Victims' Rights: Rethinking Our 'Adversary System'

Abstract

In American legal scholarship and judicial opinions, a picture of our trial system as a two-sided contest between the state and the individual holds us captive. This article uses the Victims' Rights Amendment to rethink some questions about the two-sided structure of our adversary trial system and the system's priorities. There is nothing inconsistent in having a strong and reliable trial system that, at the same time, acknowledges that victims have an interest in the prosecution of a criminal case, including the trial. There is no metaphysical constraint that demonstrates that criminals cases have two, and only two, sides. We need to reconsider whether victims should have a formally acknowledged role in the process, such as the right to attend trials. The experience in other common law trial systems strongly suggests that victims can be more heavily involved in criminal justice.