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ADDRESSING THE ADVERSARIAL DEFICIT IN NON-JURY CRIMINAL TRIALS Maximize

ADDRESSING THE ADVERSARIAL DEFICIT IN NON-JURY CRIMINAL TRIALS

ADDRESSING THE ADVERSARIAL DEFICIT IN NON-JURY CRIMINAL TRIALS

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It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate in jury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This "jurycentredness" as it has been called[1][2] was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury.[3] It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence.[4] Certain commentators have noted that in spite of Thayer's claim that the rules are the "child of the jury",[5] the rules of evidence have proved remarkably resilient in outlasting the demise of the jury.[6] The parent may have ceased to exist in many legal proceedings but the child has lived on.

In recent years, however, there have been signs of the kind of rethinking that Davis called for in civil cases where in certain jurisdictions jury trial has all but disappeared. In England and Wales, for example, the hearsay rule has been abolished and new rules requiring the compulsory exchange of witness statements before trials have shifted the focus of attention away from the rules of evidence at the trial towards the pre-trial discovery process.[7] This has been accompanied by a shift away from comprehensive party control towards court regulation of every aspect of the conduct of litigation.[8]The effect has been a striking change in the character of the English civil trial, as papers delivered at a seminar