Rethinking Adversariness in Nonjury Criminal Trials

This Article argues that when the jury is withdrawn from the common law criminal trial, the accused suffers an adversarial deficit. This deficit occurs because many of the procedural devices built into the trial process -- particularly those designed to provide the defendant with a meaningful opportunity to contest the case against him and to ensure that any determination of guilt is based solely on the evidence adduced in the courtroom -- are predicated on the existence of a decision-making body that comes cold to the contest, devoid of extraneous knowledge concerning the facts of the case or the relevant principles of law. The authors contend that a number of important changes must be made to procedures in nonjury cases to correct for this deficit and thus to make certain that basic adversary principles are preserved in the nonjury setting