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Arbitrary and Capricious: A tale of two legal systems

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I recently had the opportunity to view a criminal trial in the United Kingdom. Now I don’t practice criminal law, so this post is off topic for me. But I was so struck by the differences in the two systems, even though they grew out of the same legal traditions, I thought it was worth the sidestep.

Generally speaking, the cases proceed in the same order with some very notable differences. Those differences start right at the outset of the case.

Legal representation

 In the United States, we have lawyers. In the United Kingdom the legal profession is broken down into two distinct disciplines: solicitors and barristers. While a US lawyer will often prepare all elements of her case, including witness interviews and preparation. This isn’t the case for in the UK. A solicitor is basically a lawyer who deals with the general public, while a barrister is a lawyer who specializes in court work. The solicitor may do all the preparatory work for the case, but the barrister is the one who is going to don the wig and gown (yes, they actually do this) and argue the case before the judge. There are efforts in the UK to diminish or do away with the distinction between barristers and solicitors but since we love our legal traditions on both sides of the pond, I suspect doing so will be a long time coming.

Another huge distinction in how the judicial system works in the two countries is the “witness preparation” portion. In the US, I would be committing malpractice if I didn’t discuss the details of the case with my client and prepare clients and witnesses to testify, including possibly practice exam and cross examinations with that witness. A UK barrister, on the other hand, cannot discuss the case with a client or witness. We each agreed that the other’s version of this rule was insane.

American criminal cases rely heavily on the plea deal where a criminal defendant agrees to accept responsibility for a lesser crime in return for a lighter sentence. There is no plea dealing in the UK system. A criminal defendant can plead guilty to the charges at the initial hearing in the hope of receiving a lighter sentence or can risk trial.

Court Layout

The “well of the Court” is where the court proceedings take place. The biggest difference between the two layouts is the location of the criminal defendant. In an American criminal case, a defendant has the right to “assist with his defense,” which includes consulting with his attorney during the case. As a result, the defendant is seated next to his counsel. In the UK a criminal defendant is seated in a semi-portioned area known as the “dock” with a custody officer (for the Americans, read that as sheriff, deputy or other court security officer). In the case I observed this meant the defendant was about 15 feet away from their barrister.

Trial time/ Scheduling

This seems like a small thing but this one factor added days to our trial. We couldn’t figure out why the trial we’d be present for had an 8-day trial estimate. While there were up to a total of 8 witnesses, two would testify by pre-recorded video so we knew how long that would take, several had given written statements that would likely be read in, and there were stipulations for much of the evidence. On an estimate for the American Courts Matt (my husband and a criminal defense lawyer who handles similar cases in the US) practiced in this would have been a 3-day trial. Then it all became clear.

Most of the courts where I practice in hear cases from 9 am – 5pm, with two breaks and a one-hour lunch. Trials generally start at 10 am. The Court generally has an hour before the trials start to handle non-trial matters. There is also, generally, a “duty” or “on-call” judge to handle bond motions or other urgent matters so trials aren’t disrupted once they start. When there’s a

jury involved, the Court is more likely to start the case a bit earlier, either 8:30 or 9 and go a bit later, up to 6 pm to reduce the time the jurors must be away from their regular lives.

In this UK trial, the Court didn’t start hearing any matters until at least 10am, and in theory took the same 15-minute breaks and 1-hour lunch, except it stopped at 4:15 pm every day. At minimum we lost 45 minutes of trial time a day compared to the US system. But then, our poor judge didn’t just have our jury trial on his schedule. With the exception of the last day when the jury was to deliberate, we were never scheduled to start before 11 am and rarely started before noon. If we had 3 hours of trial time on a given day, we were doing well. Part of this was the Court, like all courts, was horribly backlogged because of the COVID related shutdowns and part of it was the Court didn’t protect its trial dockets the way the US courts I practice before do. We stopped one day at the 1 pm lunch recess so the Judge could hold a sentencing that afternoon. We stopped another day at 3:00 pm because the Judge had conflicting appointment. So, a 3-day US trial became an 8-day UK trial.

Defendants’ Rights

The Right to Remain Silent.
In the United Kingdom there is no equivalent to the American 5th Amendment right to remain silent. In fact, that right was taken away approximately 20 years ago according to a Barrister we spoke with. An accused must give a police interview in the UK.

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The Jury

Selection.
This was another huge area of difference. In the US, counsel are given a list of the prospective jury pool and their biographical information, age, address, gender and occupation in advance of the trial date. Counsel are allowed to ask them questions related to the case to determine if the potential jurors have any connections (like knowing the alleged victim or defendant), being a victim of a similar crime or knowing a victim of a similar crime, knowledge

of the case through the media, preconceptions or beliefs that might bias them in hearing the matter in a process called voir dire. Each side can dismiss or “strike” an unlimited number of potential jurors for “cause,” meaning potential bias or connection with the case, and a certain number for any reason as long as that reason isn’t discriminatory. In highly publicized matters, jury selection can take days or weeks and may run through hundreds of potential jurors.

In the UK case, the usher brought down 15 potential jurors and called 12 to the jury box. The Defendant, all alone in the Dock, was then asked to voice any objection he had to the individual as their name was called and before they read the oath. The Defendant’s barrister was 15 feet away and had no information upon which to or could advise him about whether to strike a juror. Needless to say, those first 12 people became the jury.

