Adversarial Trials Research Articles

A Dynamic Theory of Prosecutorial Roles in Adversarial Trials

AbstractProsecutors in adversarial systems are simultaneously expected to be impartial ministers of justice and partisan advocates. Leaving this tension unaddressed can result in poor-quality prosecutorial decision-making. This article develops a novel “dynamic” framework for prosecutors to navigate between and prioritize these competing considerations, which can be used to understand, evaluate, and improve prosecutorial performance. Under this framework, the prioritization should depend on which function the prosecutor is exercising at any given time. The article then deploys primary data collected in Delhi, through court observation and interviews with judges, lawyers, victims, and victim-support persons, to exemplify and justify the framework.

Backstage at the Barristers’ Case Conference: A Dramaturgical Analysis

Socio-legal ethnographies have focused largely on the dramaturgical themes present in the competing performances seen in adversarial trials. Drawing on ethnographic observations of British homicide investigations, we illuminate the hidden “backstage” space of prosecution barristers’ case conferences. Using Goffman’s dramaturgical framework, we analyze the interactions, deliberations, and negotiations that are enacted between barristers, homicide detectives, forensic scientists, and other specialists. To our knowledge, the work that happens in these conferences has never been documented. Our findings reveal how prosecution narratives evolve and are tested behind the scenes before being performed in court. We pay particular attention to the role of anticipatory work in guiding how criminal justice actors choreograph the prosecution case. The findings add to our understanding of narrative case building and elaborate Goffman’s dramaturgical framework. We discuss the implications of our findings for due process.

Resilience-building in Adversarial Trials: Witnesses, Special Measures and the Principle of Orality

Using Fineman's vulnerability theory, this paper argues that the traditional adversarial approach to examining witnesses in criminal trials – premised on the principle of orality – reduces the resilience of those giving evidence. This is because the adversarial setting often leaves those testifying in a heightened state of stress, reducing the quality and reliability of their evidence as a result. In turn, this traditional approach to securing oral witness testimony in criminal trials loses resilience, in that it becomes more difficult to justify as the general approach. The use of special measures – to adjust the way testimony is given and ameliorate some of the associated stressors – provides resilience to the individual testifying, the robustness of their evidence, and the safety of consequent criminal verdicts. The positive effects special measures yield therefore lend additional resilience to our commitment to the principle of orality and the principles upon which it rests. This article concludes that the State should maximise such resilience-building through more generous special measures provision.

The politics of the lex Aquilia

Summary Centuries of interpretation by sophisticated Roman jurists developed a comprehensive and nuanced law of damage to personal property, based on the republican lex Aquilia. This lex originated from a plebiscite and the plebeians must have pursued a comprehensible political purpose. That purpose is to be found in the ‘access to justice’ problem inherent in the legis actio per sacramentum procedure, which hindered cash-poor plebeians from engaging in adversarial trials. This grievance became pressing in the aftermath of the last secessio plebis (ca. 287 BCE) when vast amounts of property damage and destruction awaited judicial redress. For the most heinous deeds, the killing of slaves and cattle, a manus iniectio procedure was instituted that incentivised uncontested payment of reparations based on a confessio in iure. In the context of this reform, other elements of the lex Aquilia can be reconsidered, inter alia the reliance on a price from the preceding year and the mysterious Chapter II.

The German “Verständigung” and Consensual Elements in German Criminal Trials

AbstractNegotiated agreements in criminal proceedings have often been regarded as the embodiment of a negative wider trend towards the informalization of the criminal procedure, and have—especially in Germany—long been the subject of vivid controversies. A criminal proceeding in the traditional sense aims to establish the truth ex officio, which is achieved by means of a comprehensive inquiry into the facts conducted by the court during the trial, followed by a sentence that appropriately reflects the individual guilt of the defendant, which can then, in turn, achieve the procedural objective of “justice.” A streamlining of the extensive inquiry into the facts that the court would normally have to conduct via the consensual process of negotiation does not, a priori, fit the mold of a criminal procedure in the aforementioned sense. At the same time, the consensual termination of criminal proceedings—which also includes other forms of termination of the proceeding besides the concept of Verständigung, which occur by means of a preferment of public charges—is, in fact, more prevalent in practice these days than judgments rendered in adversarial trials are. Our Article focuses on the reasons why this stark contrast between legal doctrine and reality came to pass and which aspects of the implementation of the concept of consensus into the German law of criminal procedure still seem problematic.

