Carlton F. W. Larson (University of California, Davis) has posted "The Origins of Adversary Criminal Trial in America." The article appears in Volume 57 of the UC Davis Law Review. The abstract:
This Article explains how defense counsel were introduced into American
felony trials. Building on John Langbein’s work on England in The
Origins of Adversarial Criminal Trial, it argues that American
jurisdictions pioneered the use of defense counsel in felony cases, a
practice that was not allowed in England until the 1730s (and then only
in piecemeal fashion). Rejecting some earlier attempts that have sought
to locate this right in the seventeenth century, it argues that the
relevant time frame is the first decades of the eighteenth century, when
American jurisdictions, either by statute or by judicial practice,
extended the right of counsel to felony defendants. Pennsylvania,
perhaps spurred by Parliament’s elimination of jury trials in piracy
cases, took the lead in 1701. The American innovation of defense counsel
for accused felons would eventually spread throughout the common law
world. Famed American defense lawyers, such as the fictional Perry
Mason, are not American copies of English originals, but a distinctive
American creation.
The Article then turns to the most plausible
explanation for this innovation: the parallel development of public
prosecution by lawyer prosecutors. Every American jurisdiction that
recognized felony defense counsel had previously introduced public
prosecutors. But the connection was not necessarily automatic or
immediate. Not every jurisdiction that introduced public prosecutors
recognized a right to felony defense counsel, and those that did often
delayed the introduction by several decades or more. At minimum, the
process was far messier and less predictable than some accounts have
suggested.
Finally, the Article turns to the possibility of
American influences on England. It argues that the American introduction
of felony defense counsel may have made it easier for English courts to
do the same. English judges would have been more likely to adopt a
procedural innovation if they knew that it had been adopted successfully
elsewhere. The Article suggests that the English Inns of Court may have
helped transmit transatlantic legal knowledge, and it identifies
specific American members of the Inns who could have played a crucial
role. Although direct evidence on this point will likely remain elusive,
it is plausible that the American introduction of felony counsel
contributed to the rise of such counsel in England. Unlike many other
areas of common law, where American courts simply followed English
practice, this aspect of English law may have deep American roots.
The full article is available here.
-- Karen Tani
