CRIMINAL LITIGATION: CRIMINAL TRIAL PREPARATION AND EVIDENTIAL ISSUES

N.B: Kindly refer to our post on civil litigation relating to evidential issues because it a little bit similar just slight difference;

1.      Nothing like witness statement on oath in criminal

2.      We have complainant(prosecution) and the accused/defendant as parties

3.      And such other differences we both know

So we try to points out some salient points from the class and little differences from the criminal and civil evidential issues and preparation for trial.

                        CASE THEORY

This is the counsel’s prospective view of the case ha has to handle. It is a summary version of the case, an hypothesis that is yet to be tested and an appreciation of the case. It is based on facts and relevant law. It is like the building plan for the case at hand.

ELEMENTS OF A CASE THEORY

1.      It must be logical

2.      Easy to believe

3.      Simple

4.      It must address the legal elements of the case

FACTORS INFLUENCING A GOOD CASE THEORY

1.      What is the charge against the accused?

2.      What are the ingredients having regard to the statute creating the offence?

3.      What are the facts available to prove this offence?

4.      What are the basic principles guiding this offence?

5.      Are there likely defenses available to the accused in this case?          

TRIAL PLAN

This is the graphic statement of how to actualize the case theory.

HOW TO DEVELOP A TRIAL PLAN FOR A PROSECUTION COUNSEL

STAGE ONE-

• Examine the charge sheet
• The law under which the charge is brought
• List of witnesses
• Proof of evidence
• Exhibits and documents to be tendered

STAGE TWO-

• Outline the ingredients of the offence 
• See whether what you have in the proof of evidence is enough to sustain the charge.

STAGE THREE-Identify the possible defences of your opponent

STAGE FOUR-Draw up the questions you intend to ask in proof of your case and questions to ask in cross examination

STAGE FIVE-Identify and study the case law and statute you may use in court.

STAGE SIX-Plan your fall back options

STAGE SEVEN-Hold pre trial chambers meeting.

                        PREPARING A WITNESS FOR TRIAL

N.B: There is a difference between Client Interview and Pre-trial Interview. For the purpose of Bar Part 2, you must understand that in the Pre-trial Interview, you already know the witness so no need for introduction, your questions should be to prepare the witness for trial.

THINGS TO TAKE NOTE;

1)      If the witness have not being to the court before, you need to inform him/her;

a)      When the courts sits

b)      Dress code (especially Expert witness and the IPO)

c)      The setting of the court.

                                 THE PURPOSE OF PRE-TRIAL INTERVIEW

1)      Acquaint of method of presenting case

2)      Re-collection of what to say

3)      To stay concise and direct to point

4)      Maintain consistency in examination-in-chief and cross-examination.

ETHICAL ISSUES IN PRE-TRIAL INTERVIEW

1)      Pre-trial interview is not for coaching a witness to tell lies or suppress the truth. See Generally RULE 37 RPC

2)      The Prosecuting counsel not to seek to secure conviction at all cost. ODOFIN BELLO V STATE

CALLING OF WITNESS IN A CRIMINAL TRIAL

GENERAL RULE: In criminal trial, there is generally no required number of witness to call to prove a case. See SECTION 200 EVIDENCE ACT. All the prosecution is enjoined to do is to call evidence to establish the crime against the accused.

IN AKPAN V STATE: The court held that;

            ‘The prosecution has no duty to call a village, a community or barrage of witnesses before the court convict an accused person, one witness of truth can result in the conviction of an accused person unless in an offence where corroboration is strictly required’’

   THE EXCEPTIONS;

In SECTION 201-204 AND SECTION 209(3) EVIDENCE ACT, makes provision for instances where additional evidence is required to prove a particular fact or case.

1)      TREASON AND TREASONABLE OFFENCES (SECTION 201 E.A)…. However, in cases which the overt act of treason alleged is the killing of the president or a direct attempt to endanger the life or injure the person of the president, a single witness shall be sufficient.

2)      CHARGE OF PERJURY ..SECTION 202 EVIDENCE ACT

3)      Exceeding the Time Limit; oral evidence plus electronic evidence of the device recording the speed of a moving vehicle.

4)      Sedition (204)

5)      Evidence  of a child: Although, Section 201-204 EA makes no reference to the evidence of a child whether sworn or unsworn. But Section 209(3) E.A clearly provides for corroboration of the evidence of a an unsworn testimony of a child.

