Fan on the Adversarial Revolution's Casualties

Mary Fan (University of Washington - School of Law) has posted The Adversarial Revolution's Casualties (Boston College Law Review, Vol. 55, Forthcoming) on SSRN. Here is the abstract:

The adversarial model of criminal adjudication presumes that truth and justice will emerge from combat between the defense and prosecution. The model gives partisan lawyers the dominant role in establishing the facts through confrontation, cross-examination and pretrial discovery. Over the last decades, the Supreme Court and some state courts have constitutionalized an increasingly rigid and broad vision of adversarial adjudication’s requirements. Commentators often celebrate this adversarial revolution as expanding defendants’ rights of confrontation, cross-examination and self-representation at the expense of prosecution power. Yet the adversarial revolution also has created an arsenal of tactics to retraumatize victims of sexual assault and general violent crime. The courts and legislatures are in disarray about what to do to protect at-risk victims. 

This article challenges the rigid application of adversarial ideals historically forged for prosecutions for crimes against the sovereign such as treason or seditious libel to crimes of sex and violence involving victims. The article argues that a distinction must be made between the core category of crimes against the state, where protections are at their zenith because the victim and prosecution are the same and powerful, and crimes outside the paradigm, where restrictions should be less rigid. Recognizing the important difference clears the murk of doubt chilling protective measures for victim-witnesses who have experienced traumatic injury. Based on the crucial distinction, the article defends the constitutionality of protective measures for at-risk victims. The article also explores the promise and perils of providing victims and defendants an opt-out to bypass adversarial adjudication altogether to reduce the harms for both sides.