Judge-Alone Trial
A judge-alone trial is dealt with by one judge. So there is only the one person sitting as the decision-maker in the case. That is the main point of difference to a jury trial, which usually involves a jury of 12 people.
There are opportunities for the prosecution and defence to address the judge at the beginning and ending of the case, but those are not typically as involved as opening and closing addresses in jury trials. When I say ‘prosecution’ and ‘defence’ I tend to mean the lawyers representing those two sides of the process. It is possible for defendants to represent themselves in court, but not recommended.
There is usually less of a delay to reach judge-alone trials than jury trials, and judge-alone trials tend to proceed more quickly and with less formality than jury trials.
The burden of proving charges to the high criminal standard of ‘beyond reasonable doubt’ remains with the prosecution just as it does with jury trials. ‘Beyond reasonable doubt’ means to be ‘sure’. So, for something to be proved beyond reasonable doubt, the judge or jury must be sure about it.
A potential down-side of having a judge-alone trial is that it could be easier for the prosecution to prove guilt in a judge-alone trial: There is a perception that it can be easier to convince one person of guilt than 12 people. That perception might make sense from a mathematical point of view, but it does not account for the wide variety of factors in play in any one case. In some cases it may well be easier to convince 12 inexperienced members of the community of guilt than one judge with 30 years of familiarity with criminal cases.
Judge-Alone Trial Process
The typical process of a judge-alone trial is as follows.
This does not deal with ‘multi-accused’ trials, where there is more than one defendant. The process is more complicated in multi-accused trials. Key matters still feature, but not necessarily in the same way or in the same order as set out here. There are usually additional components to multi-accused trials as well.
1. Attending court. If you are on bail, then please attend court at the time required. You should be advised of the time earlier in the process. If you are unsure you could either call the court or speak with your lawyer. The risk of being remanded in custody during the course of a judge-alone trial is less than it is for jury trials. However, you may still be detained pending sentencing if you are convicted.
Please see comments below, in respect of the jury trial process, as they relate to:
a. putting your affairs in order before trial;
b. taking a book to read;
c. taking prescriptions or medications with you;
d. making any special care arrangements well in advance of trial (i.e. for disability access; hearing/communication assistance; interpreters or the like); and
e. choosing what to wear to your trial.
If you are remanded in custody earlier in the court process, while awaiting trial, then you can expect to be brought to court in person for your trial.
2. Openings. The prosecution will confirm the charges before the court. There may be preliminary matters to address. The defence may also have something to raise with the judge at this early stage. These are not usually as structured or lengthy as openings in jury trials. An order excluding witnesses may be made at this point, meaning that witnesses in the case are not allowed to sit in the back of the court and hear evidence before they go up to give their own evidence.
3. Prosecution evidence. The prosecution has the burden of proving charges beyond reasonable doubt, so they are required to go first and put their evidence before the court. That tends to involve calling witnesses to enter the witness box in the courtroom and give their evidence. There are other ways for evidence to be put before the court, but having witnesses give their evidence in the witness box is the most common method.
The defence have an opportunity to question prosecution witnesses by way of ‘cross-examination’. Please note that self-representing defendants are not allowed to cross-examine complainants in certain kinds of cases, such as some sexual cases. ‘Complainants’ are the people who say they are the victims of crime. They are called ‘complainants’ at this stage of the process. If a charge is proved at trial then they are called ‘victims’.
The process of dealing with prosecution witnesses goes like this:
a. The prosecutor calls a witness and asks them questions in order to prove a charge. This is called ‘examination in chief’.
b. Then the defence has an opportunity to ask questions of the witness. This is called ‘cross-examination’.
c. Then the prosecutor has an opportunity to ask questions to clarify anything arising from cross-examination. This is called ‘re-examination’.
d. Once re-examination has finished:
i. The judge might ask any questions they think are important (and ask the parties whether there is any issue arising from those questions. By ‘parties’ I mean the two sides involved in the case – the prosecution and the defence.)
ii. The witness is then ‘stood down’, meaning that they can leave the witness box.
iii. The prosecution then calls its next witness (if it has other witnesses) and the process of examination in chief, cross-examination, re-examination and judicial questions repeats.
