The Trail

 1.The Right to Fair Trial

• Trial in general and criminal trial proceeding in particular should be
fair. To this effect, parties to the proceeding have certain rights
which we call fair trial rights.
• Almost in all legal systems an accused enjoys rights, often granted
by law.
• Such rights could be exercised before, on or even after the criminal
proceeding.
• The accused may not have knowledge of the law and , therefore,
may not know,
 What are his rights and duties
 At what stage are they to be raised and exercised,
 What kind of evidences are relevant to his case, etc
The Prosecutor and Police: powerful?
• The public prosecutor, on the other hand is a professional
trained and skilled in law, and in the prosecuting arm of the
government, having all the government power and resources
to conduct the investigation and the prosecution when
compared to that of poor accused.
• The police are under the prosecutor who even takes
instructions as to investigations which are to be complied
with. They are using the public fund to prosecute.
• Fair trial is, thus, an effort to reduce this huge gap of power
and resources between the two parties and in some way
leveling the ground so that there could be a fair hearing.
 The Duty of the Public Prosecutor
• The fairness includes mainly “granting” certain rights to the accused
such as the right to remain silent, due process of law, the right to pre-
trial access to evidence, open court trial and presumption of innocence.
• It also includes imposing certain obligations on the public prosecutor,
such as, the constitutional obligation to respect and have respected the
rights and privileges of the accused, the obligation to prove the charge
and to prove it beyond reasonable doubt degree.
• Such rights extend to the period when a person is accused of a crime till
the time of conviction or acquittal.
• The rights of the accused are generally based on the maxim of “innocent
until proven guilty” embodied within a constitution.
 2.The Right to Defense Counsel
• It has been discussed that often accused are layman
who lack the relevant knowledge of law to bring and
defend causes of actions brought against them.
• Consequently, they are in urgent need to seek
lawyers/advocates/ to defend causes on their behalf.
• To this end, most legal systems allow accused
persons to have the service of lawyers of their choice
or appointed by the state so that they will be able to
protect their liberty .
Article 20(5) of FDRE Constitution
• “Accused persons have the right to be represented by legal
counsel of their choice ,and if they do not have sufficient
means to pay for it and miscarriage of justice would result,
to be provided with legal representation at state expense.”
• The state should provide defense legal counsel only
 To those who are not able to pay for it and
 If miscarriage of justice happens .
• In all others cases, no legal counsel be provided to the
accused at the expense of the state.
• Obviously those who can afford to appoint a legal counsel at
their own expense can do so without any restriction.
Some sort of standardization needed?
• Though it is a constitutional right for an
accused to be provided with legal counsel at
the state expense provided that miscarriage
of justice happens, it is often only in some
limited cases that such right is exercised.
• Therefore, some sort of standardization
should be set for it is impossible for the state
to provide legal counsel for accused persons
charged with all kinds of offences.
 The Practice
• In practice the Federal courts emphasize the gravity of the
offence: homicide, terrorism, corruption, or robbery.
• In addition, there are laws attaching punishment criteria
for appointing a defense lawyer; when the offence is
punishable with rigorous impressments not less than five
years.
 The defense force Proclamation (Art 34(2) of Pro.
No.27/1996)( Federal Negarit Gazeta)
 The Proclamation to provide for The reestablishment of
Oromia National Regional State Court Proclamation
Art.17(2) Pro. 141/2008( Megelete Oromia)
3. The Right to Obtain Copy of the Charge
• It has been discussed that upon the receipt of the report of
police investigation, the public prosecutor may prosecute the
accused on a charge drawn up by him pursuant to Art. 108-
122 of the Cr.Pr..
• Charge could be defined as a formal document containing an
allegation that a person named therein has committed a
crime by describing the necessary facts and evidence
indicating that such person deserves punishment as provided
for under the relevant article that has been violated.
• Charge describes the necessary facts and evidences
indicating the person deserve punishment. Mere charge will
not however necessarily result in punishment.
 The Right to Obtain Copy of the
Charge…….
• The accused (defendant) has a constitutional right to
examine witnesses testifying against him to adduce or to
have evidence produced in his own defense and to obtain
the attendance of and examination of witnesses on his
behalf before the trial court. Hence, the right of the accused
to obtain a copy of the charge is of high importance in the
exercise these rights.
• The accused person has the right to be informed with
sufficient particulars of the charge brought against him and
to be given the charge in writing. (Art 20(2) of FDRE Co.) &
(Art.108 & 109 Cr.Pr.)A copy of every charge shall therefore
be given to the accused of free
 4. The right to Public Trail
• Criminal court proceedings to determine guilt are
fundamentally different from administrative methods of
determining facts, may be, secretly.
• Court proceedings create opportunity to the community
either to witness the process and to participate in some way.
• This leads to proceeding legitimacy, avoids suspicion and
rumor of official prejudice and arbitrariness, and gives the
public a feeling of security.
• Furthermore, public trial address moral issues and inform
the public of the sad consequences of violation of law.
 Article 20(1) of FDRE Constitution
• “Accused persons have the right to a public trial by an ordinary court of
law within a reasonable time after having been charged. The court may
hear cases in a closed session only with a view to protecting the right to
privacy of the parties concerned, public morals and national security.”
• Thus, the FDRE Constitution makes trial to be “public”, i.e. in an open
