LEGAL PRINCIPLE: CRIMINAL PROCEDURE — Trial Within Trial — Procedure — Order of Calling Witnesses — Whether Calling Accused First Renders Trial Within Trial Invalid
PRINCIPLE STATEMENT
The fact that the appellant was called upon to testify before the prosecution, though irregular, was not prejudicial to the fair trial of the issue and did not lead to any miscarriage of justice.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Emeka v. State (2001) NLC-72000(SC) at p. 8; Paras A–B.
"The fact that the appellant was first called upon to testify before the prosecution, though irregular, was not prejudicial to the fair trial of the issue and did not lead to any miscarriage of justice. The procedure adopted did not affect the cogency and quality of the evidence adduced by the prosecution in proof of the voluntariness of the statement."
EXPLANATION / SCOPE
The proper procedure in a trial within a trial is for the prosecution to call its witnesses first to prove voluntariness. Calling the accused first is irregular. However, the irregularity does not automatically invalidate the trial within a trial. The court examines whether the irregularity caused prejudice or miscarriage of justice. If the prosecution still proved voluntariness beyond reasonable doubt, and the accused had a fair opportunity to challenge the evidence, the trial within a trial may be valid. The principle applies the harmless error doctrine. The appellate court will not reverse for procedural irregularity alone if substantial justice was done. The burden is on the accused to show prejudice.