Chapter

The Limits of Adversarialism

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/9780198262848.003.0006

Series: Oxford Studies in Modern Legal History

The Limits of Adversarialism

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The enactment and implementation of the Prisoners' Counsel Act was followed almost immediately by controversy. The public and the press did not share the unqualified enthusiasm of the Act's promoters for adversarialism, and condemned some of the more zealous displays of defence advocacy under the new procedure as distasteful, deceptive, and immoral. The recurring criticisms in the press of forensic morality prompted an examination in legal literature of the duties of counsel. Some lawyers, particularly Lord Brougham, advocated an uncompromisingly adversarial conception of the duties of counsel which made commitment to the client the first forensic virtue and demanded that counsel exploit all expedient means to obtain the verdict. The predominant view was that there were moral qualifications on counsel's duty to his client, but the limits of adversarialism under this view were difficult to identify with precision.

Keywords: Prisoners' Counsel Act; adversarialism; defence advocacy; Lord Brougham; counsel controversy; trial

Chapter.  18138 words. 

Subjects: History of Law

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