From Exculpatory to Inculpatory Justice: A History of Due Process in the Adversarial Trial
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This paper explores the historical context behind the emergence of the due process value system which lies at the heart of the Anglo-American legal tradition. By demonstrating, in particular, the reformative impact which the emergence of adversarial sensibilities in the late eighteenth century had in relieving the testimonial obligations of an accused, the paper explores the shift which occurred during this period towards an inculpatory model of justice. Significantly, this inculpatory model rejected the pro-prosecutorial bias which had epitomised the pursuit for justice in seventeenth and early eighteenth centuries. Moreover, whereas the antecedent exculpatory justice model was predicated upon the pro-active prosecutorial efforts of the aggrieved victim, this inculpatory programme rejected the victim’s experiential narrative with the State assuming exclusive responsibility for the prosecution of crime. With an accused therefore no longer facing the limited prosecutorial resources of the victim, but rather the unlimited resources of the State, an equality of arms framework emerged to protect his rights. Resulting in a re-configuration of courtroom relations and an elevation of evidential standards, this equality of arms framework prompted the birth of our adversarial legal dynamic and cultivated some of the most important due process values which lie at the heart of our modern trial process.
Cusack, A. (2015) 'From Exculpatory to Inculpatory Justice: A History of Due Process in the Adversarial Trial', Law, Crime and History, 5(2), pp. 1-28. Available at: https://pearl.plymouth.ac.uk/handle/10026.1/8922
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