The Criminal Trial Before the Lawyers

Abstract

The common law criminal trial is dominated by the lawyers for prosecution and defense. In the prototypical case of serious crime (felony), counsel take the active role in shaping the litigation and proving the facts for a passive trier. Continental observers, accustomed to a nonadversarial trial in which the court itself has an active role in adducing evidence to inform its own judgment, regard our lawyerized criminal trial as a striking Anglo-American peculiarity. We seldom appreciate that this lawyerized criminal trial looks as striking from the perspective of our own legal history as from that of comparative law. It developed relatively late in a context otherwise ancient. Whereas much of our trial procedure has medieval antecedents, prosecution and defense counsel cannot be called regular until the second half of the eighteenth century. In our historical literature the relative newness of our adversary procedure has not been much emphasized, largely because it could be so little glimpsed from the conventional sources. In the present article, I shall be working mainly from novel sources in order to sketch some key features of the ordinary criminal trial in the period just before the lawyers captured it. I shall suggest that these sources require us to revise some of the received wisdom about the history of the trial, especially about the functions and the relationship of judge and jury.