The Criminal Trial as Social Discourse

Abstract

The trial has taken many forms over the course of the history of the common law. The form the trial has taken directly relates to the needs being satisfied by the trial at any given time. This argues against the notion that the trial, much like the broader criminal law, is shaped by general principles that have existed as part of the common law from time immemorial. To the contrary, the determination of the means and processes by which accusations of wrongdoing are heard and determined are largely the product of customary, social and political relations and it is not possible to exclude certain persons, parties, institutions or groups as bearing influence on the form that the trial ought to take. To this end, the trial as the manifestation of the means by which accusations of guilt are heard and determined, are not exclusive to the interests of select parties, but are inclusive of many voices and perspectives relevant to criminal law and justice. These voices are personal as well as institutional, and include victims, defendants, prosecutors, the Crown, the state, statutory authorities and the public at large. While it is not possible to give voice to each of these participants at each point in the process for the determination of criminal liability, we should guard against any attempt to exclude any one ‘voice’ as irrelevant or detrimental to justice. The controversy, rather, is in the balance of these voices and perspectives.