1.5.1 – Charge: Decide Solely on the Evidence

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Introduction: What is Evidence?

I have told you that it is your task to determine the facts in this case, and that you should do this by considering all of the evidence presented in the courtroom. I now need to tell you what is and what is not evidence.

The first type of evidence is what the witnesses say. It is the answers that you hear from the witnesses that are the evidence, and not the questions they are asked. This is important to understand, as sometimes counsel will confidently include an allegation of fact in a question they ask a witness. No matter how positively or confidently that allegation is presented, it will not form part of the evidence unless the witness agrees with it.

Add the following shaded section if the judge believes it is necessary to further explain this point:

Let me give you a simple example that has nothing to do with this case. Imagine counsel says to a witness "The car was blue, wasn’t it?", and the witness replies "No, it wasn’t". Given that answer, there is absolutely no evidence that the car was blue.

Even if you do not believe the witness, or think he or she is lying, there is no evidence that the car is blue. Disbelief of a witness’s answer does not provide evidence of the opposite. To prove that the car was blue, there would need to be evidence from some other source, such as a photograph or the testimony of another witness.

Of course, if the witness had instead replied "yes, it was", there would be evidence that the car was blue. In such a case, the witness has adopted the suggestion made in the question. However, if the witness does not agree with that suggestion, the only evidence you have is that the car was not blue.

The second type of evidence is any document or other item that is received as an "exhibit". The exhibits will be pointed out to you when they are introduced into evidence. When you go to the jury room to decide this case, some of the exhibits will go with you for you to examine. Consider them along with the rest of the evidence and in exactly the same way.

Add the following shaded section if any formal admissions are likely to be put before the jury:

The third type of evidence is what is called an "admission". Admissions are facts that the prosecution and defence agree about. When that happens, no other evidence is required – the admissions are treated as established facts. I will tell you about any admissions that have been made in this case when relevant.

Nothing else is evidence in this case. This includes comments about the facts made by counsel.[1] The only evidence is the witnesses’ testimony, [the admissions] and the exhibits.

No Sympathy or Prejudice

It is your duty to decide this case only on the basis of that evidence. You must ignore all other considerations.

In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the accused or anyone else. No such emotion has any part to play in your decision.

You are the judges of the facts. That means that in relation to all of the issues in this case, you must act like judges. You must dispassionately weigh the evidence logically and with an open-mind, not according to your passion or feelings. Your duty is to consider the evidence using your intellect not your heart.

No Outside Information

When you retire to consider your verdict, you will have heard or received in court, or otherwise under my supervision, all the information that you need to make your decision.

Unless I tell you otherwise, you must not base your decision on any information you obtain outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case or the people involved in it, or which you may see or hear. You must consider only the evidence presented to you here in court [if a view may be conducted add: "or otherwise under my supervision"].[2]

Most importantly, you must not make any investigations or enquiries, or conduct independent research, concerning any aspect of the case or any person connected with it. That includes research about the law that applies to the case. You must not use the internet to access legal databases, legal dictionaries, legal texts, earlier decisions of this or other courts, or other material of any kind relating to the matters in the trial. You must not search for information about the case on Google or conduct similar searches. You also must not discuss the case on Facebook, Twitter or blogs, or look at such sites for more information about the case.

You may ask yourself the question: what is wrong with looking for more information? Seeking out information, or discussing a matter with friends, may be a natural part of life for you when making an important decision. As conscientious jurors, you may think that conducting your own research will help you reach the right result. However, there are three important reasons why using outside information, or researching the case on the internet, would be wrong.

First, media reports, or claims made outside court may be wrong or inaccurate. The prosecution and defence will not have a chance to test the information. Similarly, I will not know if you need any directions on how to use such material.

Second, deciding a case on outside information, which is not known to the parties, is unfair to both the prosecution and the defence. The trial is conducted according to well established legal principles and its not for you to go looking for other information or to add to the evidence.

Third, acting on outside information would be false to the oath or affirmation you took as jurors to give a true verdict according to the evidence. You would cease being a juror, that is, a judge of the facts, and have instead taken on the role of an investigator.

If one of your fellow jurors breaches these instructions, then the duty falls on the rest of you to inform me or a member of my staff, either in writing or otherwise, without delay. These rules are so important that you must report your fellow juror.

[Add the following shaded section if there is a risk that a juror may visit the crime scene or attempt a private experiment.]

For similar reasons, unless I tell you otherwise, you must not visit the scene of the alleged offence. You also must not attempt any private experiments concerning any aspect of the case. As I have explained, you are jurors assessing the evidence which is led in the case. You are not investigators, and must not take into account material that has not been properly presented to you as evidence.

Consequences of breaching instructions

You may have a question about what could happen if you acted on outside information or conducted your own research.

The immediate outcome is that the jury may need to be discharged and the trial may have to start again. This would cause stress and expense to the witnesses, the prosecution and the accused. It would also cause stress and inconvenience to the other jurors, who will have wasted their time sitting on a case which must be restarted.

Second, it is a criminal offence for a juror to discuss the case with others or to conduct research on the case. You could therefore be fined and receive a criminal conviction, which may affect your ability to travel to some countries. Jurors have even been sent to jail for discussing a case on Facebook.

More broadly, jurors conducting their own research undermines public confidence in the jury system. The jury system has been a fundamental feature of our criminal justice system for centuries.

For all these reasons, it is essential that you decide the case solely on the evidence presented in court, without feelings of sympathy or prejudice. You must not conduct your own research into the case or discuss the case with others who are not on the jury.

[Judges may describe a specific example of the consequences of breaching instructions]

Warnings About Discussing the Case

As judges of the facts, it is also important that you are careful to avoid any situations that could interfere with your ability to be impartial, or that could make you appear to be biased towards one side or the other.

You must therefore be careful not to get into conversation with anyone you do not know, who you might meet around or near the court building. Otherwise you may find yourself talking to someone who turns out to have a special interest in the case.

You must also avoid talking to anyone other than your fellow jurors about the case. This includes your family and friends. You must not discuss the case on social media sites, such as Facebook, Myspace, Twitter, blogs or anything else like that. Of course, you can tell your family and friends that you are on a jury, and about general matters such as when the trial is expected to finish. But do not discuss the case itself. It is your judgment, not theirs, that is sought. You should not risk that judgment being influenced by their views – which will necessarily be uninformed, because they will not have seen the witnesses or heard the evidence.

You are free to discuss the case amongst yourselves as it continues, although you should only do this in the jury room. However, you should form no conclusive views about the case until you have heard all of the evidence, listened to counsel on both sides, and received my instructions about the law. Keep an open mind.

Consequences of breaching instructions revisited

You have already heard what can happen when jurors disregard the instruction not to conduct their own research. Similar consequences can follow if you discuss the case with others.

You must therefore also let me know if someone tries to discuss the case with you, or if you learn that one of your fellow jurors has been discussing the case with someone outside the jury.

Notes

[1] If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.

[2] If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See Decide Solely on the Evidence for further information

Last updated: 17 May 2019

See Also

1.5 – Decide Solely on the Evidence