The Impact of Lawyers in the Criminal Trial Procedure in 18th and 19th Century

Lawyers have not always taken part in the criminal trial process. Prior to the second half of nineteenth century, not all offenders had the privilege to be represented, or prosecuted by counsel. Misdemeanor was one of the first cases that allowed defence counsel. In 1696, Parliament responded to a variety of scandalous treason trials (which resulted in the execution of innocent people) by allowing defendants to be represented by counsel in treason cases. By 1720's and 1730's, it was becoming more common for defence and prosecution lawyers to appear on both sides of trials. By 1730, judges began to permit counsel for defendants in felony cases sporadically. However, it was not until 1836, that the Prisoner's Counsel Act established that persons accused of criminal offences could be legally, and fully represented by counsel. During this lengthy period, lawyers acted as defence counsel as best they could, given the considerable amount of restrictions they faced. As lawyers began to appear in criminal trials, the procedure, and role of the other trial participants gradually changed. Their participation contributed to the criminal trial system, and helped to fully develop the adversarial system as it emerged by the middle of the nineteenth century. This paper will discuss the impact of the entry of lawyers into the criminal trial, the Prisoners Counsel Act, as well as the impact on evidence, procedure and the roles of trial participants.

Before the 1700's, the absence of lawyers was regarded as fundamental. Their participation in criminal trials was seen as detrimental. It was strongly believed that insomuch that the accused needed counsel the judge took the role upon himself to assist them. Trials were organized around the notion that a verdict had to be made by the judges or jurors discretionary decision. This decision had to be based on the unmediated exchange between the prosecutor and the defendant. Trails from this time were much different than trials today.

Criminal trials were typically very brief. On Average they were no more than half an hour. There was not a great amount of evidence introduced; the victim usually introduced the facts at issue, and gave their evidence orally. The judge acted as the examiner and cross-examiner. If there were any questions on behalf of the defendant and the juror, these questions would be expressed openly, in an unorganized fashion.

The main purpose of the trial was usually for the judge and juror to determine whether the gravity of the offense warranted death or a lesser sanction. During trial, prisoners were required to conduct their own defence, as well as witness, advocate, and cross-examine. Trial was an opportunity for the judge and juror to assess the offender's explanation for each alleged fact. It was also the occasion in which the accused had the opportunity to respond to the victim's accusations. Both pre-trial and trial were