CRIMINAL LITIGATION WEEK 14 (TRIAL 2- TRIAL PREPARATION AND EVIDENCE)
WEEK 14.
TRIAL 2: TRIAL PREPARATION AND EVIDENCE.
- RULES OF EVIDENCE AS TO
– BURDEN OF PROOF: is a party’s legal obligation to adduce evidence to support his case. It may be legal burden (ultimate) which is fixed by law (e.g. proof of guilt/ingredients of offence which always rests on the prosecution in criminal cases as failure of the accused to testify does not imply guilt-Mbele v The State, -35(6 and 11) CFRN, 135 EA) or evidential[1] which rests on the party that asserts and can shift (e.g. plea of insanity, autre fois, facts specially within his knowledge, intoxication, exemptions or burden imposed by statute, etc.). As the burden of proof lies on the person who would fail if no evidence were given on either side-132 EA.
– STANDARD OF PROOF: the quantum required by law. For crimes, it is beyond reasonable doubt (S 135 EA, Woolmington v DPP). For criminal defence it is on balance of probabilities[2].
– BASIS FOR ADMISSIBILITY OF EVIDENCE: is relevance. In Torti v Ukpabi, the court held that the evidence must have been pleaded and be relevant then the court looks at the question of admissibility.
– COMPETENCE AND COMPELLABILITY OF WITNESSES: competence is the ability of a person to give evidence while compellability is the authority of the court to compel a person to give evidence.
All persons are competent except the court considers that they are prevented from understanding questions put to them or giving rational answers–Section 175 EA. E.g. Looking at intellectual capacity children, insane, etc. except they can understand.
A child (one below 14 years) can give testimony if the court is satisfied (after putting certain questions to him) that First; he is possessed of sufficient intelligence; Second that he understands the duty of speaking the truth-Peter v The State, Mbele v The State, Solola v The State. If he passes the first, he can give evidence but it would not be on oath. If he passes both, then he can give testimony on oath. If the child passes none of the tests, then he is not competent to give evidence. This test also applies to aged people, etc.
COMPELLABILITY: has been defined earlier. Some people are competent but not compellable to give evidence. They include:
– President, Vice President, Governor and Deputy Governor: Section 308 CFRN, Tinubu v IMB Securities.
– Alien and Diplomats (and their family and staff and official staff’s family): Section 1 Diplomatic Immunitites and Privileges Act.
– Accused person: is competent to testify (for himself and prosecution[3]) not compellable to give evidence-Section 36(11).
– Spouse: spouse of the accused is competent and compellable for the accused. Not competent for the prosecution except in sexual offences, violence against the spouse and offences against the property of the spouse-Section 182 EA.
– Victim and Accused’s relations are competent but court should take their testimony with circumscription and caution.
– Counsel is competent but should withdraw if he is likely to be a witness-Elabanjo v Tijani.
CORROBORATION OF EVIDENCE: Corroboration is independent evidence which confirms another evidence-R v Whitehead.
Generally, court does not require a particular number of witnesses to prove guilt except where necessary Section 200 Evidence Act– Mohammed v The State. He need not call all witnesses-Ali v The State.
Corroboration may be required by:
– By Statute/Law: For; – Evidence of accomplice-Section 198 EA; – Unsworn evidence of a child-Section 209(3) E.A; – Treason and Treasonable Felony; Perjury; – Sedition; – Exceeding Speed Limit, Section 201-204 EA respectively; – Breach of promise to marry (Wilcox v Geofrey, Bassella v Stern); – Proof of custom.
– By Judicial Practice: the court should warn itself that it is unsafe to convict the accused on the uncorroborated testimony of: – A co-accused, tainted witness (i.e. a person who has his purpose to serve); – in Matrimonial Causes (Ibrahim v Ibrahim) etc.
Where corroboration is required by statute, non-corroboration can nullify a conviction. Where corroboration is required as a matter of judicial practice, non-corroboration goes to the quality of the evidence/testimony.
COMPUTER GENERATED EVIDENCE: hitherto the 2011 EA, admissibility of electronic evidence was a herculean task. However, by Section 84 (1)-(4) EA 2011, computer generated evidence is admissible provided accurate inputs were fed to a properly functioning computer[4] and the document was produced during a period of regular storage and processing of information and presented by some person who can answer questions about the functioning the said computer.
A Certificate of Compliance signed by a person largely responsible for the device (identifying the document and details of computer and its production) should also be produced-Kubor v Henry Dickson and Anor. FRN v Fani Kayode, Anyaebosi v RT Briscoe.
:: TRIAL ADVOCACY; CASE THEORY AND TRIAL PLAN: trial advocacy is the art and skill of persuasion. To effectively do this, one needs a good case theory (which concisely and logically presents a credible account of facts from the perspective of his client) and trial plan (which is his order of battle)[5].
Note the implication of Section 308 and 309 ACJA and FHC and FCT practice Direction 2013 and 2014 on trial plan. It appears adjournments are now restricted.
:: ISSUE AND TYPES OF SUBPOENA AND WITNESS SUMMONS: both are processes (ISSUED by Judge upon application by parties (or LP)) to compel attendance of witness to give evidence or tender document (habeas corpus ad Testificandum and duces tecum respectively)-Buhari v Obasanjo. 218-219 EA
The Case should be adjourned where deserving to enable witness to be summoned. Magistrate can issue witness summon but not subpoena ad testificandum.
:: PREPARATION OF WITNESSES FOR TRIAL: which is pre-trial briefing… Not coaching but preparing witness.
:: CONTENTS OF OPENING ADDRESS AND DELIVERY: Opening address is a short summary of the facts of the case from the party’s point of view. It is made at the conclusion of arraignment. First by the prosecution, then defence then they are ready to proceed with the hearing. Sc 300 ACJA. Prosecution may call his witness[6] who would be sworn on oath[7]. See generally; Section 200-218 EA
After conclusion of the prosecution’s case, the accused is entitled to address the court, present his case and adduce evidence where required-Section 301 ACJA.
Note the implication of Rule 4 FCT Practice Direction 2014 which deals with pre-hearing protocol.
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[1] In civil cases, the ultimate burden of proof rests on the plaintiff, this may change based on the pleadings and existence of certain presumptions-Johnson v Maja.
[2] Proof in civil cases is on balance of probability but a higher degree (beyond reasonable doubt) of proof may be required where there is an allegation of crime-135.-Agbaje v Fashola; where special damages are claimed, where claim for special interest.
[3] i.e. co-accused. Provided he has pleaded guilty and been convicted before being called by prosecution. is this the only one.
[4] the program is generated in conformity with the state of the art
[5] This is t be drawn up after a careful appraisal of the charge, exhibits, evidence, statutory and judicial required ingredients of the offence, defects and strengths of the case from both sides, probable duration of the trial, questions to be asked in examination in chief and cross examination, fall back strategies opening addresses and so on. This trial plan should be discussed with colleague for possible criticisms and contributions.
[6] Provided that other witnesses should be out of sight and hearing. A witness that refuses to go out can still testify, but the weight to be placed on his evidence would be affected.
[7] Witness may be remanded where he unreasonably refuses to be sworn) Check 205 EA. However 230 CPC allows non-believer to refuse to swear. See generally, Sc 208 EA.
