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  • Osborn defined Trail as - The examination and decision of a matter of law or fact by a Court of Law.
  • Stroud's Judicial Dictionary: The hearing of a case, civil or criminal, before a judge, who has the jurisdiction over it, according to the Laws of Land.
  • Trail by Judge and Jury is the characteristic feature of the English legal system.
  • A trial by jury consists of the operation of calling and swearing the jury, of a speech by the [[Counsel] for the plaintiff, the examination, cross-examination and re-examination of his witnesses.
  • A speech by Counsel for the defendant followed by the examination, cross-examination and re-examination of his witnesses, and a summing up of their evidence by him.
  • The reply or speech the plaintiff's counsel, the summing up of the whole case by the judge for the jury, and last, the jury's verdict.

Types of Trail

Trials are normally divided into

  1. Warrant Trials and
  2. Summons Trials.

A criminal trial starts with framing of charges, if a person is not discharged- trial begins, by framing of charge and reading and explaining to him.

After framing of charges the judge proceeds to take the “plea of guilt” which is an opportunity to the accused to acknowledge that he pleads guilty and does not wish to content the case.

Here the judge’s responsibility is onerous, he has to, first ensure – plea of guilt is free and voluntary.

Secondly - he has also to ensure that if there had been no plea of guilt – was the prosecution version if unrebutted- would have led to conviction. If both the requirements are met – then judge can record and accept plea of guilt and convict the accused after listening to him on sentence.

After plea of guilt is taken, if accused pleads “not guilty” or court does not accept his plea of guilt, trial moves on- prosecutor then explains to the court the basic outline of the case and what evidences he proposes to lead in order to prove the same. He ask the court to summon witnesses so that court can record their evidence. As the prosecution has to start leading evidence to bring home the offence to the accused – it is said “The Burden of Proof lies on the Prosecution”. The basic rule is whoever asserts the affirmative of an issue has the burden to prove facts on which the accused’s liability depends, and this burden of proof - is not a light burden – the prosecution has to prove that the accused is guilty beyond reasonable doubts. This is primarily for two reasons:

1. A person’s (accused’s) life and liberty is involved.

2. And the state with the investigative machinery at its disposal is sufficiently armed to get good evidence which an individual would not have.

So since now the burden of proof is on the prosecution it has to prove facts which incriminate the accused. When witnesses for the prosecution are called they are first examined by the prosecutor – then cross examination by the defence advocate, and with the leave of court prosecutor can again examine to clarify the loopholes exposes during toss.

After the prosecutor has led its evidence – court asks the accused to himself enter the witness box but in order to explain circumstances that appeared against him – he has given an opportunity to give personal explanations. This is a remarkable manifestation of Audi Alteram Partem where the court makes a direct dialogue with the accused to know what his take is. This is not a chance to the court to bequile or cross examine the accused. Any answer given by accused is not to be used as evidence against him but the court may take into consideration to adjudge overall trustworthiness of the case. This is done u/s 311 CrPC, after the examination. If the court feels that prosecution has not successfully brought home the guilt – it may acquit – else if it feels that they have sufficiently discharged their burden – then it asks defence if it seeks to lead evidence, and the same cycle again. Now after evidence from both sides is recorded. Parties then make arguments on the same, and in the end court pronounces the judgement.

In case of Acquittal the accused is set at liberty. In case of conviction – the punitive dilemma begins. The court has to fix another hearing to decide on the quantum of sentence. Here the prosecution as well as the defence can lead evidences that would have been fatal earlier, in order to aggravate or mitigate the punishment. Here the court gives equal leverage to the “Crime” as well as the “Criminal”. Earlier the gravity of crime used to be the sole criteria – however in recent times, there has been a definitive shifts of focus from crime to criminal which manifests growing importance of reformation at the end of punishment. The court at this stage would also consider whether the accused is entitled to the benefits of probation or admonition.

