The Role of the Trial Judge in a Criminal Case
A complex and lengthy criminal trial, often conducted under the harsh light of public scrutiny, is perhaps the greatest test of one’s mettle as a criminal judge. These trials require not only legal expertise but also immense patience, stamina, and the ability to manage a high-pressure environment.
Jury trials are a rarity among the world’s legal traditions, but they form a fundamental part of the common law system. In this system, the jury serves as the ultimate decision-maker regarding the defendant’s guilt. However, an often overlooked aspect of the process is the role of the trial judge, who acts as a conductor of an orchestra, ensuring that each party plays their proper role and that the case can be tried smoothly.
The judge does not sit in the back seat while waiting for the jury to deliver its verdict. Instead, they actively manage the proceedings, making sure that the trial remains fair and orderly. This is no easy task, especially when complex criminal cases can easily last for many weeks, involving difficult points of fact and law.
Challenges Faced by the Judiciary
The burden on judges is made heavier by the chronic understaffing of the judiciary in Hong Kong. With too few judges for the volume and complexity of work, cases press harder and harder upon sitting judges. Multiple long trials are often fixed together in close succession, with any free days in the court’s calendar quickly filled up with several shorter hearings, such as sentencing and bail applications, that need to be handled quickly to ensure swift access to justice for defendants.
For example, even in a typical week where a judge does not have to hear a trial, they may usually need to decide up to half a dozen bail applications or sentencing cases a day. Despite their short length, these hearings require careful thought and close attention to legal principles and considerations of justice.
The Complexity of Criminal Trials
In the jury trial system, the age-old adage is that the jury decides the facts, while the judge decides the law. In a simple case, that division appears neat and tidy. In a complicated one, it becomes a severe test of judgment, stamina, and nerve. A complex trial may involve multiple defendants, overlapping charges, contested expert evidence, and a mass of documents.
Unlike in civil trials where all evidence is filed in advance, even the most hardworking criminal judge is not able to do much pre-reading. Defence evidence is usually only revealed during the trial itself. This is a defendant’s right, however, as a defendant is entitled to know the full case against them before choosing whether, and how, to give evidence.
The judge is, therefore, truly acting as a referee, closely watching how each play is made and making decisions on what to allow or not. All of this is for the benefit of the jury so that they can make the fairest decision possible.
The Summing-Up: A Critical Moment
At the tail end of the jury trial comes the pièce de résistance for the judge—the summing-up. After the evidence and speeches, the judge must prepare a speech which explains the law, identifies the live issues for the jury to decide, and summarises the evidence with scrupulous balance and fairness.
Distinctions must be drawn between defendants where the evidence differs, warnings given where the law requires them, and the jury reminded where the burden and standard of proof lie. A misplaced emphasis, an incomplete direction, or a confused account of the evidence can unsettle a verdict and trigger an appeal and re-trial.
The pressure is sharpened by time. Once the evidence closes and counsel have spoken, the summing-up cannot wait. It must usually be prepared within a short window, often overnight, while the case is still fresh and the jury is ready to be directed.
The Loneliness of the Summing-Up
What makes the summing-up uniquely lonely is that, in the end, no one can write it for the judge. Counsel will have made their speeches, but their perspective is different from that required of a summing-up. For a criminal judge, there are no party submissions to lean on at that final stage—the whole case must be distilled by the judge alone.
It is only at the end of the summing-up that a judge’s job is basically completed—the judge finally can sit back and submit the ultimate factual questions to the collective wisdom of a jury. Like all others in the courtroom, and the public at large, the judge has no control over this process—the verdict is solely for the jury.
Lest it be misunderstood, however, there is no uncertainty as to the importance of maintaining the system, quirks and all—one of common law’s greatest contributions to the protection of liberty for all.
