Conviction pp 102-122 | Cite as

Standing Trial: Prosecutor’s Duties, Defendant’s Rights?

  • Doreen J. McBarnet
Part of the Oxford Socio-Legal Studies book series (OSLS)


The rhetoric of justice is expressed not just in the general clichés surrounding the trial but in the specific roles of prosecutor and defendant that follow from them. Whatever the situation may be behind the scenes, once in court the prosecutor seems to be given all the duties and the defendant all the privileges. The rhetoric poses the trial essentially as a test for the prosecutor. The accused need do nothing—it is up to the prosecutor to prove guilt or fail. The ‘test’ involves five basic tasks for the prosecutor in proving guilt, with attendant rights for the defendant. First, the prosecutor, not the accused, must make the case; the accused can make a case or simply remain silent and the prosecutor may not prove a point by suggesting that silence means guilt. Second, the prosecutor must prove his case without using useful but inadmissible evidence, not, for example, introducing any reference to the defendant’s previous convictions although the defendant can always attack the credibility of a prosecution witness on this basis. Third, the prosecutor must prove guilt, which normally includes intent. Fourth, he must reach a minimum standard of what legally constitutes sufficient evidence for a conviction, and the accused may always close the case by submitting he has not done so. Fifth, he must pass the crucial subjective test of convincing the jury beyond reasonable doubt that his evidence is true. But the powers and privileges of the trial have proved as open as previous stages of the criminal process to qualification by case law and statute, and these tasks are not always quite so demanding—nor the related defendant’s privileges quite so secure—as a general summary suggests. There are ifs and buts attached to every one.


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Copyright information

© Doreen J. McBarnet 1981

Authors and Affiliations

  • Doreen J. McBarnet
    • 1
  1. 1.SSRC Centre for Socio-Legal StudiesWolfson CollegeOxfordUK

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