court before ordinary court in principle.
• Ordinary court should be understood to mean a court having judicial,
material and local jurisdiction.
• Article 20/1/, however, is not limited to the accused’s right to public
trial.
• It also guaranteed that trial be undertaken speedily. Speedy trial is to
mean trial which avoids unnecessary and unreasonable delay, i.e.
decision rendered within the possible reasonable period of time.
 Exceptions to Public trails?
• Art 20 the FDRE Constitution provides that a court could
hear cases in a closed session only with a view of protecting,
 The rights to privacy of the concerned parties,
 Public morals and; and
 National security.
• Art. 26(2) of Proclamation No. 25/96 lists two grounds for a
court to hear cases in a closed session –“in camera” these
are:
 Public and state safety, and
 Public morality and decency.
Young Person: Art 176 of the Cr.Pr
• “Where the young person is brought before the court all the
proceedings shall be held in chambers. Nobody shall be
present at any hearing except witnesses, experts , parents or
guardian or representatives of welfare organizations. The
public prosecutor shall be present at any hearing in the high
court.”
• Hence, the criminal procedure code states that prosecution
in cases of young offenders be semi closed
• In all cases, therefore, the accused has the right to open
court – public trial as a rule and that trial be in closed
session i.e. in camera, is possible only under some
exceptional situations provided by law.
 5.The Presumption of Innocence
 Being innocent until proven guilty is a legal right that the
accused in a criminal trial in many modern nations. The
burden of proof rests on who asserts, not on who denies.
 The presumption of innocence is in fact a legal instrument
created by law to favor the accused based on the legal
inference that most people are not criminal.
 The fact that investigation is being conducted or the public
prosecutor framed a charge, submit the same to the court
and trial being undergone does not mean that the suspect is
guilty until a court decides so.
 Article 20(3) of FDRE Constitution
• “During proceedings any accused person has the
right to be presumed innocent until proven guilty
according to law.”
• Courts are, therefore, the only competent organs to
declare that a person is guilty.
• Though it has been said that everybody is presumed
to be innocent, it does not mean the suspect and
then the accused is in fact innocent. He could be in
reality guilty. But that must be supported by
evidence and a court must declare so.
 5.Privilege against Self Incrimination
• The protection against self incrimination is an important one
for any procedural system which attempts to reach a just
result and its importance is recognized in all systems.
• The core of this protection in almost all systems is the desire
to prevent investigation or adjudication procedures from
coercing the accused persons.
• It is not the desire to prevent investigators from asking
accused or suspected persons questions relating to the
crime, not the desire to keep the person from answering
them and refusal to answer question. They are intended to
make it more certain that the core objective will be realized.
 Article 20(3) of FDRE Constitution
 During proceeding accused persons have the right to be
presumed innocent until proven guilty according to law and
not to be compelled to testify against themselves.
• Consequently, one may say that privilege against self-
incrimination is a constitutional right given to arrested as
well as accused persons.
• The Constitution not only guaranteeing this right but also
make any evidence obtained in violation of this right
inadmissible.
• This could be considered as signal not to compel persons
with the view of obtaining evidences for it would be useless.
 Preliminary Objections and Their
Consequences.
• A prosecutor (public or private) frames his charge and
submit the same to the registrar of the court having
jurisdiction to adjudicate the case.
• When the charge is filed to the court having jurisdiction, the
court shall fix the date of trial and cause the accused and
the prosecutor to be summoned to appear on the date and
at the time fixed. It is at this juncture that the accused be
served with summons and charge( the trial started).
• The accused is supposed to personally appear before the
trial court, his identity verified and so on.
 The presiding judge read the charge
• Assuming that the accused’s response fits with that mentioned in
the charge, the presiding judge shall read out the charge to such
person (the accused) and ask if he has any objection to the charge.
( Art 129 Cr. Pr.)
• The objection may be based on the form or content of the charge
or any other substantive matter.
• If the objection is based on the form and content of the charge,
the provisions of the Cr.PC. on amendments of charges (alteration
of and addition to charges) and their effects shall apply. ( Art
130(1) Cr. Pr.)
• Consequently, the court shall order (if the objection is valid) the
charge to be amended within a reasonable period of time it fixes.
 The grounds of objections to a charge:
(Art.130 Cr.Pr.)
 The grounds of objections to a charge include,
 That the case is pending before another court.
 previously acquittal or conviction on the same charge; or
 That the charge against him has been barred by limitation
 subject of pardon or amnesty; or
 That he will be embarrassed in his defense if he is not granted a
separate trial, where he is tried with others; or
 That no permission to prosecute as required by law has been
obtained; or
 That the decision in the criminal case against him can not be given
until other proceedings have been completed: or
 That he is not responsible for his acts.
 Are the list exhaustive?
• Are the list exhaustive?
• Would it be possible for the accused to raise the issue of
jurisdiction as a preliminary objection?
• The right of the accused to raise such objections is not
unlimited.
• Where no objection is raised after it has been required by
court to state objections (if any) the accused is barred from
raising any such objections at any latter stage in the trial.
• Yet if the objection is of a nature that could prevent valid
judgment being given the accused could be allowed to
raise such objections even out of time. ( Art. 130(3)
 Decision of the court on the Objections

