The Origins of Adversary Criminal Trial in America

Carlton F.W. Larson - UC Davis School of Law
Vol. 57
November 2023
Page 1

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.

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