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The Origins of Adversary Criminal Trial

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.
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Table of Contents

INTRODUCTION ; 1. The Lawyer-Free Criminal Trial ; The Altercation ; The Rapidity of Trial ; The Rule Against Defence Counsel ; The Marian Pretrial ; The 'Accused Speaks' Trial ; The Plight of the Accused ; 2. The Treason Trials Act of 1696: The Advent of Defense Counsel ; The Treason Trials of the Later Stuarts ; The Critque of the Trials ; The Provisions of the Act ; The Restriction to Treason ; Of Aristocrats and Paupers: Treason's Legacy for Adversary Criminal Justice ; 3. The Prosecutorial Origins of Defence Counsel ; Prosecution Lawyers ; Prosecution Perjury ; Making Forgery Felony ; Evening Up: Defense Counsel Enters the Felony Trial ; 4. The Law of Criminal Evidence ; The View From the Sessions Papers ; The Character Rule ; The Corroboraion Rule ; The Confession Rule ; Unfinished Business: The Hearsay Rule ; Groping for the Lever: Excluding Evidence ; 5. From Altercation to Adversary Trial ; Latency ; Silencing the Accused ; Prosecution Counsel ; Defense Counsel ; Judicial Acquiescence ; Jury Trial ; The Truth Deficit

About the Author

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.


... this book consolidates and expands numerous important themes that Langbein has done so much to develop in an exceptionally clear and systematic way. It will be essential reading for anybody who wishes to understand the procedural dynamic that underpinned the changing face of the eighteenth century English criminal trial. The Cambridge Law Journal Professor Langbein's latest book helps to complete a picture that has been built up in his previous work and enhances his reputation as a leading, if not the leading, historian of Anglo-American and European legal procedures. British Journal of Criminology ... a fascinating account of how the adversary criminal trial came about. British Journal of Criminology ... here at last is a clear, convincing and authoritative account of how the English adversary criminal system came into being. The sources are well marshalled to create a most readable text. British Journal of Criminology ... an immensely stimulating read and draws together the threads of a body of work which has helped transform our understanding of eighteenth century criminal procedure. Law Quarterly Review John H. Langbein has written an extraordinarily interesting book, based on deep research and advanced in a remarkably cogent fashion. H. T. Dickinson, Times Literary Supplement ... informative and stimulating. H. T. Dickinson, Times Literary Supplement

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