4. (Potential) dismissal of charges. If the prosecution is unable to prove a charge with its own evidence, then the defence may ask for the charge to be dismissed.
5. Defence evidence. As a defendant you are not required to give evidence or call evidence in your own defence. It is for the prosecution to prove guilt. Ordinarily it is not for you to prove your own innocence. However, if you are running a somewhat unusual defence such as insanity, then you may have a burden of proof to discharge.
You should keep an open mind about giving evidence or calling evidence (such as calling other witnesses) in your defence. You should keep an open mind up to the point where the prosecution has closed its case against you and any application to dismiss charges has been dealt with. Then you can make a fully-informed decision about what to do.
You may have a strong preliminary view about whether you will give or call evidence in the lead-up to the trial, but a lot can change: Witnesses might be unavailable; witnesses might not say what you expected them to say; or you might realise or remember something of significance that changes your mind about what you want to do.
Even if you are of a firm view that you do not what to give or call evidence at trial, you should still consider what you might want to put before the court if you changed you mind. You should carefully talk this over with your lawyer if you have one, and do that many months before the trial if possible. That is so things like private investigators or forensic enquiries can be arranged in time for trial if they are appropriate. Ideally, you would have this kind of conversation with your lawyer right at the start of your case before you enter pleas to charges.
Once the prosecution has closed its case, and any application for dismissal of charges has been decided by the judge, then you will be given time to think about whether to give or call evidence. You can have a private conversation with your lawyer before making a decision. As I say, you should have already given serious consideration to this matter and made a preliminary decision well before the trial starts. Therefore it should not take long to consider whether anything has occurred in the course of trial that is so significant as to change your mind.
If you do decide to give evidence or call evidence, then the process of evidence in chief, cross examination and re-examination is similar to when the prosecution called evidence as part of its case. But the roles are reversed:
a. The defence calls a witness and asks them questions in order to try and make out a defence - ‘examination in chief’. The ‘witness’ could be the defendant or someone else who can give evidence to help make out the defence.
b. Then the prosecution has an opportunity to ask questions of the witness - ‘cross-examination’.
c. Then the defence has an opportunity to ask questions to clarify anything arising from cross-examination - ‘re-examination’.
d. Once re-examination has finished, then:
i. The judge might ask any questions they think are important (and ask the parties whether there is any issue arising from those questions).
ii. The witness is then ‘stood down’, meaning that they can leave the witness box.
iii. The defence calls its next witness (if there are other witnesses) and the process of examination in chief, cross-examination, re-examination and judicial questions repeats.
The defence should advise the judge when all defence evidence has been given.
6. Closings. Once the defence evidence is finished then the prosecution and defence are invited to make submissions on matters of law (and only law). This differs from closings in a jury trial where the parties tend to make submissions to the jury on matters of evidence as well as law.
7. Decision. After closings it falls to the judge to decide the case. The judge may give an ‘oral decision’ (a spoken decision) in court immediately after closings, or after taking some time to consider the law and evidence involved. The judge must explain the verdicts reached, meaning that if you are found guilty then you will be told why that is. The requirement to give reasons is something that is not present in a jury trial: The jury just says whether they find you guilty or not guilty (or other special verdict as the case may be).
If the judge acquits you of all charges then you will be free to leave the courthouse (so long as you do not have any other charges that are being dealt with separately).
If the judge finds you guilty then the judge will decide whether to deal with you immediately or remand you through to a separate hearing at some future date. Either way, the matters the judge would need to decide will include:
a. whether to enter convictions; and
b. as to the appropriate sentence if convictions are entered.
If you are remanded for a separate hearing then the judge will need to decide whether you are allowed out on bail in the meantime. Also, if the matter is put through to a separate hearing, then you could expect to hear from your lawyer between the trial and that hearing. That would be in order to prepare submissions and materials relevant to conviction and sentencing.
Please note that this brief guide only deals with trial procedures, and so it comes to an end at this point in respect of judge-alone trials (being the point where a decision is given). It does not cover sentencings and other parts of criminal cases.
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