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 ago.

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 US colleagues.

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 process.

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 trial process?

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 the evidence.

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 Mayflower arrival?

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 system?

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 and dangerous.
  • 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 reasonable.’