English Legal History and its Materials
Yesterday in class one of the more startling things (at least for me) was that there was no right of appeal from a criminal conviction in the English legal system until 1929. This was surprising because, as Professor Moglen pointed out, we tend to think of the fundamental criminal procedure rules as being always there, holding up the system of justice from the very beginning. But apparently this is wrong - a related point was that people tried for felonies did not have the right to a lawyer until the 1700s, and then only for treason. This makes me curious about a number of things:

1. How many other of the criminal procedure rules that we think of our system as being founded on are actually very recent developments? For example, the "golden thread" that runs through English law of the prosecution's duty to prove a defendant's guilt: I just did a quick google to remind myself where this actually came from, and it's 1935 apparently. Did the judge just make it up then and from then on it was one of the key tenets of the law? It seems that a system that didn't give convicted criminals a right of appeal is unlikely to have been too concerned with the burden of proof. Obviously you can have one fundamental right without the other, but the two rights are part of the same general bundle.

2. What are the differences between common law and civil law countries in relation to the way that the right of appeal in criminal matters developed? In particular, one difference between common and civil law systems is (I think) that in a common law system only the defendant can appeal a verdict. In a civil law system, either the defendant or the prosecution can appeal. When did the right to appeal first appear in civil law systems, and why might it have developed in this different way?

3. The right of a defendant to be legally represented is one of a bundle of rights in the general "equality of arms" category. The other major one is the right of the defendant to know the full extent or the case against him or her, including seeing all the evidence. When did these first enter the law, and when did the right to a lawyer start being a "right", rather than something that might or might not be granted?

-- BeckyPrebble - 18 Sep 2008



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r2 - 23 Aug 2014 - 20:37:45 - EbenMoglen
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