thirdcrank wrote:Flinders wrote: ... Isn't it the judge's job/duty to rebalance the case presented and pull it back to the facts?
In England and Wales, a criminal case is tried on the admissisble evidence. While this should establish some facts, the process seeks to establish whther or not the defendant is guilty. This is really a concept rather than a fact, although once the jury's verdict has been delivered, it's treated as fact.
The judge's role is to ensure that the trial takes place within the rules, especially insofar as they govern what evidence is admissible. The judge has a case management role to try and keep things moving and focused on the job in hand. I suppose this might be described as pulling it back to the facts, but if there's any leeway, the defence has to have the benefit of the doubt. In its final submission, the defence can use all sorts of rhetoric to try to win over the sympathy of the jury or introduce doubts. At the conclusion of the defence case and before the jury retires to consider its verdict, the judge sums up the evidence, drawing particular attention to any crucial evidence from either side and then explains the relevant law. If the defence advances an argument which isn't a defence, the judge must explain that to the jury (and then wait for the appeal in the event of a conviction.)
IMO the word "rebalance" doesn't describe a judge's role.
Agreed, not the right word. maybe 'drag the case back to the judging on the facts and tell the jury to disregard the rhetoric' might be better.
I also worry about victim statements and references to the job of the defendant (when that's not specifically relevant) can, in their different ways, create a system where the same offence may be treated more or less leniently according to the jury's perception of the status of the victim or perpetrator. Someone who murders a tramp with no family should not get a less severe sentence than someone who murders someone with a more fortunate life. Likewise, juries ought to be discourage from finding someone innocent just because they approve of them in other ways and don't want them to get a stiff sentence.