with the jury than simply reading out a testimonial.
Close of Defence Case
When all of the evidence has been adduced for the defendant, the defence will close its case by saying “that is the case for the defence” or similar.
In a case involving more than one defendant, each defence case is taken consecutively, so the first defendant would give evidence (if he chooses to do so) followed by calling any witnesses and then adducing any agreed evidence. He would then close his case. The second defendant would then give evidence (if he wished) followed by calling his witnesses and any other evidence. He would then close his case, and so on ...
After a defendant has given evidence in chief, co-defendants are entitled to cross-examine him (should they wish to) before cross-examination by the prosecution takes place.
CONSIDERATION OF LEGAL ISSUES
Before the prosecution and defence make their closing speeches to the jury, the judge and the prosecution and defence advocates will consider any matters of law that the jury will need to be directed on as part of the judge’s summing-up. The judge will invite submissions on these matters. This ensures, where possible, that the jury receive all the appropriate legal directions in terms the parties agree upon. It also assists the advocates to know precisely what legal directions are going to be given to the jury before closing speeches are made.
There are numerous legal matters that may arise in the course of the trial. A number of examples are given in the summing-up section below.
Prosecution Closing Speech
The prosecution are entitled to make a closing speech in the Crown Court if the defendant has a legal representative, or he has called at least one factual witness other than himself, or if the court otherwise permits.
If, therefore, a defendant had no legal representative and had just given evidence himself about what had occurred, the prosecution would not be entitled to make a closing speech unless the court gave permission.
The prosecution closing speech is about tying together the individual strands of the case and producing a convincing argument as to why the defendant is guilty of the offence he is accused of.
Defence Closing Speech
"it is the job of the defence to highlight those areas of evidence which reveal weaknesses in the prosecution case"
The defence are always entitled to make a closing speech in the Crown Court. They will, of course, be seeking to persuade the jury that the correct verdict should be one of Not Guilty.
The burden of proof is on the prosecution to prove a defendant’s guilt to a high standard, namely ‘beyond reasonable doubt’ (often referred to in court as the requirement for the jury to be ‘satisfied so that you are sure’ of the defendant’s guilt). As such, it is the job of the defence to highlight those areas of evidence which reveal weaknesses in the prosecution case and demonstrate why the jury cannot be sure of guilt.