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Summing Up

A discussion in continuing in New South Wales around on summing up in a jury trial.

At the end of a trial, counsel for the Crown and the Defendant have the opportunity to address the jury about what evidence they should accept or reject, and what verdict they should return. The judge then “sums up”.

A summing up would usually provide directions about the law as it applies to the trial, provide a general summary of the evidence that the jury have heard, and then summarise the arguments presented by counsel.

The problem is that over time the summing up has mushroomed to the point where it is not uncommon for the judge to take over a week to sum up in a long trial. Even in shorter trials of a week or two, the summing up with often go for a day or longer.

This creates obvious problems. Jury directions are complicated and difficult to follow. Juries, being by their very nature laypersons, are generally inexperienced in legal matters. Jury research has shown that juries have commonly reported that they found the summing up difficult to understand.

As a result, many judges now favour supplementing their summing up by providing written directions to juries. These directions can be taken in the jury room and then reviewed as the jury deliberates.

This is a partial fix, but many argue that the more appropriate option is to work on simplifying the directions to make them easier for the non-lawyers on the jury to understand.

Whilst this is easy to agree with in the abstract, the devil is (as always) in the detail. Each jury direction exists for a reason, intending to address a particular problem or concern. Simplifying directions risks prejudicing either the prosecution or the defence, to the detriment of justice generally.

Fundamentally, juries need directions from the judge as to the relevant law. Particularly in longer trials, juries are assisted by a summary of the evidence. The difficulty for a judge is to find the balance between assisting juries and drowning them in information.

Time will tell whether such bodies as the Law Reform Commission are able to provide guidance to the courts and the legislature as to how the process of summing up can be improved.

Image Credit – Iakov Filimonov ©

Written by Andrew Tiedt on May 20, 2018

Andrew has spent many years building a reputation for high quality legal advice and representation. His experience and ability means that his clients are always in safe hands. View Andrew's profile

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