What are Voir Dire and Alternative Procedure?
In terms of procedure, the Court usually determines whether a certain piece of evidence is admissible through a process known as “voir dire” or the “alternative procedure”.
Voir Dire
A voir dire is the procedure adopted in the Court of First Instance of the High Court where a judge determines whether a certain piece of evidence, especially one relating to confessions, should be admissible in court as part of the prosecution case. It operates like a “trial within a trial” in that it is a special procedure that takes place during the course of the trial, but is separate from the general issues. The burden of proof lies with the Prosecution to establish that the confession was made voluntarily, and it is the judge who decides on whether that is the case.
Voir dire would normally be held before empanelling the jury. This ensures that if the evidence is ultimately ruled inadmissible, the jury who are not legally trained would not be influenced by having heard the inadmissible evidence in the voir dire.
If the confession is ruled involuntary, it will be inadmissible. However, even if the Judge finds the confession voluntary, he may exercise his residual discretion to exclude it if it is deemed unfair.
Alternative Procedure
Under the alternative procedure, the prosecution witnesses present their evidence and are cross-examined on both the general issue of the defendant’s guilt and the special issue of admissibility. The ruling on admissibility is given at the end of the prosecution’s case, i.e. before the defence presents its case.
Alternative procedure is often used in the Magistrates’ Courts and the District Court. The professional judge or magistrate has the ability to put excluded evidence out of his or her mind when dealing with the general issue.
