The common law legal system we inherited from England is simultaneously a body of established legal principles and a method for generating new ones.
Its distinguishing characteristic has always been its capacity for change.
In the 17th century, the witch-hunting judge Matthew Hale compared the common law to a wooden ship on a long voyage. As the months stretch into years, every plank in the ship is eventually replaced, and yet it remains the same ship.
At the time of the nation’s founding, our colonial courts were run by the English to English specifications. Thanks to the internet, we can look back in time to see what English trials were like back then. There have been some changes.
In 1776, the epicenter of British criminal law was the Old Bailey, which remains London’s central criminal court to this day. How venerable is the Old Bailey? The City of London’s website tells us: “Daniel Defoe, Oscar Wilde, Dr. Crippen, the Kray Twins, Yorkshire Ripper Peter Sutcliffe … have all faced their providence in the Old Bailey dock.” (Two of these are not like the others.)
Mary Reading faced her providence there, too. The record of her trial, available at oldbaileyonline.org, is dated July 10, 1776, just six days after the American colonies declared their independence, but weeks before anyone in the mother country heard about it.
She was indicted for stealing a silver watch, silver shoe-buckles, a pair of silver knee-buckles and a man’s hat, the property of Thomas Coupland. The summary of evidence begins: “The prosecutor suffered himself to be picked up by a woman; he went to bed with her at her lodgings, and in the morning missed his bed-fellow, and the things mentioned in the indictment.”
Which would make for a juicy scandal today, when the term “prosecutor” refers to a government employee.
But at the time of America’s independence, the word wasn’t a job description. If the victim of a crime wanted the state to enforce its criminal laws, the victim had to lodge a complaint, bring witnesses to court and examine them in front of the jury — in a word, to prosecute. The “prosecutor” was the victim of a crime.
Or, more specifically, the prosecutor was a victim of crime who turned to the state for justice, rather than meekly submitting or else seeking revenge.
Most defendants in the Old Bailey didn’t have lawyers. Mary Reading seems to have conducted her own defense, quite capably. She called a witness who testified to hearing Coupland say he was “much in liquor” on the night in question and couldn’t be certain Reading was the woman he met. She was acquitted.
The modern meaning of “prosecutor” is a relatively recent innovation. New York’s district attorney became an elective office only in 1846, according to Professor Carolyn B. Ramsey. And not until decades later did New York’s DA acquire exclusive authority to present cases to the grand jury, creating the prototype of the system we’re familiar with today, when essentially all criminal prosecutions are brought by the state.
As the title of “prosecutor” passed from victims to the government’s lawyers, so too did control over prosecutions. This had some not-so-obvious consequences. From being the prime mover of a prosecution, the victim became just one witness among many.
Here in New Mexico, and especially in Bernalillo County, it’s no longer unheard of for judges to prevent victims of crime from testifying in their own cases. A victim is just a witness and any witness can be forbidden from testifying at trial if the state violates any provision of the Case Management Order. I’ve known it to happen when a victim misses a pretrial interview with defense counsel.
That makes perfect sense in Law World, because modern prosecutions are concerned with the relationship between the parties, that is, between the state and the defendant. The victim is a third wheel in that relationship.
Writing in “The New Republic,” now-retired federal judge Richard Posner, a Reagan appointee and champion of the conservative Law and Economics school, pointed out the “heavy costs” of convicting an innocent person. He gets no argument there, except perhaps for his aseptic terminology.
By contrast, he wrote, “the main consequence of acquitting a guilty person is merely to reduce, probably very slightly (unless such acquittals become very common), the deterrent and incapacitative effect of the criminal law.”
Acquitting a guilty person also deprives the victim of justice, making a mockery of his or her faith in the government and the promise of its laws. But in Posner’s calculation, that’s not a cost at all, because the victim isn’t a party to the lawsuit.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at [email protected].