SECURING THE ATTENDANCE OF WITNESS

This can be done through;

a)      Witness summon

b)      Subpoena warrant.

c)      Warrant

N.B: Witness Summon is different from Subpoena. Witness Summon is issued to people who are ordinarily a witness in the case and are required to give evidence in that case BUT Subpoena is issued to a person who is not a witness of neither party but a witness of the court…..if you campare the duo in SECTION 177(1) and 188 of ACJL, to be specific in SECTION 188 ACJL on issuance of Subpoena;

            ‘…………..who has not been bound by recognizance to attend as a witness at the criminal session….may be summoned by a writ of subpoena…..’’

We have three types of Subpoena

1.      Subpoena Ad Testificandum: For compelling a witness to attend court to give evidence.

2.     

 Sunpoena Duces Tecum: for compelling a witness to come to court to bring a certain document in his/her possession. The sole purpose is to tender the document and his not liable to give evidence on oath or be cross-examined. OLANIYAN V OYEWOLE

3.     

 Subpoena Duces Tecum et ad Testificadum: Used to compel a witness to come to court to give evidence and also to bring with him/her certain document in his possession.

POSER: WHERE DOES AN ACCUSED PERSON STAY TO GIVE EVIDENCE?

An accused person gives evidence only in the WITNESS BOX unless otherwise ordered by the court. SEE SECTION 180(d)EVIDENCE ACT. BUT never in the DOCK, he can make only statement in the dock.

                              BURDEN OF PROFF

RULE: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. SECTION 132 EVIDENCE ACT.  AND pursuant to SECTION 36(5) CFRN an accused person is presumed innocent until proved guilty. Summing up these two sections together, we can conclude that the burden of establishing the guilt of an accused person lies on the PROSECUTION. READ SECTION 139 & 132 E.A PLUS SECTION 36(5) CFRN

HOWEVER, In EMEKA V STATE: The supreme court held that, the burden  placed on the prosecution may be discharged in any of the following ways;

a)      Confession

b)      Circumstantial Evidence

c)      Direct Evidence

STANDARD OF PROOF: In criminal cases the standard of proof required to establish a particular offence is PROOF BEYOND REASONABLE DOUBT. SECTION 135(1) EA

WHEN THE BURDEN OF PROOF MAY SHIFT TO THE ACCUSED PERSON

GENERAL RULE:  The burden of proof in criminal cases rests on the prosecution and that the burden does not shift.

However, reading the proviso in SECTION 36(5)CFRN recognizes that any law may place some specific burden on the accused person such burden may be found in SECTION 139, 140, 141 OF EVIDENCE ACT. SPECIFICALLY, Section 135(3) EA provides that;

            ‘’if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant’’

OTHER INSTANCES ARE;

a)      Burden to prove Exemption, Exception or qualification SECTION 139 (1) EA, JOHNSON V COMMISSIONER OF POLICE

b)      Facts Peculiarly within the knowledge of the Accused. SECTION 140 EA, OTTI V POLICE, The court held that;

‘’where an accused person is charged with an offence of carrying on business of a money lender without a valid license under the MONEY LENDER ORDINANCE, the burden is on him to establish he had a valid license’’

c)      Defense of Intoxication and Insanity SECTION 139 (1) EA

d)      Burden to prove the Bar Plea of Autre fois Acquit or Autre fois Convict

e)      The Plea of Pardon.

EVIDENCE OF AN ACCOMPLICE

WHO IS AN ACCOMPLICE?

IN POSU V STATE;

            ‘’Accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of crime; partaker of guilt; one who aids and assist or is an accessory’’

FURTHERMORE, IN R V EZEACHI, the court went ahead to give a classification of persons called accomplice;

a)      Participants in the actual crime charged

b)      Receivers of property for which the accused is charged with (stealing)

c)      Participants in other crimes alleged to have been committed by the accused

ALSO, IN SECTION 198(2) EA, a definition was given for an accomplice.

                        ADMISSIBILITY OF EVIDENCE OF AN ACCOMPLICE

RULE: He is a competent witness against a defendant and the court is not precluded from convicting an accused person on the sole evidence of an accomplice.

