Adventus: In The Rumpole Stories, It's Called The "Summing Up"

Saturday, November 20, 2021

In The Rumpole Stories, It's Called The "Summing Up"

There was never a plausible claim to citizens arrest in this case. It was just a series of crimes.https://t.co/jtzO7Og0Xy
— Andrew Fleischman (@ASFleischman) November 20, 2021

I hesitate to say this is still how it's done in jolly olde "E", because I think British trial practice has changed a bit since John Mortimer was donning a robe (I know he's dead; I mean before he starting writing about Rumpole). One thing Rumpole always worried about was how the judge would "sum up" the case before giving it to the jury. For, or against, his client; that was Horace's concern.

Jury instructions are really what all the testimony and rulings and arguments come down to: what questions do you ask the jury to provide answers to? It's never "Is the defendant guilty?" That's TeeVee/movie trials. It's a series of questions based on the applicable law appropriate to the facts presented at trial. The jury sits as the finder of fact, not guilt or innocence. Jury instructions are questions meant to find the facts.

Which is why the defendants' lawyers are none too pleased that the judge won't allow an instruction on "citizen's arrest." I think the judge is right. But there goes their defense; or one of them. The jury won't even know they aren't answering it; because the judge won't be asking for an answer to it, in any form. (The jury is asked to answer questions couched so that they can't conclude that they are finding the defendant guilty or not guilty. It's more often "do you find the defendant did this?", and "this" is an element of a charged crime. But the jury just decides "yes" or "no.")

A jury instruction that goes against your client can sink all your best efforts at providing a defense. So it goes. Nobody gets upset about that except lawyers; and who cares what they think, amirite?

(The lawyers told the judge he was basically directing the jury to render a verdict against their clients. They aren't wrong; but neither is the judge. Not that these lawyers were going to make bricks without straw anyway.