Review: The Origins of Adversary Criminal Trial
| Author | Lord Justice Hooper |
| Published date | 01 July 2004 |
| Date | 01 July 2004 |
| DOI | http://doi.org/10.1350/ijep.8.3.206.40869 |
| Subject Matter | Review |
206 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
REVIEWS
John H. Langbein
THE ORIGINS OF ADVERSARY CRIMINAL TRIAL
Oxford: Oxford University Press (2003) xxii + 354pp, hb £30
This fascinating and compelling book traces the development of the common
law adversarial tradition from the 16th until the 19th century, a tradition which
remains much in evidence today in spite of many changes, often only cosmetic.
The author relies heavily upon a rich source of information, the Old Bailey Sessions
Papers. In the words of Professor A. W. Brian Simpson, the General Editor of the
Oxford Studies in Modern Legal History series to which this book is the latest addition,
they are a goldmine the importance of which no other scholar has grasped.
Prior to the end of the 17th century, the criminal trial ‘was expected to transpire
as a lawyer-free contest of amateurs’. Professor Langbein describes the trial as an
‘Altercation’, a term used by Sir Thomas Smith around 1565. The judge supervised
the altercation, would question the witnesses, and could ensure that the ‘right
verdict’ was returned. This could be achieved, until Bushell’s Case in 1670, by fining
and imprisoning jurors, and—both before and after Bushell—by the judge expressing
his views strongly. (So strongly was this judicial prerogative often exercised that,
following Independence, American states largely forbade trial judges from
commenting on the evidence.) The accused, acting as his own defender, was an
‘informational resource’, to use Professor Langbein’s description. To challenge
the account given by the prosecution witnesses, he had to give his own version of
events (albeit unsworn until 1898), if a conviction was not to be inevitable. In the
words of Hawkins quoted by the author, ‘the very Speech, Gesture and
Countenance, and Manner of Defense of those who are Guilty, when they speak
for themselves, may often help to disclose the Truth, which probably would not
be so well discovered from the artificial Defense of others speaking for them’.
The author compares the ‘Altercation’ with the adversary trial which developed
by the second half of the 18th century, in which (if the funds were available for
their fees) the lawyers dominated and the judge and defendant played subordinate
roles or, in the case of many defendants, no role at all. Professor Langbein shows
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 206–213
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