BUT, the court must warn itself that it is not safe to convict on the uncorroborated evidence of an accomplice. SEE SECTION 198(1) EVIDENCE ACT

CONSEQUENTELY, IN BELLO V STATE; the court held that;

            ‘’the reason for the statutory warning is because the accomplice through his participation in the crime is a corrupt person and may invent an offence to falsely accuse someone of an offence that was committed…….the corroboration required will be another independent piece of evidence or evidence from an independent witness  and not another accomplice

                                                EVIDENCE OF A CO-ACCUSED

WHO IS A CO-ACCUSED?

This is one who is standing trial jointly with another in respect of a particular offence. As a 

GENERAL RULE, he is not a competent witness to testify for the prosecution.

However, in accordance with SECTION 199 EVIDENCE ACT where he gives evidence on his behalf which incriminates a co-defendant he shall not be considered to be an accomplice.

IMPLICATION: IN AJANI V R: Such evidence may be utilized by the court to convict either himself or both of them. AND In KOLAWOLE V STATE: The evidence of a co-acccused needs no corroboration, once it direct and points to the culpability of the accused, then conviction can be based on it.

                        PLEASE NOTE FOR THE PURPOSE OF BAR PART 2

The above submission deals with the co-accused testifying and implicating his fellow accused person. It is slightly different when the testimony is from a CONFESSIONAL STATEMENT, this will depend on the scenario given to us in the EXAM…..the words of MR TIJANI

Where the scenario points to confessional statement of an accused against a co-accused, then your mind will go to SECTION 29(4) EVIDENCE ACT, MBANG V STATE, OYAKHIRE V STATE

The GENERAL RULE is that a confession or admission to an offence of a person is admissible ONLY against the person making it and not the co-accused, and the court shall not take into consideration such statement.

HOWEVER, where it was made in the presence of the co-accused and he adopted it in word or conduct, then it will be admissible. OR When the maker of the statement goes further during trial into the witness box repeats the statement on oath, they become evidence for all purpose and admissible in evidence and the court can act on it.

BUT JUST ON THE SIDE WAY, REFRESH YOUR MEMORY ON THE ADMMISSIBLITY OF CONFESSIONAL STATEMENT TAKING NOTE OF THE FOLLOWING;

1)      The provision of evidence act, that states that it should be made voluntarily (READ SECTION, 28, 29, 30)

2)      It must be direct, cogent and unequivocal to the fact that the accused committed the offence. Mustapha Mohammed & Ors v State.

3)      The peculiar provision of ACJA  under SECTION 15(4);

a)      Be in writing and

b)      Be recorded electronically on a retrievable video compact disc or such other visual means.

c)      Notwithstanding these above rules SECTION 15(5) further provides that an oral confession of arrested person shall be admissible in evidence.

4)      The peculiar provision in ACJL under SECTION 9(3);

a)      The statement is recorded on video and absence of video facility,

b)      The statement shall be in writing in the presence of a legal practitioner of his choice

N.B: Kindly refer to our blog on understanding confessional statement in Nigeria

            EVIDENCE OF AN ACCUSED PERSON

To understand this, you need the combination of  SECTION 175(1) TO SECTION 180 (a) EVIDENCE ACT, THEN USE SECTION 36(11) CFRN TEHN END WITH SECTION 181 EVIDENCE ACT…..Please read.

RULE: Generally an accused person is a competent witness for the accused, but never a competent witness for the prosecution, even when he is charged alone.

It settled that he is not a competent witness for the prosecution, and even cannot be compelled by the prosecution to testify. Now for the Defense thou he is a competent witness, he cannot be compelled to testify as he reserves the right not to testify for himself.

If you read both SECTION 180(a) EVIDENCE ACT and SECTION 36(11) CFRN you will see that an accused person is not a compellable witness, in the evidence act it says that;

            ‘’a person so charged shall not be called as a witness except upon his own application..’’

            In the Constitution it says that;

            ‘’No person who is tried for a criminal offence shall be compelled to give evidence at the trial’

NOW, in conclusion where the accused person has decided not to give any evidence during the trial, the evidence act in SECTION 181 provides that;

‘’…the prosecution comment on the failure of the defendant to give evidence but the comment shall not suggest that the defendant failed to do so because he was, or that he is guilty of the offence charged’’

                                                                                    TO BE CONTINUED!!!!!!!

PRAY HARD

EAT HARD

REST HARD

READ HARD….LAW SCHOOL IS A PLACE TO BE BUT NOT TWICE!!!!!

N.B: Do you have any write up for the purpose of Bar Part 2, send to our email solaope2020@gmail.com, accompany it with your full name and campus and picture if you want to. THANKS!!!!