By happy coincidence, a week after I was invited
to be a trainer at the annual Florida Bar Training Programme – where state
attorneys and public defenders are trained, along with four English junior
barristers – I read Edward Henry QC’s fascinating article about US trial
lawyers (Counsel March 2019).
Simultaneously, as a QC based in Plymouth, I was
researching 17th century law (including use of the ‘grand jury’ in the Bideford
Witch Trials of 1682) for a book to celebrate next year’s 400th anniversary of
the sailing of the Mayflower. Legal concepts customary to a 17th century
English barrister, now obsolete in our courts, are still important features of
the US system. ‘Felony’, for instance, may have long disappeared from English
court-speak but still familiar to us through US courtroom dramas.
As someone whose only ‘knowledge’ of the US criminal
justice system had been gleaned from watching Perry Mason, my interest was
piqued by the opportunity to discuss with Floridian lawyers and judges how our
systems have evolved separately since the Mayflower set sail four centuries
Menage a trois and other curiosities
The 20 judicial circuits in Florida each have a State
Attorney’s and a Public Defender’s (PD) Office. Prosecutors only prosecute;
defenders only defend. The concept of a single attorney both prosecuting and
defending, or being both advocate and part-time judge, was a curiosity for our
A judge, SA and PD are assigned to a ‘division’ by
defendant’s name (eg Division 1: surnames A-E) so the same SA and PD can be
before the same judge for many months at a time. What it might be like to be
against the same opponent, in front of the same judge day in day out: a dream
ticket or stuff of nightmares? Whilst this offers greater predicability, to my
mind a variety of roles, opponents and judges encourages new skills and
flexibility of thought.
Judges are appointed by the Governor mainly from the ranks
of senior SAs, rarely from the PD’s Office, and elected every six years.
Theoretically a non-partisan election, but a judge’s approach to sentencing is
likely to indicate political persuasion.The most senior SA is also elected
(four-year term), as is head of PD’s office. I find this concept offensive to
both the integrity of prosecutorial fairness and to the adversarial system;
exemplified by one PD’s manifesto promising that a police officer’s integrity
would not be challenged by the defence. The counter argument is that elected
officials are more transparent and responsive to public opinion, but the
American judges and lawyers that I met were unanimous in their dislike of this
Full disclosure: rules of discovery
We are all familiar with the American courtroom dramas
where the defendant sits next to their lawyers. To US lawyers, it is
unconscionable that we still seat our defendants in a dock, with dock officers,
regardless of bail status. How, they ask, can a defendant fully engage in the
Once the defendant is charged, the SA will interview
witnesses as will the PD. The PD will usually work with an investigator and can
speak to any witness, prosecution and defence. All statements, regardless of
which side you are on, are subject to rules of discovery. There is no
withholding of defence witness statements.
The prospect of surprises in felony trials is further
removed by the pre-trial deposition stage. An important witness will be
summonsed to court and asked questions on oath without a jury being present. It
is an opportunity to test a case theory before the trial. One American defence
attorney was horrified that we had no such process. ‘How,’ she asked ‘do you
know what the witnesses are going to say? How can you be sure not to ask the
wrong questions in front of the jury?’ Interesting questions.
The requirement for detailed defence statements in the UK
means that the potential for trial by ambush has diminished. Yet the oft
unknown of what a witness will say in chief, let alone in cross examination,
can lead to case resolution at a much later stage than with earlier testing of
Should we embrace this sort of pre-trial hearing, followed
by routine ‘plea-bargaining’, which resolve the vast majority of cases in
Florida? Given that plea bargaining includes not simply a reduction in charge,
but also a prosecutorial offer of a lighter sentence, the incentive to plead
guilty if offered such certainty, even when innocent, must be overwhelming.
US jury selection is extraordinary
A defendant is entitled to trial by jury for all cases
(with some exceptions) including driving under the influence. But not a jury of
12; except for capital offences (Florida still has the death penalty) panels
are made up of six jurors selected for a single case. As in the UK, the police
investigates the case and the SA’s office will usually determine if there is
‘probable cause’. For capital offences, however, the prosecution evidence will
be put before a ‘grand jury’ to determine if there is a ‘true bill’; a
The American lawyers describe as crucial the opening salvo
of a trial: the jury vetting process. It is a process now largely unused in
England and Wales–when was the last time anyone ‘vetted’ a jury beyond reading
a list of witness names?