• Where objections are raised, the court shall take

down the same and ask the prosecutor whether he
has any statement to make.
• Then the court shall decide forthwith on such
objection where the objection can be disposed of by
reference to the law or the facts.
• Where the prosecutor does not admit or where the
court can not decide on the objection forthwith, It
order a production of necessary evidences.
 Decisions on the Objections( Art 131)
• If the accused, for example, raised an objection
stating that he had been asked on the same cause
of action previously by another court and was
acquitted, the court cannot settle immediately in
that it needs evidence.
• The court should order the accused to produce
evidence for that.
• Hence, the court shall not see the merit of the case
before deciding on preliminary objections raised
accordingly.
 Plea of accused( Art.132)
• Once the charge is explained by the presiding judge, the
accused will be asked whether he pleads guilty or not.
• Where there are more than one charge, the judge shall read
each charge one by one and ask, then record the plea of the
accused in respect of each charge separately.
• It is the duty of the judge to record the plea of the accused
without including or substituting any word of his own to
what is stated by the accused which should be clear enough.
• Where the accused denies the charge or admits the same
with reservation or if the accused says nothing in answer to
the charge the plea of not guilty shall be entered. ( Art. 133)
 Judges are required to make inquiries
• The plea of guilty shall be entered only where the
accused admits the charge without reservation
every ingredients of the offence. (Art .134)
• However, it should be noted that even if the
accused pleads guilty, the judge need not accept the
plea if from the behavior, appearance or words of
the defendant during the pleading process
understand what is happening or that the plea may
be involuntary or greatly inaccurate .
 Judges are required to make inquiries…

• In deciding such issues, judges are required to

make inquiries to establish that the accused,
 Knows that a guilty plea is a waiver of this
right
 Pleading guilty voluntarily.
 Understands the nature of the charge.
 Is aware of the possible maximum sentence
if he pleads guilty.
 Production of Evidence After Plea( Art 136)

• As being discussed above after the accused pleads

not guilty, it is obvious that the next process is that
the prosecutor be ordered to produces evidence,
oral witnesses in particular because he is alleged a
commission /omission/ of a crime the burden of
proof lies on him.
• However, if the accused pleads guilty and it has
been recorded by the court, the prosecutor shall be
asked his opinion which normally be demanding
the court to convict the accused forthwith.
What possible grounds for corroboration?
• The court may on its own discretion either convict the
accused forthwith or demand the prosecutor to produce
evidence and corroborate the plea.
• What possible grounds would lead the court demand
production of further evidence in disregard of the accused’s
plea of guilty?
• Practically the nature of the offence has an impact on the
decision of the court to accept or not the plea of guilt by the
accused. In most serious offences, such as aggravated
homicide, ethiopian courts opt in the production of
corroborating evidence though the accused pleads guilty
and the prosecutor requests for immediate conviction.
 What possible grounds ………..?
• Sometimes prosecutors request the introduction of evidences
after the accused pleads guilty with the view of showing the
criminal disposition or of the accused so that punishment
would be aggravated in serous offences.
• In the course of proceeding after the court entered the plea of
guilty of the accused, the court may amend the plea on its own
motion or upon the application of the accused.
• Where a plea of guilty had been entered following which the
suspect had been convicted, the conviction shall be set aside.
(Art 135(2) of Cr.Pc)
• The CPC allows amendment of peal from guilty to not guilty.
How about the vice versa?
 Opening of Cases and Presentation of Evidences.

