The criminal trial. What does it involve?

All the months of work preparing a criminal case have been building towards this moment. The trial.  Consider familiarise yourself with the courtroom before the trial. The prosecution regularly bring prosecution witnesses to court to show them around.   At the plea hearing you’ll see what a court looks like and how it works.  Sometimes there are further hearings prior to the trial and again these are great opportunities to become familiar with the environment.  There is a court etiquette you will learn to adopt such as standing when a Judge enters or leaves a courtroom.


The nature of trials mean that preparation is key. You have to prepare because the process moves relatively quickly. The prosecution cannot rely on evidence at trial they have not given to your lawyers to consider. But that evidence must be heard in court for it to become evidence against you in the trial.


In the Magistrates’ Court the trial will be presided over by a District Judge (qualified judge) or a panel of lay magistrates.  For a Crown Court trial, a Judge is in charge of the courtroom and makes all legal decisions but the factual decisions as to whether a person is guilty or not guilty is made by the jury.


A jury will be made up of 12 people who have been called to for jury service. Objections to jury members are very limited and you will be advised by your lawyers about this process.  The jury have strict rules they must adhere to and there can be heavy penalties for jurors who break the rules.


A trial is separated into two parts, the first part is the prosecution case and the second part is the defence case.  The prosecution bring the case, the burden is on them to prove the alleged offence and prove it so the judge/ magistrates or jury can be sure. If they cannot be sure they must acquit the defendant.


The prosecution will present their case by calling the witnesses they rely on to prove the alleged offence. The witness will give their evidence to the court through being asked questions by the prosecutor. Once the prosecution have finished asking questions the defence have the opportunity to question that witness (cross examination). They will ask questions designed to elicit evidence that will either undermine the prosecution case or support the defence case.


Some witness statements might be read out and that will be because the defence accept the evidence and have no questions to ask that witness. Often a defendant might not realise that the transcript of the police interview he or she gave is in fact part of the prosecution case. It will be read out so the court can hear what was said. When all of the prosecution witnesses have given evidence, the defence case begins. Defence cases often take less time that the prosecution case because of course the burden of proof isn’t on the defence.

The defendant can give evidence and will be the first person to give evidence as part of the defence case.  A defendant cannot be made to give evidence, if they don’t give evidence the tribunal can draw such conclusions as they think appropriate from that failure to give evidence. This is a decision you will discuss with your lawyers. The defence lawyer will ask questions to draw out the defendant’s evidence (or the defence witness’s evidence) and when they are finished the prosecution have the opportunity to cross examine them. If a defendant has no previous convictions they can also call witnesses about their character and not just in relation to facts of the case. This is something you will need to discuss with your lawyers.


Once all of the evidence has been heard each side will make a closing speech essentially bringing together their case. It is a plea of persuasion, the prosecution setting out how they have met the burden and standard of proof and the defence setting out why they have not and why the defendant should be acquitted. The prosecution will go first with their speech, then the defence.  However, the last person who will address the jury in the Crown Court is the Judge. The Judge’s role is to sum the case up, summarising the evidence and the law and providing the jury with a route through to finding their verdict.


Once the jury/ judge or magistrates retire they will be only return if they have a question about the evidence they’ve heard or have a verdict. Of course, if they have been deliberating a long time and it is the end of the court day they will return in order to be sent home for the night.


A jury of 12 people will always be asked to find a verdict on which they all agree.  There may come a point when the Judge directs they can return with a verdict on which a majority agrees (if you’d like more information see my factsheet on how long a jury can take to reach a verdict and how they reach their verdicts). The jury room is sacred and we will never know how they deliberated and what they said, only the verdicts they reach.


Having to be sure of someone’s guilt before they can be convicted of a criminal offence is the highest burden we have in law. Even if the tribunal of fact think it might have happened the burden has not been met.  Even if the tribunal conclude you definitely didn’t commit the offence they are only obliged to return a verdict of not guilty.  We don’t have a system of guilt or innocence, only guilty or not guilty.



Final practical issues

Trials in the Magistrates’ Court are often quite short, it is unusual if they last several days, often they can be scheduled to last for 1 – 2 hours. Crown Court trials are much longer but how long they take depends on how much evidence is to be heard.


Courts sit usually from 10 – 4pm or 4.30pm. There are breaks in between particularly in the Crown Court as not many of us are used to concentrating for such long periods of time. Of course, outside of that time, the Judge and lawyers will be working and witnesses or defendants are usually  required to attend court before 10am.


Courts are open to the public (expect the youth court) and members of the public can watch trials. Any witness who is due to be called to give evidence should not watch the trial until they have given their own evidence. The only witness this does not apply to is the defendant, who will watch the entire trial.


Finally, for anyone about to embark on a trial a final tip, have paper to write down any notes you want to make but also listen to the evidence, that’s what the jury does.