The Origins of Adversary Criminal Trial

by Langbein, John H.

• ISBN13: 9780199258888
• ISBN10: 0199258880
• Format: Hardcover
• Copyright: 2003-03-27
• Publisher: Oxford University Press

Summary

The adversary system of trial, the defining feature of the Anglo-American criminal procedure developed late in English legal history. For centuries, defendants were forbidden to have counsel, and lawyers seldom appeared for the prosecution either. Trial was meant to be an occasion for the defendant to answer the charges in person. The transformation from lawyer-free to lawyer-dominated criminal trial happened within the space of about a century, from the 1690s to the 1780s. This book explains how the lawyers captured the trial. In addition to conventional legal sources, Professor Langbein draws upon a rich vein of contemporary pamphlet accounts about trials in London's Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (including reward-seeking thieftakers and crown witnesses induced to testify in order to save their own necks), the judges of the 1730s decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. Langbein shows how counsel manipulated the dynamics of adversary procedure to defeat the judges' design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defense counsel to test the prosecution case.

Author Biography

John Langbein is Sterling Professor of Law and Legal History at Yale Law School. He teaches and writes in four fields: trust and estate law, pension and employee benefit law, Anglo-American and European legal history, and modern comparative law.

Table of Contents

List of Illustrations	xvii
List of Abbreviations	xix
Introduction	1	(9)
A. Overview	2	(5)
B. Criminal and Civil Justice	7	(3)
1. The Lawyer-Free Criminal Trial	10	(57)
A. The Altercation	13	(3)
B. The Rapidity of Trial	16	(10)
1. No Plea Bargaining	18	(2)
2. The Accused as an Informational Resource	20	(1)
3. The Pace of Jury Deliberations	21	(5)
C. The Rule against Defense Counsel	26	(14)
1. Court as Counsel	28	(5)
2. The Standard of Proof	33	(1)
3. The Accused's Advantage	33	(2)
4. The Accused as an Informational Resource	35	(1)
5. The Contrast with Misdemeanor	36	(12)
D. The Marian Pretrial	40	(8)
E. The "Accused Speaks" Trial	48	(13)
1. Pretrial Detention	48	(3)
2. Restrictions on Defense Witnesses	51	(2)
3. Excluding Defense Witnesses?	53	(3)
4. The Burden of Proof Inchoate	56	(1)
5. Trial as a Sentencing Proceeding	57	(3)
6. The Clemency System	60	(1)
7. No Privilege against Self-Incrimination	61	(1)
F. The Plight of the Accused	61	(6)
1. Unpreparedness as a Virtue	62	(1)
2. The Historical Dimension	63	(5)
2. The Treason Trials Act of 1696: The Advent of Defense Counsel	67	(39)
A. The Treason Trials of the Later Stuarts	68	(10)
1. The Popish Plot	69	(5)
2. Fitzharris and College	74	(1)
3. The Rye House Plot	75	(1)
4. The Bloody Assizes	76	(2)
5. Addendum: The Seven Bishops	78	(1)
B. The Critique of the Treason Trials	78	(8)
1. Partiality of the Bench	79	(4)
2. Restrictions on Pretrial Preparation	83	(1)
3. Denial of Counsel	84	(2)
C. The Provisions of the Act	86	(11)
1. The Preamble: Innocence and Equality	88	(2)
2. Disclosure of the Indictment	90	(2)
3. Assistance of Counsel in the Pretrial	92	(1)
4. Trial Counsel	93	(2)
5. Solicitors	95	(1)
6. Defense Witnesses	96	(1)
D. The Restriction to Treason	97	(5)
