The Trial on Trial: Volume 3 Towards a Normative Theory of the Criminal Trial

by Duff, Antony; Farmer, Lindsay; Marshall, Sandra; Tadros, Victor

• ISBN13: 9781841136981
• ISBN10: 1841136980
• Format: Hardcover
• Copyright: 2007-11-20
• Publisher: Hart Publishing

Summary

The criminal trial is under attack. Traditional principles have been challenged or eroded; in England and Wales the right to trial by jury has been restricted and rules concerning bad character evidence, double jeopardy and the right to silence have been substantially altered to "rebalance" the system in favour of victims. In the pursuit of security, particularly from terrorism, the right to a fair trial has been denied to some altogether. In fact trials have for a long time been an infrequent occurrence, most criminal convictions being the consequence of a guilty plea. Moreover, while this very public struggle over the future of the criminal trial is conducted, there is also a less publicly observed controversy about the significance of trials in modern society. Trials are under normative attack, their value being doubted by those who seek different kinds of process - conciliatory or restorative - to address the needs of victims and move away from the imposition of state power through trials and punishments.This book seeks to develop a normative theory of the criminal trial as a way of defending the importance of trials in our criminal justice system. The trial, it is suggested, calls defendants to answer a charge and, if they are criminally responsible, to account for their conduct. The trial is seen as a communicative process through which the defendant can challenge claims of wrongdoing made against him, including the norms in the light of which those claims are made. The book develops this communicative theory by first making a careful study of the history of trials, before moving on to outline the theory, which is then developed through chapters looking at the practices and principles of trials, alternative regulatory models, the roles of participants, the relationship between investigation and trial and trials as public fora.

Author Biography

R A Duff is a Professor Emeritus in Philosophy at the University of Stirling.
Victor Tadros is a Professor of Law at the University of Warwick.
Sandra Marshall is Professor of Philosophy in the University of Stirling.
Lindsay Farmer is Professor of Law at the University of Glasgow.

Table of Contents

Preface	p. v
Introduction: Theorising the Criminal Trial	p. 1
The Trial Under Attack	p. 1
Why Develop a Normative Theory of the Criminal Trial?	p. 4
Methodology	p. 10
The Criminal Trial and its History	p. 15
Normative Conceptions of the Trial in Historical Perspective	p. 17
Introduction	p. 17
The Trial in History, i: From Proof to Trial	p. 22
The Trial in History, ii: The Altercation Trial C.1400-C.1700	p. 29
The Trial in History, iii: The Adversarial Trial 1700-1900	p. 40
The Trial in History, iv: The Adversarial Trial in the Late Twentieth Century	p. 50
The Criminal Trial and its Values	p. 55
Truth and the Trial	p. 61
Simple Instrumentalism and the Trial	p. 62
What Truth?	p. 70
Why Does Truth Matter?	p. 78
Truth, Proof and Knowledge	p. 87
Truth and Communication in the Trial	p. 93
Instrumentalism and the Rule of Law in the Trial	p. 93
The Defendant's Participation	p. 97
Excluding Improperly Obtained Evidence	p. 102
Evidence of Bad Character and Criminal Record	p. 110
Hearsay and Orality	p. 116
Truth and Calling to Account: Some Problems	p. 119
Calling to Answer	p. 127
Introduction	p. 127
Responsible Citizens	p. 130
Calling to Answer and Calling to Account	p. 142
The Modes of The Trial	p. 149
The Implications of The Institutional Setting of the Trial	p. 153
Applications, Implications and Further Questions	p. 163
Why Call to Answer? The Trial and Criminal Justice	p. 165
Introduction: How Important is the Criminal Trial?	p. 165
Guilty Pleas and Plea Bargaining	p. 169
Punishments Without Trials	p. 180
Diversions from the Criminal Process	p. 184
Non-Criminal Regulation	p. 189
Communicative Participation	p. 199
Introduction	p. 199
What Is Participation?	p. 201
The Defendant's Participation and the Role of Counsel	p. 203
Participation of the Complainant	p. 213
Judgment and Participation	p. 217
Participation and Communication	p. 220
Conclusion	p. 223
The Principle of Integrity	p. 225
Introduction	p. 225
The Foundation of the Integrity Principle	p. 227
The Application of the Principle	p. 241
Conclusions	p. 256
The Public Character of the Trial	p. 259
Introduction	p. 259
Why Public Justice?	p. 262
The Public Hearing	p. 271
Issues in Public Justice	p. 281
Conclusions	p. 285
The Limits of the Criminal Trial: Security, Truth and Reconciliation	p. 287
Introduction	p. 287
Trials and Security	p. 290
Trials, Truth and Reconciliation	p. 294
Reconciliation and Restoration	p. 300
Conclusion	p. 305
References	p. 307
Index	p. 327
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