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Response
John H. Langbein
Published online: 24 May 2006.

To cite this article: John H. Langbein (2005) Response, The Journal of Legal
History, 26:1, 99-104, DOI: 10.1080/01440360500034651

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 Response

JOHN H. LANGBEIN
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In their generous remarks about The Origins of Adversary Criminal Trial,

Drs Lemmings and May and Professor Alschuler have each raised questions
that I welcome the opportunity to address.

I. SILENCING THE ACCUSED

One of the most striking contrasts between modern Continental and Anglo-
American criminal trials is the role of the accused. In Europe, the accused
speaks early and often, both about his background and about the events. In
the German code of criminal procedure, for example, virtually the only limit-
ation on the court’s discretion in ordering the proofs is the requirement that
the presiding judge must begin with the accused.1 To be sure, the accused has
the right to remain silent and must be so instructed,2 but he virtually never
ercises it. His right to shape the court’s consideration of his case is valuable,
and he will not be subjected to partisan cross-examination or impeachment of
the Anglo-American sort as the price of speaking up. In England, too, until
the eighteenth century, when defence counsel began to be allowed, the
pattern of the trial was that the accused spoke incessantly. Today, in an
Anglo-American trial the accused is either wholly silent or is examined at the
very end of the trial, when the lawyers and other witnesses have shaped the case.
In The Origins I explain how the lawyers’ increasing domination of trial
led to the silencing of the accused and also contributed to the muting of
trial jurors. Into the eighteenth century cases would occasionally occur in
which a juror would remark on the evidence or pursue a line of questioning.
In the later eighteenth century, under pressure from counsel, this sort of
juror participation died out.
David Lemmings attributes the silencing of the accused and the jurors to a
larger ‘story of professionalization in law and governance’, which brought
about a ‘marginalization of lay people’. He sees this trend further evidenced
in the diminished roles of witnesses. Lawyers took increasing control of

1
Strafprozessordnung (StPO) § 243 (II), (IV).
2
StPo § 136 (II).

The Journal of Legal History, Vol. 26, No. 1, April 2005, pp. 99–104
ISSN 0144-0365 print=1744-0564 online
DOI: 10.1080=01440360500034651 # 2005 Taylor & Francis Ltd.
 100 L EG AL HIS TORY

witness testimony, deciding whom to call, preparing (schooling) the witness

for testifying, and conducting the examination and cross-examination at trial.
In my view, ‘professionalization’ is not an adequately precise account
of these developments. The cause was not mere professionalization, but the
particular form that professionalization took in England, which was to allow
partisan lawyers to dominate the gathering, production and presentation of
evidence to a court whose members (judge and jury) were otherwise largely
ignorant of the events. Professionalization was at least as characteristic of
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Continental criminal procedural systems, but it did not have the effect of silen-
cing the accused and subordinating witnesses to counsel’s script as happened
in England. Accordingly, I think this outcome was not an inevitable conse-
quence of professionalization, but rather an attribute of the distinctively
English adversary system of trial.
The Origins is centred on the period from the 1680s to the 1790s, when
defence counsel enters and then transforms the trial. In 1836, defence
counsel completed his ascendancy over the accused, when the Prisoner’s
Counsel Act3 allowed counsel to make opening and closing statements on
behalf of his client, as prosecution counsel had always been allowed to do.
The Act was meant to even up for the prosecution’s former advantage. Allow-
ing defence counsel to take over from the accused the work of rebutting the
prosecution case completed the silencing of the accused. Allyson May,
whose important new book on the Old Bailey bar4 reviews the circumstances
surrounding the enactment of the 1836 Act,5 remarks in her present paper on
an intriguing aspect of those events, which is carefully documented in her
book: there was considerable opposition to the Act among the bench and in
the profession. One notable ground of contemporary objection was that,
because there was as yet no systematic provision of lawyer prosecutors,
a reform (admitting defence counsel) that was designed to even up for the
advantages of the prosecution might have the effect of unbalancing criminal
trials in favour of the accused in cases in which the accused had counsel
but the prosecutor did not.6

II. THE FAILURES OF THE PRE-TRIAL

A central theme of The Origins is that the triumph of adversary procedure in

the English criminal trial traces to the failures of the pre-trial system, that is, to
the primitive and defective arrangements for investigating crime, gathering
evidence and bringing criminal prosecutions. The core failing was the

