Judicial perspectives in serious fraud cases-the present status of and problems posed by case management practices, jury selection rules, juror expertise, plea bargaining and choice of mode of trial

Criminal Law Review

Volumn , Issue 10, 2008, Pages 764-783

  Julian, Robert F ^a,b,c  

^a New York State Supreme Court Justice ^*

^b OMEP The World Organization for Early Childhood Education   (United States)

^c UTICA COLLEGE   (United States)

Author keywords

Case management; Jury selection; Jury trial; Length of proceedings; Mode of trial; Plea bargaining; Serious fraud cases

Indexed keywords

EID: 53849109538     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (105)

1. M. Levi, "Blaming the Jury: Frauds on Trial" [1983] 10 J. Law Soc. 257, 268.
2. R. Julian, "Judicial Perspectives on the Conduct of Serious Fraud Trials" [2007] Crim. L.R. 751.
3. See also S. Lloyd-Bostock, "The Jubilee Line Jurors: Does Their Experience Strengthen the Argument for Judge-Only Trials in Long and Complex Cases?" [2007] Crim. L.R. 255.
4. Julian, "Judicial Perspectives" [2007] Crim. L.R. 751.
5. J.H. Langbein, "The German Advantage in Civil Procedure" (1985) 52 University of Chicago Law Review 823.
6. CPR Pts 35 and 3.
7. See also Criminal Procedure Rules r.224.
8. M. Damaška, Evidence Law Adrift (1997), p.56.
9. Auld L.J., Review of the Criminal Courts of England and Wales (2001).
10. Control and Management of Heavy Fraud and Other Complex Criminal Cases - A Protocol Issued by the Lord Chief Justice of England and Wales, available at http://www.justice.gov.uk/ criminal/procrules_fin/contents/ pd_protocol/pd_protocol.htm [Accessed July 15, 2008]. Hereinafter, the Protocol.
11. Fraud Review - Final Report (2006), pp.204-205, available at http:/www.attomeygeneral. gov.uk/Fraud%20Review/ Fraud%20Review%20Final%20Report%20Jufy%202006.pdf [Accessed July 15, 2008].
12. Judge No.6.
13. Judge No.5.
14. Judge No.3.
15. Protocol.
16. Judge No.9.
17. Judge No.5.
18. Judge No.6.
19. Judge No.3.
20. Judges Nos 1, 4.
21. Judge No. 1.
22. Judge No.5.
23. Judge No.4.
24. Judge No.4.
25. Judge No.3.
26. Judge No.9.
27. Judge No.9.
28. Judge No.7.
29. Judge No.2.
30. Fraud Review - Final Report.
31. Judge No. 1.
32. Judge No.2.
33. Judge No.2.
34. Judge No.2.
35. Judge No.6.
36. Judge No.2.
37. Judge No.5.
38. M. Peck, Home Affairs Section, House of Commons Library, The Fraud (Trials Without a Jury) Bill 2006-07, Research Paper 06/57 (2006), quoting, e.g. Lord Donaldson, Hansard, HL (July 15, 2002).
39. Judge No.5.
40. Judge No.9.
41. Judge No.9.
42. Judge No.4.
43. 43S. Wooler, Review of the Investigation and Criminal Proceedings Relating to the Jubilee Line Case, Executive Summary, p.4, available at http://www.hmcpsi.gov.uk/reports/ JubileeLineExecSummary.pdf [Accessed July 15, 2008].
44. A Model Case Management Order provided to and on file with the author.
45. Judge No.4 noted that adequate preparation time was required in which the judge reads through the documents "not as if you were to try the case as lead counsel but you have to have a grip of it" in effectively conducting a case management hearing. This is especially important in attempting to resolve disclosure issues: "you can't effectively rule on these issues until you have read the case."
46. Judge No.4.
47. Judge No.9.
48. Fraud Review - Final Report (2006), pp.204-205.
49. Judge No. 1.
50. Judge No.8.
51. Judge No. 1.
52. Judge No. 1.
53. Judge No. 1.
