The Origins of Adversary Criminal Trial

John H. Langbein

Oxford Studies in Modern Legal History

A great contribution to literature on the history of crime, the history of the legal profession, and the history of eighteenth century London
Highly topical explanation of the origins of the adversary criminal procedure, at a time when the merits of this procedure are being seriously questioned
A detailed and innovative exploration of one of the most distinctive features of the Anglo-American legal system

The Origins of Adversary Criminal Trial

John H. Langbein

Oxford Studies in Modern Legal History

Description

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.

The Origins of Adversary Criminal Trial

John H. Langbein

Oxford Studies in Modern Legal History

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 Corroboration 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

The Origins of Adversary Criminal Trial

John H. Langbein

Oxford Studies in Modern Legal History

Author Information

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.

The Origins of Adversary Criminal Trial

John H. Langbein

Oxford Studies in Modern Legal History

Reviews and Awards

Winner of the Order of the Coif Biennial Book Award

"...an extraordinarily interesting book, based on deep research and advanced in a remarkably cogent fashion."-- TLS

"The Origins of Adversary Criminal Trial is a most valuable study. Langbein has done hard historical spade work, going through scores of dusty forgotten papers to help trace the development. It is exciting to read about the development of hearsay rules, of the right to counsel, and of other rights of defendants. But Langbein's book is also valuable for its relevance to how we interpret and use the law even today. It adds to our understanding of the life of the law."--The Federal Lawyer

"...persuasive and meticulously researched, delivering messages as powerful as they are timely."--Law and History Review