• It is only then after that the issues of opening

of cases comes in to being.
• Thus, the prosecutor in opening his case,
shall state the charge(s) he proposes to prove
and the nature of evidences he tenders in
respect of each fact in doing so the public
prosecutor is supposed to do in an impartial
way as being provided under Art 136(1) Cr.Pr.
 Presentation of evidence
• Where the plea of guilty has been entered but the court
orders the plea be corroborated with evidence, the
prosecutor will produce his evidences.
• The public prosecutor shall give the registrar list of witnesses
and experts, who shall testify in respect of the charges.
• The prosecutor has to ensure that all exhibits are produced
at the trial and documentary evidence annexed.
• Evidences to be produced by the public prosecutor in
support of his allegations are oral, in most cases,
documentary, and exhibits.
• The accused do the same once prosecutor proves beyond
reasonable doubt.
 Examination of Witnesses
• On the date fixed for hearing, the prosecutor who
normally begins the case shall call up on all relevant
witnesses so as to prove his case and explain about
the issues to be proved by the witnesses or
separately if the issues to be proved are different.
• Such witnesses then shall tender an oath or make
an affirmation one by one.
• Witness shall be:
Examined – in-chief by the public prosecutor
Cross-examined by the accused or his advocate
Re-examined by the public prosecutor
 No leading questions unless permitted
(Art 137 Cr.Pr. )
• Forms of questions to be put during examination-in-chief,
 questions put in examination-in-chief shall only relate to
facts which are relevant to the issues to be decided and such
facts which the witness has direct or indirect knowledge.
 No leading questions shall be put to a witness without the
permission of the accused or his advocate or the public
prosecutor, as the case may be.
• The public prosecutor conducts examination – in - chief to
his witness to enable him ask questions that is directly or
indirectly related to the offence. The accused will do the
same mutate mutandis.
 Direct and Indirect Knowledge
• Direct knowledge is acquired by that witness through sense
organs which believed to be a reliable testimony.
• Questions during examination-in-chief may also relate to
facts of which the witness has indirect knowledge. A witness
is said to have indirect knowledge where he has heard about
the fact from another person who has observed the fact or
may be constructed from other facts.
• Testimony given based on indirect knowledge may not be
acceptable as it is hearsay for it is based on the testimony of
another party who never appears before the court. There is
argument that such hearsay evidences is against the
accused’s constitutional right.
 Exception to Leading Questions
 In principle leading questions are prohibited during
examination–in-chief, however, there are exceptional
circumstances where such questions could be asked at this
stage if:
 The accused or his advocate gives his permission; or
 The question is related only to introductory matter such as the
name, occupation and address of the witness and not the
substance of the testimony; or
 The witness is a minor who does not have good command of
language for the purpose of assisting him; or
 The witness does not know as to where to start, to refresh his
memory; or
 The witness turns out to be hostile.
 When is a witness said to be hostile?
• In the normal course of things, a proponent calls a witness
believing that he will testify in his favor.
• Exceptionally, however, the witness turns out to be hostile
to the person who called him.
• Had the calling party known before that the witness is going
to be hostile to him, he would not have called him at least; It
happens before the court.
• When this happens the prosecutor, up on the permission of
the court, put leading questions to such witness during
examination in chief, hence the examination turns to cross-
examination.
 Cross-examination : Art 137(3)
• Once the prosecutor finished examination-in-chief, the
accused or his advocate conduct cross-examination the
purpose of which is to destroy what has already been
established during the examination-in-chief by showing the
testimony is not true; it is contradictory or not reliable.
• It should base to facts testified during examination-in-chief.
• Leading questions are allowed to be put at this stage
because as in most cases such witness is hostile to the
adverse party seems very unlikely for such party to find a
suggested answer from the witness.
• Failure to cross-examine does not mean admission; it is
discretional.
 Re-examination( Art.136(3))
• Re-examination is to be conducted by the party who
conducted by the party conducting examination-in-chief .
• The purpose of re-examination is to reestablish what has
been demolished or confused during cross-examination .
• In view of its purpose, therefore, the facts that are to be
raised during re-examination are limited to those, which
were raised during the cross-examination.
• If there is no cross-examination, therefore, no re-
examination as nothing has been destroyed.
• The court may put any relevant- questions which appear
necessary for the just decision of the case, question to the
