Shifting Boundaries: Recent Changes to Criminal Justice Policy

Abstract

The modern criminal trial as an institution of justice is in a state of significant transition. Various influences have come to bear upon the scope, function and form of the criminal trial. Many of these influences, such as terrorism, victim rights, and the need for expediency, remain controversial as to the extent to which such influences ought to be entertained as influencing the scope of the adversarial trial. However, modern criminal justice policy is operating in accordance with a number of competing discourses that challenge the adversarial model in various ways. As the previous chapter has indicated, the criminal trial has never taken a particular form or function to the exclusion of social change. As an institution, it has always been open to change. What the present debate over the scope of the criminal trial shows, moreover, is how the criminal trial continues to transform to meet a number of competing needs. This is not to say that the modification of the trial ought to go unchallenged. We should protect the extent to which ill thought out, reactionist, or popular demand may influence the criminal trial. This chapter will demonstrate, however, that various contemporary influences now seek to dislocate the criminal trial from those characteristics that identify it as an institution of adversarial justice exclusively. This, arguably, is consistent with the continued modification of the criminal trial over time. It shows that the criminal trial continues to be shaped through an array of discourses that render the criminal trial a transgressive institution of social justice. This further challenges the assumption that the criminal trial ought to be constituted through a set of normative assumptions that prescribe its form.