Chapter

The Complexities of Defence Inequality

David J. A. Cairns

in Advocacy and the Making of the Adversarial Criminal Trial 1800–1865

Published in print January 1999 | ISBN: 9780198262848
Published online March 2012 | e-ISBN: 9780191682414 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198262848.003.0005

Series: Oxford Studies in Modern Legal History

The Complexities of Defence Inequality

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This chapter considers the effect on the form and implementation of the Act of fears of the abuse of advocacy which, it was argued, might impede the investigation of truth and undermine the authority of judge and jury. Defence access to the depositions was likely to aggravate these dangers by arming counsel with foreknowledge of the prosecution case and a documentary basis for the cross-examination of prosecution witnesses. The initially distinct proposals relating to defence by counsel and the depositions thus became linked by a fear of the power of advocacy. This fear did not defeat either proposal, but explains the deletion by the House of Lords of a clause in the Act guaranteeing the prisoner's counsel the last word to the jury, and important restrictions in the 1837 Memorandum on the use of the depositions by defence counsel.

Keywords: prosecution witnesses; defence counsel; defence inequality; advocacy; House of Lords; jury

Chapter.  13895 words. 

Subjects: History of Law

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