The standard versions of the adversary system's development show that as more lawyers participated in English criminal trials in eighteenth century England criminal procedure became increasingly adversary. Those versions largely ignore American history which shows that the colonies and early America did not simply adopt the English adversary system but moved to an adversary system in advance of England. This article discusses data and developments indicating America's early adoption of an adversary system, including the American guarantee of a right of counsel, the routine presence of counsel in criminal cases in the colonies and the new United States, the American innovation of a public prosecutor, the American development of themodern rationale for the hearsay rule, and examples of early American adversary trials.
The rise of the American adversary system in advance of England's has constitutional significance. Key components of the adversary system are constitutionalized in the Sixth Amendment. If those constitutional provisions are to be interpreted by the Framers' original intentions, and if America moved to an adversarysystem in advance of England, then the American history must be analyzed to understand those Sixth Amendment rights. The Supreme Court has not been doing this analysis.
Widener Law Review , Vol. 14, Issue 2 (2009), pp. 323-356