THE ROLE OF A JUDGE IN COURT

By Felix Engsalige Nyaaba

“The judge is independent and only enforces rules of evidence and procedure.” (Peter Alderson, ILS, Australia).

In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.

The judge plays the role of an umpire supervising and enforcing the rules of the contest. It is his or her responsibility to determine which evidence may be admitted and to ensure that the acknowledge d rules of evidence and procedures are followed.

Such rules are required as the initiative for the case presentation rest with the competing parties. Their determination to win the case must be control by an impartial representative of the legal system to ensure a fair and just trial.

As Lord Greene, a County Court judge of Australia said, “Justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations.”

EVIDENCE WHICH IS CONSIDERED INADMISSIBLE

The judge will rule certain evidence inadmissible if the accuracy or relevance to the case is questioned by the opposing party. Hearsay evidence cannot be given, as this is the presentation of secondhand information.  A witness is merely repeating what someone else has said they have seen or heard. An accused‘s previous criminal record can only be introduced voluntarily, as it may prejudice the jury’s attitude to the current alleged crime if the case is been tried on jury.

Opinion, other than of an expert, may not be admitted, nor may copies of documents if the originals are obtainable.  If inadmissible evidence is presented in a hearing with jury, the presiding judge may ask the jurors to disregards the evidence when considering their verdict.

RULES OF PROCEDURE

The rules of procedure, also supervised by the judge, are the officially recognized and formal steps to be followed in civil or criminal proceedings. For example, there are three possible steps to the questioning of a witness: examination-in-chief, cross-examination by the opposing counsel, and a possible re-examination by the original counsel who had called the witness. As a general rule, the judge must ensure that, counsel calling a witness may not ask leading question of that witness.

THE JUDGE DECIDES QUESTION OF LAW

The judge is also required to rule on and give guidance as to the applicable law. While the primary responsibility of arguing the law applicable to the facts of the case rest with the two opposing counsel, the judge may request them to present their arguments on a particular precedent if he or she believes it may have a bearing on the  subject in dispute  or current case but been overlooked by both parties. The jury, if present, will also determine the facts.

The judge sums up the case for the jury members where applicable before they retire to consider their verdict. The judge will explain the elements which must be established to prove guilt or liability in the case before the court.

He or she will also explain the concepts of ‘beyond reasonable doubt’ and ‘on the balance of probabilities’ to ensure the jury understand the standard of proof required.

JURIES ARE RARELY USED

The jury is merely a ‘fact-finding tool’ which may be used in certain circumstance. A jury is never used in the Magistrates’ Court and is never used in criminal cases heard in the higher courts where the accused pleads guilty. A jury is never used in the Circuit Court or High Court in appeal cases. In fact a jury is not used frequently in our country except in murder and related cases. In criminal cases a jury will only be used in the High Court when the accused pleaded not guilty.

In a criminal case the standard of proof which must be established by the prosecution is beyond reasonable doubt. If there is any reasonable doubt the accused must be found not guilty. It is a high standard because the implications of a guilty verdict and possible jail sentence are serious. Also, in the eyes of our law the accused is innocent until proven guilty. The value or weight of evidence required in a civil case is less arduous. The judge must believe that one Party’s version of the law and facts are more likely to be correct on the balance of probabilities than that of opposing side.