Difference between Inquiry and Trial

Both inquiry and trial are judicial proceedings, but they differ in the following respects:

(1) An enquiry does not necessarily mean an inquiry into an offence for, it may, as well relate to matters which are not offences, e.g., inquiry made in disputes as to immovable property with regard to possession, public nuisances, or for the maintenance of wives and children. A trial on the other hand, is always of an offence.

(2) An inquiry in respect of an offence never ends in conviction or acquittal; at the most. It may result in discharge or commitment of the case to sessions. A trial must invariably end in acquittal or conviction of the accused.

New Trial

A re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees. Code Civ.Proc.Cal. § 656. A reexamination of the issue in the same court, before another jury, after a verdict has been given. Pen.Code Cal. § 1179. A re-examination in the same court of an issue of fact, or some part or portions thereof, after the verdict by a jury, re-port of a referee, or a decision by the court. Rev. Code Iowa 1880, § 2837 (Code 1931, § 11549). And see Oxford v. State, 80 Okl. 103, 194 P. 101; Warner v. Goding, 91 Fla. 260, 107 So. 406, 408.

New Trial Paper

In English practice. A paper containing a list of causes in which rules nisi have been obtained for a new trial, or for entering a verdict in place of a nonsuit, or for entering judgment non obstante veredicto, or for otherwise varying or setting aside proceedings which have taken place at nisi prigs. These are called on for argument in the order in which they stand in the paper, on days appointed by the judges for the purpose. Brown.

Public Trial

A trial held in public, in the presence of the public, or in a place accessible and open to the attendance of the public at large, or of persons who may properly be admitted. "The requirement of a public trial is for the benefit of the accused; that the public may see, he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether." Cooley, Const.Lim. *312. And see People v. Hall, 64 N.Y.S. 433, 51 App.Div. 57; Commonwealth v. Trinkle, 124 A. 191, 192, 279 Pa. 564; People v. Greeson, 203 N.W. 141, 149, 230 Mich. 124.

Trial Amendment

Pleading that a litigant files during progress of actual trial of case, office of which is to meet some situation that is developed by evidence. Texas Electric Service Co. v. Kinkead, Tex.Civ. App., 84 S.W.2d 567, 570.

Trial at Bar

A species of trial now seldom resorted to, excepting in cases where the matter in dispute is one of great importance and difficulty. It takes place before all the judges at the bar of the court in which the action is brought. Brown. See 2 Tidd, Pr. 747; Steph.Pl. 84.

Trial by Certificate

A form of trial allowed in cases where the evidence of the person certifying was the only proper criterion of the point in dispute. Under such circumstances, the issue might be determined by the certificate alone, because, if sent to a jury, it would be conclusive upon them, and therefore their intervention was unnecessary. Tomlins.

Trial by Jury

A trial in which the issues of fact are to be determined by the verdict of a jury of twelve men, duly selected, impaneled, and sworn. The terms "jury" and "trial by jury" were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause was a body of twelve men, described as upright, wellqualified, and lawful men, disinterested and impartial, not of kin nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor of or against either party, duly impaneled under the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them, who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them. State v. McClear, 11 Nev. 60. And see Gunn v. Union R. Co., 23 R.I. 289, 49 A. 999; State v. Harney, 168 Mo. 167, 67 S.W. 620, 57 L.R.A. 846; Branham v. Commonwealth, 209 Ky. 734, 273 S.W. 489, 490; Davis v. Central States Fire Ins. Co., 121 Kan. 69, 245 P. 1062, 1063; N. Wagman & Co. v. Schafer Motor Freight Service, 167 Misc. 681, 4 N.Y.S.2d 526, 529.

