The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors

Abstract

In the 1730s English criminal procedure abandoned its centuries-old rule forbidding the defendant in cases of felony to be assisted by counsel. The judges began to allow counsel to examine and cross-examine witnesses on the defendant's behalf, presaging the beginnings of the distinctive Anglo-American adversary system of criminal trial. This article points to two innovations in pretrial practice in the early decades of the eighteenth century that motivated the judges' decision: (1) the increasing influence of solicitors in investigating and preparing witnesses for institutional and private prosecutors; and (2) the growing danger of false witness in prosecutions inspired by a series of reward statutes enacted from 1692 onward. These developments – one-sided lawyerisation and the incentive for false prosecution – unbalanced the old lawyer-free criminal trial and led the judges to allow the assistance of counsel to offset the new advantages of the prosecution.