54. Judge No.3.
55. Judge No.5.
56. Judge No.4.
57. Judge No.7.
58. Lloyd-Bostock, "The Jubilee Line Jurors" [2007] Crim. L.R. 255, 272;
59. S. Wooler, Review of the Investigation and Criminal Proceedings Relating to the Jubilee Line Case (2006), available at http://www.hmcpsi. gov.uk/reports/JubileeLineReponly.pdf [Accessed July 15, 2008].
60. Judge No.4.
61. Judge No.6.
62. Abdroikov [2007] UKHL 37;
63. [2008] Crim. L.R. 134 and Khan [2008] EWCA Crim 531 will be discussed below.
64. Judge No. 1.
65. Judge No.2.
66. Judge No.5.
67. Judge No.5.
68. Judge No.8.
69. Khan [2008] EWCA Crim 531.
70. Judge No.4.
71. People v Scerbo, unreported (Onondaga County Court, New York State, per William Walsh J.).
72. Abdroikov [2007] UKHL 37;
73. [2008] Crim. L.R. 134 at [23].
74. Khan [2008] EWCA Crim 531.
75. Julian, "Judicial Perspectives" [2007] Crim. L.R. 751.
76. Jurors Use of Professional Expertise, New York Pattern Jury Instructions, Civil 1:25 A, 46-48. The charge states: "Although as jurors you are encouraged to use all of your life experiences in analyzing testimony and reaching a fair verdict, you may not communicate any personal professional expertise you might have or other facts not in evidence to the other jurors during deliberations. You must base your discussions and decisions solely on the evidence presented to you during the trial and that evidence alone. You may not consider or speculate on matters not in evidence or matters outside the case."
77. Judge No.8.
78. Judges Nos 4 and 6 consider recent American sentences in serious fraud cases. For example, Jeffrey Skilling of Enron received 25 years' imprisonment as did Bernard Ebbers, the former CEO of World Com, both for fraud. L. Dennis Kozlowski received 85 to 25 years for looting Tyco of $150 million for his own use. The Associated Press, "Conviction of Ex-World Com Chief was Upheld", New York Times, July 29, 2006, p.C2.
79. Judges Nos 6 and 4.
80. Fraud Review-Final Report, Ch. 11;
81. for discussion see I. Jones, Plea Bargaining-The Way Forward?, available at http://www.riw.co.uk/library/articles/plea-bargaining-2013-the- way-forward [Accessed July 15, 2008].
82. Judge No.7.
83. Judge No.9.
84. Judge No.5.
85. Goodyear [2005] EWCA Crim 888;
86. [2005] 2 Cr. App. R. 20 at [70], [73]-[77].
87. Judge No. 1.
88. Goodyear [2005] EWCA Crim 888;
89. [2005] 2 Cr. App. R. 20.
90. Judge No.8.
91. Judge No.4.
92. Judge No.3.
93. Peck, The Fraud (Trials Without a Jury) Bill 2006-07, Research Paper 06/57 (2006), P-13.
94. Criminal Justice Act 2003 s.330(5)(b).
95. Fraud (Trial Without a Jury) Bill, Explanatory Notes (2006), available at http://www.parliament.the-stationery-office.com/pa/cm200607/ cmbills/006/en/2007006en.pdf [Accessed July 15, 2008].
96. Judge No.3.
97. Judge No.2.
98. Judge No.9.
99. Judge No. 1.
100. Judge No.6.
101. 95J. Jackson and S. Doran, Judge Without Jury: Diplock Trials in The Adversary System (1995);
102. S. Doran, J.D. Jackson and M.L Siegel, "Rethinking Adversariness in Non-Jury Criminal Trials" (1999) 23 American Journal of Criminal Law 1, 27, fn.8;
103. J.D. Jackson, "Paradoxes of Lay and Professional Decision Making in Common Law Criminal Systems" (2001) 72 Revue Internationale de Droit Pénal 579, para. 13.
104. New York State Office of Court Administration.
105. Art. 1 Sec. 16 California State Constitution, Judicial Council of California, Administrative Office of the Courts Annual Reports, 1990-2005.