  • In a federal court a trial by jury as understood and applied at common law and includes all the essential elements as they were recognized in this country and England when the constitution was adopted, including a jury of 12 men, neither more nor less. U.S.C.A.Const. art. 3, § 2, cl. 3; Amend. 6. Coates v. Lawrence, D.C.Ga., 46 F.Supp. 414, 423.
  • The Seventh Amendment to Federal Constitution declaring the right of "trial by jury" applies only to suits at common law. U.S.C.A.Const.Amend. 7. Ransom v. Staso Milling Co., D.C.Vt., 2 F.R.D. 128, 130, 131.
  • A right to a "trial by jury" when given by a constitution means a trial by a jury of 12, but where the right to a jury trial is not given by the constitution, the legislature may fix the number of jurors at less than 12. Doyle v. Police Court of City of Niagara Falls, 177 Misc. 359, 30 N. Y.S.2d 324, 325. And is right to a jury trial in such cases as it existed at time of adoption of constitution. Blum v. Fresh Grown Preserve Corporation, N.Y., 292 N.Y. 241, 54 N.E.2d 809, 810.

Trial by Proviso

A proceeding allowed where the plaintiff in an action desists from prosecuting his suit, and does not bring it to trial in convenient time. The defendant, in such case, may take out the venire facias to the sheriff, containing these words, "proviso quod," etc., i. e., provided that. If plaintiff take out any writ to that purpose, the sheriff shall summon but one jury on them both. This is called "going to trial by proviso." Jacob, tit. "Proviso."

Trial by the Record

A form of trial resorted to where issue is taken upon a plea of nul tiel record, in which case the party asserting the existence of a record as pleaded is bound to produce it in court on a day assigned. If the record is forthcoming, the issue is tried by inspection and examination of it. If the record is not produced, judgment is given for his adversary. 3 Bl.Comm. 330.

Trial by Wager of Law

In old English law. A method of trial, where the defendant, coming into court, made oath that he did not owe the claim demanded of him, and eleven of his neighbors, as compurgators, swore that they believed him to speak the truth. 3 Bl. Comm. 343. See Wager of Law.

Trial by Witnesses

The name "trial per testes" has been used for a trial without the intervention of a jury, is the only method of trial known to the civil law, and is adopted by depositions in chancery. The judge is thus left to form, in his own breast, his sentence upon the credit of the witnesses examined. But it is very rarely used at common law. Tomlins.

Trial De Novo

A new trial or retrial had in an appellate court in which the whole case is gone into as if no trial whatever had been had in the court below. See Karcher v. Green, 32 A. 225, 8 Houst. (Del.) 163; Ex parte Morales, Tex.Cr.App., 53 S.W. 108; Carlson v. Avery Co., 196 Ill.App. 262, 272; Bardwell v. Riverside Oil and Refining Co., 139 Okl. 26, 280 P. 1083, 1085.

Trial With Assessors

Admiralty actions involving nautical questions, e. g., actions of collision, are generally tried in England before a judge, with Trinity Masters sitting as assessors. Rosc.Adm. 179.

Related Cases / Recent Cases / Case Laws

  • People v. Vitale, 364 Ill. 589, 5 N.E. 2d 474, 475. Gulf, C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 899, 4 A.L.R. 613; State v. Dubray, 121 Kan. 886, 250 P. 316, 319; Photo Cines Co. v. American Film Mfg. Co., 190 I1l.App. 124, 128.
  • For purpose of determining such issue. City of Pasadena v. Superior Court in and for Los Angeles County, 212 Cal. 309, 298 P. 968, 970; State ex rel. Stokes v. Second Judicial Dist. Court, in and for Washoe County, 55 Nev. 115, 127 P.2d 534.
  • It includes all proceedings from time when issue Is joined, or, more usually, when parties are called to try their case in court, to time of its final determination. Molen v. Denning & Clark Livestock Co., 56 Idaho 57, 50 P.2d 9, 11.
  • Essar Teleholdings Ltd v Central Bureau of Investigation, Criminal Original Jurisdiction, Transfer Petition (Crl) No 1273 OF 2015, Supreme Court of India judgment dated September 29, 2015
  • And in its strict definition, the word "trial" in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict. Thomas v. Mills, 117 Ohio St. 114, 157 N.E. 488, 489, 54 A. L.R. 1220.

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