I find the US jury selection process extraordinary. Each side
can ask for the removal of a potential juror ‘for cause’ as well as using up to
three peremptory challenges. The jurors are questioned individually about their
views on various topics: such as whether they would trust a police officer’s
evidence more than a civilian’s; or more complex questions like ‘On a scale of
1 to 10, how do you feel about the following statement: “It is better to let
ten guilty men go free than to convict one innocent man.”’ If the juror’s
answer shows bias to a particular class of witness, or hesitancy about the
burden of proof, they will be removed from the panel ‘for cause’.
One routine question relates to the defendant’s
‘fundamental right’ not to give evidence. Florida juries are instructed: ‘You
must not view [this] as an admission of guilt or be influenced in any way by
his decision. No juror should ever be concerned that the defendant did or did
not take the witness stand to give testimony in the case.’ Compare that to loss
of the ‘right to silence’ in the UK in 1994 and the inferences that the jury
can draw. Whether we have evolved towards searching for truth and away from the
purist/defendant-has-nothing-to-prove approach still used in Florida, is
another debate in itself.
As a consequence, in Florida, few defendants give evidence,
few PDs practice ‘direct’ examination and few SAs ‘cross’. A juror responding
‘yes’ or equivocally to the routine vetting question: ‘If the defendant does
not give evidence would you hold it against him?’ would not sit on the trial.
Peremptory challenges appear arbitrary. As one PD told me, ‘If a juror “just
looks squirrelly and you don’t like him” you use your peremptory.’ If
challenged, they would have to show, however, that they have not asked a juror
to stand down on unconstitutional grounds.
Jurors are actually encouraged to talk about their
experience and give feedback on the lawyers and judges. They routinely state
that vetting is the least enjoyable part of the case. It is not difficult to
understand why. The juror is being asked to grapple with some conceptually
difficult questions and open themselves up to judgement. I am not sure this
leads to a fairer, less biased jury than our more random selection of 12. Can a
juror really answer truthfully without prior experience of the criminal justice
How the evidence unfolds
After jury selection the SA opens the case: a statement of
facts without emotion and argument. The PD then opens their case, but much more
fully than our simple defence identification of issues. There are also
differences in the way the evidence unfolds in the US court: a few examples.
- First, one of the witnesses must identify the defendant as
the person they are talking about. There is an ‘Oooh’ moment when the victim of
an assault is asked whether the person who assaulted them is in court and they
describe the defendant. All eyes turn to the defendant to see how he reacts.
This is done even when identification is in issue. This seems both unnecessary
- Second, an advocate cannot call any witness a liar – even
if their case is that the witness has lied. Until fairly recently, they
couldn’t suggest a witness was a liar in closing argument. The SAs I spoke to
longed for the drama of calling a defendant a liar!
Both sides can make impassioned closing speeches. Somewhat
extraordinarily, the prosecution has a ‘right of reply’ following the defence
speech. As a prosecutor a second bite of the cherry sounds fantastic; as a
defence advocate, grotesque.
Finally, the judge gives legal directions but no evidential
summing up. It includes a very full explanation of the burden of proof – still
expressed in Florida as ‘beyond reasonable doubt’ (see below). And regardless
of whether the case is tried by a jury of six or of 12, the jury must return
unanimous verdicts – as our jurors did before the Mayflower sailed.
All these fundamental differences impact the way a jury
trial progresses. As legal anthropologists might suggest, whilst our systems
are of the same family they are not necessarily the same species.
Compare this Florida
judge’s explanation of the burden of proof to our own succinct jury
instruction: ‘A reasonable doubt is not a
mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt
must not influence you to return a verdict of not guilty if you have an abiding
conviction of guilt. On the other hand, if, after carefully considering,
comparing and weighing all the evidence, there is not an abiding conviction of
guilt, or if having a conviction, it is one which is not stable but one which
wavers and vacillates, then the charge is not proved beyond every reasonable
doubt and you must find the defendant not guilty because the doubt is