3
6 & 7 Wil. 4, c.114 (1836).
4
Allyson N. May, The Bar and the Old Bailey, 1750–1850, Chapel Hill, NC, 2003.
5
May, at 176–201.
6
May, at 201.
 RESPONSE BY JOHN H. LANGBEIN 101
refusal to develop professional policing and prosecuting commensurate with
the needs of an urban commercial age. Leaving detection and prosecution
to the victim-volunteer, aided by the village constable and justice of the
peace, might still by the eighteenth century have been adequate in the country-
side, but it was not in London.
Accordingly, the crown and the London authorities undertook to reinforce
the inherited system in a variety of ways discussed in the book. Increasing use
was made of solicitors to build the prosecution case and counsel to present it.
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The crown designated and funded the so-called court JP (justice of the peace)
for Middlesex to lead complex investigations and help prosecute serious cases.
Further, a pair of techniques was devised to enhance incentives to prosecute.
Beginning in the 1690s, the reward system took shape, offering huge sums (for
some decades routinely £140 a head in London, several times the annual wage
of a skilled craftsman) for successfully prosecuting persons accused of certain
serious felonies. The other innovation, the crown witness system, allowed an
offender who had been caught and faced likely conviction and execution to
escape unpunished in return for his testimony against supposed confederates.
Both the reward system and the crown witness system harboured grievous
inducements to false witness, which came increasingly to be recognized as
cases came to light in which it was learned that innocent persons had been con-
victed and executed on the perjured testimony of reward-seekers. I explain in
The Origins that the judges’ decision to admit defence counsel in the 1730s
and their later elaboration of the lawyer-friendly law of criminal evidence
was the judges’ response to the dangers of perjured evidence inherent in
these measures. In this way, the adversary system of trial traces back to the
failures of the pre-trial.
Dr May’s paper in this set, echoed in other reviews of The Origins,7 raises
what I regard as a lame excuse for the English reluctance to institute pro-
fessional policing and prosecution in time to head off the lawyers’ capture
of the trial. The English, she says, were alarmed at the civil liberties impli-
cations of police forces and professional prosecutors – they ‘have quite
simply feared the state more than they have feared criminals’. David Philips
has extensively documented this strand of opposition to policing,8 which
endured long into the nineteenth century. Similar objections prevented the
orderly development of public prosecution into the twentieth century.9 May

7
E.g., H.D. Dickinson, ‘Lawyer-free Trials’, Times Lit. Supp., 6 June 2003, 27; Stephen Sedley,
London Rev. Books, 25 Sept. 2003, 15.
8
David Philips, ‘A New Engine of Power and Authority: The Institutionalisation of Law-Enforce-
ment in England 1780–1830’, in V.A.C. Gatrell, Bruce Lenman and Geoffrey Parker, eds., Crime
and the Law: The Social History of Crime in Western Europe since 1500, London, 1980, 155.
9
Philip B. Kurland and D.W.M. Waters, ‘Public Prosecutions in England, 1854–1879: An Essay
in English Legislative History’, Duke Law Journal (1959), 492.
 102 L EG AL HIS TORY

recounts the remarks of the future Earl of Dudley, who ‘argued in 1811, the
year of the famous and terrifying Ratcliffe Highway murders, in which two
families were murdered in their beds, that he “had rather half a dozen
people’s throats should be cut in Ratcliffe Highway every three or four
years than”’ be subject to the dangers of French policing. Speaking of this
‘generous offer of other people’s throats for the cutting’,10 David Philips
has observed that such attachment to civil liberties was easy for a person
such as the Earl, who did not live in dangerous neighbourhoods such as the
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Ratcliffe Highway.
Police are indeed dangerous, even when well-trained, well-led and well-
monitored. But urban street and gang crime is more dangerous. There was
ample reason for the contemporary English to know that freedom from
policing in an urban commercial metropolis resulted in less liberty, not
more. All criminal justice systems strike a balance between safeguard and
repression. The deep puzzle is why the concern about civil liberties inherent
in having an effective police force was so much more salient in England
than on the Continent. England (and the English-derived systems such as
that of the United States11) alone resisted developing until the mid-nineteenth
century a workable state-funded and state-conducted system for investigating
and prosecuting crime. The privatized adversary system arose in England in
the eighteenth century in consequence of that failure – after which the
English had nonetheless to develop institutions for public policing and
public prosecution in the nineteenth and twentieth centuries.