1. Prosecutorial Imbalance	98	(1)
2. Judicial Bias	99	(1)
3. Complexity of Treason	99	(1)
4. No Systemic Consequences	100	(1)
5. Evening Up	101	(1)
E. Of Aristocrats and Paupers: Treason's Legacy for Adversary Criminal Justice	102	(4)
1. The Wealth Effect	102	(1)
2. The Combat Effect	103	(8)
3. The Prosecutorial Origins of Defense Counsel	106	(72)
A. Prosecution Lawyers	111	(37)
1. The Profession of Solicitor	111	(2)
2. Prosecuting Solicitors	113	(18)
(a) What Solicitors Did: The Mint	115	(5)
(b) Prosecution by the Executive	120	(3)
(c) Solicitors Conducting Private Prosecutions	123	(4)
(d) Magistrates' Clerks as Prosecuting Solicitors	127	(9)
3. Associations for the Prosecution of Felons	131	(5)
4. "Newgate Solicitors"	136	(9)
(a) Misbehaving Solicitors	137	(3)
(b) The 1733 London Grand Jury Presentment	140	(3)
(c) Newgate Defenders	143	(5)
5. Prosecution Counsel	145	(3)
B. Prosecution Perjury	148	(18)
1. The Reward System	148	(10)
(a) Inviting Perjury	150	(2)
(b) The Reward Scandals	152	(169)
2. Crown Witness Prosecutions	158	(9)
C. Making Forgery Felony	166	(1)
D. Defense Counsel Enters the Felony Trial	167	(11)
1. Preserving the "Accused Speaks" Trial	170	(1)
2. Evening Up	171	(1)
3. The Juridical Basis	172	(8)
4. The Law of Criminal Evidence	178	(74)
A. The View from the Sessions Papers	180	(10)
1. The Skew to London	181	(1)
2. Evolution of the Series	182	(1)
3. Scope and Reliability	183	(7)
B. The Character Rule	190	(13)
1. Old Bailey Practice	192	(4)
2. The Rebuttal Exception	196	(3)
3. Delayed Application to Magistrates	199	(4)
C. The Corroboration Rule	203	(15)
1. Exclusion or Mere Caution?	203	(6)
2. Accomplice Exclusion	209	(3)
3. Retrenching in Atwood and Robbins	212	(6)
D. The Confession Rule	218	(15)
1. Crown Witness Confessions	223	(5)
2. Warickshall and the Poison Tree	228	(1)
3. Questioning the Policy	229	(4)
E. Unfinished Business: The Hearsay Rule	233	(14)
1. "No Evidence"	235	(7)
2. Counsel's Influence	242	(3)
3. Cross-Examination as the Rationale	245	(13)
F. Groping for the Lever: Excluding Evidence	247	(5)
5. From Altercation to Adversary Trial	252	(93)
A. Latency	255	(3)
B. Silencing the Accused	258	(26)
1. Production Burdens: The Prosecution Case	258	(3)
2. Persuasion: Beyond Reasonable Doubt	261	(5)
3. "I leave it to my counsel"	266	(7)
4. Parallels in the Pretrial	273	(4)
5. The Privilege against Self-Incrimination	277	(7)
C. Prosecution Counsel	284	(7)
1. The Solicitor's Influence	285	(2)
2. The Duty of Restraint	287	(4)
D. Defense Counsel	291	(20)
1. Cross-Examination	291	(5)
2. Evading the Restriction	296	(4)
3. "Counsel Learned in the Law": The Interaction of Fact and Law	300	(6)
4. The Adversary Ethos	306	(5)
E. Judicial Acquiescence	311	(7)
1. Above the Fray	311	(3)
2. The Unrepresented	314	(4)
F. Jury Trial	318	(13)
1. Muting the jury	319	(2)
2. The Transformation of Jury Control	321	(10)
(a) Judicial Comment	321	(2)
(b) Fining or Threatening Fine	323	(1)
(c) Clemency	324	(1)
(d) Terminating a Trial Short of Verdict	325	(1)
(e) Rejecting Verdict and Requiring Redeliberation	326	(3)
(J) Special Verdicts	329	(1)
(g) From Correcting to Preventing Error	330	(1)
G. The Truth Deficit	331	(14)
1. Truth as a Byproduct	331	(3)
2. The Influence of Capital Punishment	334	(4)
3. The Path Not Taken: English Disdain for the European Model	338	(7)
Index	345