The principle is that each side is free to present its case to the judge [or on the case of the Circuit Court and Central Criminal Court, to the judge and jury. The jury (or where there is none, the judge) decides the facts based on the evidence presented. It must be proved beyond a reasonable doubt that the accused committed the offence. A reasonable doubt is a sensible and plausible defence, not a merely fanciful or theoretical possibility.
In a Circuit Court case, the judge presides over the hearing. His purpose is to ensure a fair trial and vindication of the right. He decides all questions of law. He instructs the jury on the law that applies to the case. He may decide that the prosecution’s case is insufficient and rule that there is no charge to answer.
Each side presents its evidence. The prosecution presents its evidence first. Each witness is led through his evidence by the side which has called him. In a summary case, the Garda concerned who may be prosecuting will give evidence and the judge may play more of an adjudicative and intervening role.
The accused may then choose to call his witnesses. Each side may cross-examine the other side’s witnesses. This means asking questions that undermine the credibility or weight to be given to their evidence.
Evidence is given under oath. This means it is sworn evidence. Giving false evidence constitutes the crime of perjury which is a serious offence. There are alternatives to give evidence on oath, where a person confirms that he does not have a religious belief. An affirmation is given in place of an oath.
Cases are determined largely on oral evidence. Written evidence may be given or read in court where it is admissible. It is a fundamental principle that unless both parties consent, witnesses giving evidence must be available for cross-examination. Some exceptions exist to the hearsay rule some of which apply only in criminal cases.
The evidence as presented at the trial or the summary hearing, determine the facts on which the judge or jury make their decision. Evidence may be given which ends to prove the relevant facts. The offence is proved by evidence of facts that constitute the offence and prove that is was committed by the accused.
The person accused of an offence is presumed to be innocent. This must be respected throughout the entire procedure. The prosecution will seek to present and bring forward facts that prove the accused’s guilt. The accused in turn will attempt to bring forward facts showing his innocence of the charge concerned.
Generally, hearsay evidence and opinion evidence are not admitted. An admission against interest is admissible. This is where a person makes his statement adverse to his own interest; effectively a confession. Certain matters may be admitted in advance and may not require to be formally proved.
Generally, the prosecution calls its witnesses first. The prosecution’s lawyer or representative elicits the requisite facts and evidence sufficient which he claims are sufficient to prove the accused’s guilt of the offence concerned. He may not ask leading questions. Leading questions are questions that suggest a “yes” or “no” answer.
A person is entitled to refuse to give evidence in a criminal trial and the prosecution or jury must not take into account the failure to give evidence as a factor in determining guilt. A person need not give evidence, even if the circumstances look as if the explanation is called for. He is to be presumed guilty. There are some limited exceptions in the case of certain types of offences.
In the case of a jury trial, a jury of 12 is empanelled from the Electoral Register. Attendance on foot of a jury summons is mandatory. Certain persons may be excused on certain grounds. Certain persons are automatically excluded because of the nature of their job. Certain persons may be excused if there is a good reason for excusing them.
Jury members may be challenged by either party in criminal or civil proceedings. A certain number of objections without cause is permitted for which no reason is required. Seven jurors may be challenged without cause, by either the prosecutor or the accused.
Any number of jurors may be challenged for cause. This may be, for example, where it is shown that they have a particular bias in relation to the matter concerned.
A jury generally has 12 members. The jury hears and determines the facts of the case based on the evidence presented by the prosecution and defence. Where there are questions as to the admissibility of evidence, the issue of admissibility may be decided by the judge in the absence of the jury.
Judge and Jury Role
The judge reviews the evidence for the jury and instructs them on the law. He charges the jury and instructs them on questions of facts on which they must decide to determine guilt or otherwise. He may instruct the jury on alternative verdicts or special verdicts. He considers evidence relevant to sentencing and imposes sentence.
The judge decides legal matters and gives a direction to the jury. If the judge believes that there is no basis upon which any jury may convict, for example, no evidence has been offered in respect of an element of the offence, he must direct an acquittal or withdraw the case from the jury.
The judge summarises the case and instructs the jury on the law and on the matters upon which it must make findings (of fact). The jury determines whether the person is guilty or not, by ty applying the facts as they find them, to the law as explained by the judge. This is their verdict.
In criminal cases, the verdict must be given unanimously, it may be given by 11 or 10 members, subject to certain safeguards and periods of time having elapsed.