The Integration of Victim Lawyers into the Adversarial Criminal Trial

Abstract

Various common law jurisdictions now allow for the representation of the victim in court in order to further integrate the victim into the criminal justice system. In certain common law jurisdictions, victim lawyers may now represent the interests of the victim during various parts of the criminal trial process, including pre-trial hearings and during sentencing. Such reforms have proven controversial and debate abounds as to the extent such lawyers may jeopardise the state’s control of the prosecution process or otherwise jeopardise a defendant’s right to a fair trial. While it is commonly agreed that various parts of the criminal trial process, including applications for bail, may significantly impact upon the victim and their family, the extent to which the victim ought to contribute to decision-making processes or contest substantive principles of law remains uncertain. This paper examines the extent to which victim lawyers may be usefully integrated into common law proceedings through a comparative analysis of the rise of victim lawyers in the United States and England. Possibilities for the integration of victim lawyers in Australia will be considered in the critical context of the ambit of the adversarial trial and the rights of the accused to a fair trial process.