The mutable defendant: from penitent to rights-bearing and beyond
Gimson, RM
Date: 28 October 2019
Journal
Legal Studies
Publisher
Cambridge University Press (CUP) / Society of Legal Scholars
Publisher DOI
Abstract
Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded from
arbitrary state punishment by due process. The paucity of academic commentary on the role
of the criminal defendant suggests that there is a common assumption that the role is static.
However, the rights-bearing defendant is a relatively new ...
Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded from
arbitrary state punishment by due process. The paucity of academic commentary on the role
of the criminal defendant suggests that there is a common assumption that the role is static.
However, the rights-bearing defendant is a relatively new concept. Through a legal history
analysis, this article demonstrates that the defendant’s role can mutate in response to pressures
placed on the criminal trial. Broadly, there have been three conceptualisations of the
defendant; the penitent Anglo-Norman defendant, the advocate defendant of the jury trial, and
the rights-bearing adversarial defendant. Importantly, the shift from one conceptualisation to
another has occurred gradually and often without commentary or conscious effort to instigate
change. There are many contemporary pressures that could be impacting on the rights-bearing
defendant. The concept of a mutable defendant provides a new theory through which to analyse
these pressures. This article considers the introduction of adverse inferences regarding the
right to silence and disclosure, and the rise of ‘digilantism’. These new pressures, it is
suggested, help to facilitate a rhetoric of deservingness that goes against the rights-bearing
defendant and raises the risk its role could once again be mutating.
Law School
Faculty of Humanities, Arts and Social Sciences
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