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The Origins of Adversary Criminal Trial$
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John H. Langbein

Print publication date: 2005

Print ISBN-13: 9780199287239

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199287239.001.0001

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From Altercation to Adversary Trial

From Altercation to Adversary Trial

(p.252) 5 From Altercation to Adversary Trial
The Origins of Adversary Criminal Trial

John H. Langbein

Oxford University Press

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.

Keywords:   adversary criminal trial, beyond reasonable doubt, burden of proof, criminal defendant, defense counsel, judges, self-incrimination, production burden, prosecution

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