witness any time.Art.136(3)
 The testimony of the witness
• The testimony of the witness, therefore, should be recorded
by the judge which shall start with the name, address,
occupation and age of the witness.
• If judge is unable to write for whatever reason, it may be
recorded by another judge or clerk under his personal
direction and superintendence.
• Because it is difficult to record every statement of the
witness, judge often writes the answers the form narration.
• However, recently, a transcribing machine has been fixed in
many federal and regional courts for recording.
 The court and the parties may call other
witness any time
• The Court can call witness on its own motion any time
before judgment in which case the court would conduct
examination in – chief and that the party against whom
these witnesses testify would conduct cross-examination.
• In principle, the public prosecutor shall state all the
witnesses in his charge according to the practice. However,
the prosecutor has the right to call witnesses whose name
does not appear in the list of witnesses (Art 143)
• What would happen if the witness-all or some fail to appear
for different reasons such as death, absence in capacity
cannot be found? Art 144 & 145 has some solution;
statement at the preliminary inquiry or at the police station
could be used.
 Post Evidence Procedure
• Evidences that could be produced before the court to prove
the commission on an alleged crime by the accused could be
documentary and/or oral.
• Documentary evidence could be the confession of the
accused either before the investigating police officer as per
Art 27/2/ or before a court by virtue of Art 35 or any other
document, which may be material proof to the fact in issue.
• It may also be an exhibit, like knife or gun, or a thing which is
the fruit of an offence such as a stolen or robbed property or
a document produced illegally such as a document which has
been forged.
• The court after going through all evidences to the proof of
the fact (s) in issues shall reach in to a decision.
 No Case Motion and Acquittal(Art 141)
• The court has to evaluate the weight of the evidences based on a
certain standard.
• As the practice reveal the court base itself on the standard called “
beyond reasonable doubt” degree of proof.
• What does beyond reasonable doubt mean?
• Does it mean no doubt at all?
• In your opinion, is it possible to have proof with absolute certainty?
• In criminal cases, it is the public prosecutor that has the duty to
prove his case and only if he proved his case with the required
degree of proof that the accused would be given the chance to
defend himself by producing witnesses if he has or if he wishes to
do so.
 No Case Motion and Acquittal….
• Unless the evidences produced by the public prosecutor
proves the case to the satisfaction of the court that the
accused committed the alleged crime the later shall be set
free. Thus, no case motion/no case for prosecution.
• Thus, once after the court examine the evidences and
measured its weight shall decide whether the case is proved
to the extent of the required degree against the accused or
not.
• If the court is not convinced that the case is sufficiently
proved, it shall acquit the accused without requiring him to
defend himself and enter an order of release of the accused
if he is in custody.(Art 141 Cr. Pr.)
 Case for Prosecution (Art142)
• Where the case is not dispensed pursuant to Art 141 or if
the court is satisfied with evidences produced and is
convinced that the accused had committed the alleged crime
the court shall require him to produce all possible evidences.
• The fact that the court orders the accused to produce his
evidences and defend himself is referred to as case for
prosecution
• The accused then shall give the list of all relevant evidences
to the registrar of the court and take the summons.
• The accused would be convicted if he fails to rebut the case
made against him.
 Judgment: Conviction/Acquittal(Art. 149)
• All the criminal prosecutions are made with the ultimate
destination of rendering judgment(conviction or acquittal)
• The accused would be convicted if the evidences produced
by the prosecutor convinced the court to the extent of the
required degree that the accused committed the alleged
crime and his evidence, could not rebut.
• On the other hand, if the defense evidence(s) produced by
the accused can falsify the evidence of the prosecution the
court must decide for the acquittal of the accused.
• It is one of the responsibilities of a judge to give reason for
any of its decisions
 Sentencing( Art 149(1)
• Where the accused is found guilty, the court shall ask the prosecutor
whether he has anything to say as regards sentence by way of
aggravation or mitigation as being provided under Art 149/3/ of the CPC.
The prosecutor could raise the aggravating grounds such as previous
convictions.
• The accused shall give a chance to reply and mention any mitigating
grounds he could raise, if any. The court may demand the production of
evidences. In practice, however, courts do not ask the prove to
mitigating/aggravating ground mentioned by the parties.
• The prosecution also tends to state only aggravating circumstances while
the law requires him to mention mitigating circumstances as well.