Train spotting.
As a Fairfax trial attorney, I watch my jury very closely to see what evidence is making an impact, which points they seem confused on and where my case might be in trouble or hitting a home run. I often have an idea of how my jury is likely to vote before they leave the courtroom to decide the case. Jury selection consultants are an industry in America and they work on criminal and high stakes/ complex civil cases.

After each day’s hearing, Matt and I would compare notes on the jury’s reactions and the likelihood of judgment for each side by juror just as we would do in an American trial. Juror #7 really had us worried until that juror sat back and shook their head in a vehement “no” to part of the Crown’s case. Juror #10 was even more worrying. Until that juror rejected a different piece of a critical Crown witness’s testimony. Juror #10 went to lunch with Jurors # 3 and 4 so we knew had a cabal that would likely vote together.

When the jury was deciding the case, the defense barrister had no idea what had been happening with the jury. She couldn’t have. The way the courtroom was set up both barristers had their backs to the jury for all but their opening comments and closing statements. She was

floored that we had studied the jury and had each juror’s reactions to each critical piece of evidence analyzed.

Presentation of the Other’s Legal Theory

One of the things that had me scratching my head during the case was the Defense Barrister asked all the witnesses for the Crown questions like, the Defendant “denies this happened, is it possible that you made this up?” Of course, the witness answered, “no.” Similarly when the defendant took the stand, Crown Counsel asked, “isn’t it true that you” committed this crime? Of course, the defendant answered, “no.” It was mind-boggling until much later in the case during the Court’s summation, more on that in a moment, when the Judge explained that each side had to “put the question” to the other side’s witnesses.

In other words, each side had to ask the other to accept or reject the opposing side’s position on the main dispute! So, for a theft case, the question from Crown Counsel to the accused would be something like, “Do you agree with the Muffin Man that you stole the cookie from the cookie jar?” The Defense would then ask the Muffin Man, “Do you agree with the Gingerbread Man that you miscounted the cookies?” While the answers to both questions should be “no” (otherwise why were we in court?), the questions must be asked.

Summary of the evidence

British criminal trial procedure also differs from American procedure in a very marked way. After the closing statements by the Barristers, the judge summaries the evidence for the jury. The judge can go into as much or as little detail as the judge deems appropriate and can emphasis portions of the evidence. For our 8-day trial, the judge took 3 hours to summarize the evidence! There is no American counterpart.

Verdict

In the US, a verdict must be unanimous. All 12 jurors must agree that the defendant committed the crime or that the government did not prove that the defendant committed the crime “beyond a reasonable doubt” – “a doubt for which you can state a reason.”

If a jury can’t agree, then a judge can give them an instruction to help break the deadlock but one holdout can create a mistrial known as a “hung” jury.

This isn’t the case in the UK. The ideal is a unanimous verdict. When the jury can’t reach a unanimous verdict in the UK, the judge there can accept a “majority” verdict. If at least 10 of the jury are “sure” of guilt or that the defendant is “not guilty” than the judge may accept the majority verdict.

Cordiality

This is where I must take my hat off to the Barristers and say the UK has it over the American system. Civility is baked into the British system. Even in the words they use to describe the trial phases. In the US, it’s opening and closing arguments. In the UK, these are the “opening comments” and “closing statements.” Crown counsel and defense counsel share a very long table. In America, each side has its own table. A bit of a difference in the approaches, yes?

We had a major issue arise where the detective failed to get some critical evidence despite certifying she had, and the absence of this evidence, discovered days before trial, harmed the defense’s case. In the US, this could have been grounds for dismissal of the case for prosecutorial misconduct and, in severe cases, may have resulted in the case never being brought again. What happened next, rather than fireworks and shouting, was an amazing display of professionalism and cooperation.

The barristers and detective worked together to get the missing information to let the case go forward. The result? It took two days to get the missing records and call a witness back to testify about information in the records. That witness suffered a devastating cross-examination that likely won the case for the defendant.

Even when calling the alleged victim out as a total liar, the defense barrister was unfailingly polite. And I have to say, her cross-examination was all the move more devastating

for it as she caught him in lie after lie with the very British, “isn’t it possible that you made the allegations up because…?” rather than a brusque American, “isn’t it true you lied because… ” – confrontational versus polite.

When the defense barrister asked the jury to contemplate an uncomfortable piece of evidence, she apologized for it and said to the effect, “I’m sorry to have to ask you to consider this, but…….” as a way of diffusing potentially harmful evidence and showing the jury why there was reasonable doubt. It wasn’t a tool or a gimmick. She was genuine about her own discomfort in asking them to consider uncomfortable alternatives.

I have to say, if there’s one tip I’m taking from my UK trial experience, it’s this one: being unfailingly polite is not only the best approach, but also so very effective. I was in the presence of a master and months after the experience remain awed by her craft. It was a privilege and an honor to watch her work.

Just like my post on how the law changes the differences between the UK and US systems shows the differences in what the two related but different cultures value and how those values have impacted the legal system. I’ll let you decide what the two systems seem to value. But isn’t it interesting how very different two systems that grew out of the same legal culture have grown over the years?

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