Criminal Trials, Foucault, Discourse

Abstract

The adversarial criminal trial is held out as the model by which accusations of wrongdoing are heard and determined in common law jurisdictions. Debate abounds, however, as to the form that the modern criminal trial ought to take. This debate is characterised by diverse opinions which range from the safeguarding of the adversarial trial as the only means by which defendant rights will be successfully protected against abuses of state power, such as charges brought on the weakest of evidence, police misconduct, false accusations or political imperative. Others suggest that the scope of the adversarial trial, as an exclusive contest between police, prosecution and defendant, and as presided over by an independent magistrate or judge, represents a model of justice that is in decline, or at least requires rethinking (see Schwikkard, 2008; Summers, 2007; Nonet and Selznick, 1978; Simon, 1978). Such perspectives suggest that the trial and adversarial model more generally ought to be construed in terms of those procedures significant to the functions of justice — the requirement of a ‘fair trial’ that seeks to balance the competing needs of witnesses, victims, defendants, the community, and state. Various common law jurisdictions have now moved away from the strict requirements of the adversarial trial to other innovative or nuanced modes of determining liability for wrongdoing, or in meting out punishment following conviction.