The Origins of Adversary Criminal Trial

The lawyer-dominated adversary system of criminal trial, which now typifies practice in Anglo-American legal systems, developed in England in the eighteenth century. Using hitherto unexplored sources from London's Old Bailey Court, Professor Langbein shows how and why lawyers were able to capture the trial, and he supplies a path-breaking account of the formation of the law of criminal evidence.

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.

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

(4)

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

(4)

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

(3)

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

(4)

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

(2)

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

(6)

2. Crown Witness Prosecutions

158

(8)

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

(6)

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

(2)

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)

(f) 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

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The Origins of Adversary Criminal Trial

Summary

Author Biography

Table of Contents

Supplemental Materials

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The Origins of Adversary Criminal Trial

Summary

Author Biography

Table of Contents

Supplemental Materials

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