Constitutional amendment in Laos

Abstract Laos, a socialist state in Southeast Asia, adopted an amended Constitution in 2015. This article investigates and explains this experience from the perspective of comparative constitutional amendment, supported by a qualitative empirical methodology: extensive formal interviews with several local constitutional amenders and informal conversations with a local lawyer and several legal scholars. It argues that Laos has introduced progressive constitutional amendments—notably, the redefinition of the position, structure, and functions of state institutions, including the imposition of term limits on executive power holders; strengthened commitment to a market economy; new commitments to human rights protection, judicial independence, and adversarial trials; and the creation of new institutions, namely, the local people’s councils, the state audit, and the election committee—to facilitate the improvement of its socialist constitutional system which in turn will promote the improvement of the material well-being of the living conditions of local people.

La capacitación de las partes: una problemática en el nuevo sistema de justicia penal adversarial

El presente trabajo se elabora en virtud de la entrada en vigor de un nuevo modelo de justicia penal adversarial juicios orales, que sustituye a un modelo de justicia escrito penal conocido como inquisitivo, que cambió radicalmente la forma de procuración y administración de justicia penal en el país, pero lo anterior, implica capacitar a las partes que intervienen en el proceso penal, incluso la actualización de los planes y programas de estudio de las Universidades públicas y privadas.

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.

Criminal Justice Reform in Mexico:an Overview

This article examines the package of constitutional and legislative reforms approved in 2008 with the goal of improving the Mexican criminal justice system. These reforms included new criminal procedures (oral adversarial trials, alternative sentencing, and alternative dispute resolution mechanisms), stronger due process protections for the accused, police and prosecutorial reforms to strengthen public security, criminal investigations, and new measures to combat organized crime. The author explains the procedural and institutional changes involved in the reforms. He argues that, while there has been significant progress in several states, there are several challenges for judicial reform in Mexico over the short-term, medium-term, and longer term. These challenges include the need to better coordinate across branches of government to establish new regulations and statutes; the need to properly prepare a wide array of judicial sector personnel to implement the new system; the need to construct new physical infrastructure for live, video-recorded court proceedings; and the need to properly monitor and evaluate the performance of the new system.

Legal decision making among Korean and American legal professionals and lay people

Based on van Koppen and Penrod (2003)’s argument that the trial system with fewer wrongful convictions should be considered the “better” system, this study compared inquisitorial and adversarial trials by evaluating the quality of legal decision making of legal professionals and lay people in relation to the assessment of trial evidence and guilt probabilities in South Korea and the United States. Two legal decision making models suggest that inquisitorial trials yield higher guilt probabilities than adversarial trials. The introduction of expert testimony reduces the damaging effects of the confession evidence to a certain degree. When the confession evidence and the expert testimony are introduced in an adversarial trial, lay people utilize expert testimony to critically evaluate the confession evidence. Legal professionals and lay people evaluate and weigh evidence differently, but their overall performance is comparable. Implications for the Korean lay participation system are discussed.

German and Swedish procedures as models for the empowerment of racial minority women in rape trials

Drawing on the concept of intersectionality developed by Crenshaw, this article analyses the erasure of racial minority women in rape cases, and assesses the ways in which English adversarialism compounds this erasure. It outlines the contours of a transformative procedure for rape trials that includes racial minority women's experiences of intersectional oppression. Based on a comparative analysis of German and Swedish law, it contends that the introduction of auxiliary prosecutors or victims' lawyers in the U.K. would contribute to the generation of a space for the inclusion of such experiences within adversarial trials. It invokes recent jurisprudence of the European Court of Human Rights, as well as Council of Europe provisions, to argue that auxiliary prosecutors or victims' lawyers would not infringe defendants' right to a fair trial, and concludes that objections to their introduction in the U.K. are not persuasive.

No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts

Plea bargaining and other informal disposition devices dominate case processing in the lower criminal courts. Consistently, studies have found such courts characterized by assembly-line procedures, deemphasis or disregard of formal due process rights, and guilty plea rates approaching 100% of all convictions. Caseload pressures, tendencies toward cooperation among courtroom participants and, above all, process costs of litigation that greatly outweigh the stakes in minor cases are widely thought to render informality and high guilty plea rates inevitable. The study reported here challenges these assumptions. The author finds that in Philadelphia roughly one-fifth of all misdemeanor dispositions and one-half of all determinations of guilt are the result of genuine adversarial trials. He shows that an adversarial trial system need not impose prohibitive resource costs, even when extended to misdemeanor cases involving little likelihood of imprisonment, and that process costs will not deter defendants from invoking formal procedures when the court culture is committed to providing trials. Finally, the author argues that even routine misdemeanor cases benefit from guarantees of fairness and accuracy afforded by trial but unattainable when cases are processed by plea bargaining.