Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

Abstract

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

Adversarial Culture, Adversarial Doctrine: Cross-Examination and Leading Questions inThe State Trials on CD-ROM

“…44 At first, defence counsel appeared in only a trickle of felony cases, but in the late eighteenth century -92 LEGAL HISTORY beginning, say, around 1775 or 1780 -the percentage of felony defendants who were represented by counsel began to increase dramatically. 45 Precisely why this increase occurred is a question I am exploring in ongoing scholarship. For present purposes the point to notice is that, despite the growing use of defence counsel in felony cases, the rule against speaking to the jury remained in force 46 until it was lifted in 1836 by the Prisoner's Counsel Act.…”

Relativism and Universalism in Interrogation Fairness: A Comparative Analysis Between Europe and China

“…In practice, the accused was legally obliged to formulate a factual defence and, at the same time, to counter the prosecution's factual evidence as it unfolded. Even when the accused was provided with defence counsel around the middle of the eighteenth century, the counsel's role was strictly limited to advice on legal issues, never on factual matters (Beattie, 1991). The underlying assumption was that innocent defendants could easily persuade the jury of their innocence.…”

Making the Sodomite Speak: Voices of the Accused in English Sodomy Trials, c.1800–981

“…11 Furthermore, most people relied on their own efforts because they were unable to afford lawyers to present their case. 12 However, John Langbein dates the decline of this model from the 1730s onwards, thereby gradually distancing the defendant, and implicitly the court, from the facts. Overall, Langbein concludes, the alienation of the accused from his own defence evolved gradually in the eighteenth century as a set of rules intended mainly to protect him from changes in the nature of procedure and evidence which favoured the prosecution.…”