FEATURE POST: Law Professor Tom Simmons Reviews New Title, The Origins of Adversary Criminal Trial

Professor Tom Simmons is contributing to the collection development effort of the USD Law Library. Under a recently adopted program, professors make recommendations for titles to be added to the Law Library collection. Consistent with the Collection Development Policy of the Law Library, titles recommended for acquisition by the faculty are given priority consideration. If the recommended title is acquired, the faculty member provides a brief review of the title for publication on the Law Library Blog.

Below Professor Simmons provides the second review for a title acquired under the new program. Thank you Professor Simmons!
 
John H. Langbein, The Origins of Adversary Criminal Trial
(Oxford University Press 2003)

The lawyer-dominated mode of a criminal trial took form, without any preconceived plan or direction, from roughly 1690 to a century later in England. Langbein’s history of this development relies heavily on contemporary published pamphlet accounts at the Old Bailey only recently utilized by scholars. He traces the fascinating development of the modern criminal trial—the origins of defense counsel, of a public prosecutor, of the law of evidence, of the diminishing pressure on the accused to speak on his own defense—are intertwined and interdependent. The changes were almost breathtakingly rapid as the eighteenth century trials at the Old Bailey, which rarely lasted more than half an hour. Writes Langbein: “So characteristic was the brevity of trial that when an exceptional criminal trial lasted for some hours, its duration became a subject of remark.”

Ultimately, however, Langbein is critical of the outcome. He casts the Anglo-American trial with its active evidence-gathering lawyer as disadvantaged relative to European procedure which vests this function in judges or judge-like investigators. He criticizes the advantage the Anglo-American system bestows on the wealthy who can afford to hire skilled counsel and investigations.

It’s regrettable that such an interesting history is narrated by one with a negative view of its accomplishments, but this does not detract from the narrative, skillfully told. Langbein does raise appropriate criticisms of the adversary system, though this reader remains unconvinced in the superiority of the European alternative.