III. NORMATIVITY
As a scholar of comparative law, I have often written about the contrast
between the court-conducted procedures of the Continental systems and the
lawyer-dominated procedures of the Anglo-American systems. I have
explained what I think is wrong with the adversary criminal and civil pro-
cedure, and why I think the Northern European legal systems, exemplified
for me by the one I know reasonably well, the German, are more effective,
more efficient, and above all more accurate.12 Accordingly, in my historical
work I have been trying to understand the origins of a procedural system

10
Philips, ‘A New Engine of Power and Authority’, 174.
11
For a concise account of the American history, see Stanley H. Palmer, Police and Protest in
England and Ireland: 1780–1850, 1988, Cambridge, 19–23.
12
Regarding criminal procedure, see John H. Langbein, ‘Money Talks, Clients Walk’, Newsweek,
17 April 1995, 32–34; John H. Langbein, ‘Mixed Court and Jury Court: Could the Continental
Alternative Fill the American Need?’, American Bar Foundation Research Journal (1981),
195; Langbein, ‘Land Without Plea Bargaining: How the Germans Do It’, 78 Michigan Law
Review (1979), 204; John H. Langbein, Comparative Criminal Procedure: Germany, St. Paul,
MN, 1977. Regarding civil procedure: John H. Langbein, ‘Cultural Chauvinism in Comparative
 RESPONSE BY JOHN H. LANGBEIN 103
whose shortcomings I think are manifest. I decided after some hesitation that it
would be best to write The Origins in the fashion that I conceived of it, as a
work of historical pathology, addressed to the question of how we got stuck
with this loser.
There is undeniable discomfort about directing historical scholarship to
modern policy questions in the way that I have done. So-called presentism
can be distorting. Professor Alschuler’s paper speaks of that problem, but
comes to my defence in this instance. I will add a brief word of self-defence.
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In the book’s introduction, I summarize the critique of adversary criminal

procedure that I have developed elsewhere. The core fallacy of the adversary
trial is the idea that the truth will emerge even though no one is made respon-
sible for seeking it. The dynamic of adversary procedure is truth-disregarding,
and often truth-defeating. The partisan lawyers who conduct the procedure are
seeking victory, not truth. Too often winning entails tactics that distort or
suppress the truth, for example, concealing relevant witnesses, withholding
information that would help the other side, preparing witnesses to affect
their testimony at trial (coaching), and engaging in abusive cross-examination.
I call this dimension of the system the combat effect. Another grievous defect
of adversary procedure is the immense advantage it confers upon persons who
can afford to hire skilled lawyers, and to pay for party-conducted investi-
gation, which I call the wealth effect. Because most persons accused of
serious crimes are indigent or near indigent, the wealth effect is a profound
structural flaw in adversary criminal procedure. That flaw is hardly offset by
the opposite excess, seen lately in the celebrated O. J. Simpson case, in
which wealth gave the moneyed defendant the upper hand.
Articulating these problems has shaped the research and the writing of The
Origins. The book emphasizes, for example, how history helps illumine the
wealth effect. In Chapter 2 of the book, I explain that the lawyer-dominated
criminal trial was initially devised as a special-purpose procedure for cases
of treason, to which Parliament carefully restricted it (in the Treason Trials
Act of 169613). Treason defendants were, however, commonly affluent grand-
ees for whom the wealth effect was if anything an advantage rather than the
catastrophic disadvantage that it is for most criminal defendants. The book
explains how this adversary procedure seeped into ordinary felony trials
when the judges, alarmed by the perjury risk from reward-driven or crown-
witness-based prosecutions, began in the 1730s to allow felony defendants
to have counsel to cross-examine accusing witnesses. In this way, a procedure
devised to help aristocrats fend off trumped-up charges of treason came to be

Law’, 5 Cardozo Journal of International and Comparative Law (1997), 41; John H. Langbein,
‘The German Advantage in Civil Procedure’, 52 University of Chicago Law Review (1985), 823.
13
7 Wil. 3., c. 3 (1696).
 104 L EG AL HIS TORY

transposed to felony trials, with scant attention to how ill the adversary system
fit a cohort of pauper defendants accused of stealing sheep or shop goods. As a
practical matter, I do not think that I would have had occasion to investigate
the historical origins of the wealth effect had I not been troubled by its impli-
cations for the modern law.
I concede fully the danger that in allowing modern policy debates to frame
historical research, we risk inflicting today’s agenda on historical sources that
were differently oriented. On the other hand, we respect history when we
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consult it carefully for the historical roots of modern problems. I admit that
I brought a normative perspective to the work of researching and writing
The Origins, my long-held policy view that the Anglo-American adversary
system is a deeply flawed way to organize a legal system. I hope that
by being candid about that viewpoint, and by attempting to be faithful to
the historical sources, I have written an account that will find favour as
history even with admirers of adversary procedure.