LANGBEIN:ORIGINS OF ADVERSARY CRIMINAL TRIAL OSMLH PAPER

by John H. Langbein

The adversary system of trial, the defining feature of the Anglo-American legal procedure, developed late in English legal history. For centuries defendants were forbidden to have legal 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 1690's to the 1780's. 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 thief takers and crown witnesses induced to testify in order to save their own necks) the judges of the 1730's 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. Professor 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 instead became an occasion for defense counsel to test the prosecution case.

Genres: Law

Paperback

First published March 27, 2003

Reviews

[Becca · Rating 5 out of 5]

Amazing book. So thorough and changed the way I thought about history.

[Robin · Rating 5 out of 5]

The Origins of Adversary Criminal Trial was fascinating with the explanation of the "where did THAT come from" in the day-to-day criminal law practice. You can see the system for what it was 250+ years ago and see the sometimes deliberate, and sometimes accidental ways things were changed for the better. Made me think that 250+ years from know what we do will be looked at with a broad sweep and show some good things--that we're too near it to tell it's good, but also bad things--that we're doing on a daily basis. So much has changed, so much remains the same, and so much is left to do.

I didn't have a problem with how the book was written, with lots of technical details and many footnotes. But that's probably because the book was the result of lots of records searches and reading source materials with an academic eye rather than with an eye for the mass market paper back market.