Adversarial Justice's Casualties: Defending Victim-Witness Protection

Abstract

The U.S. Supreme Court and some state courts have constitutionalized an increasingly rigid and broad vision of adversarial adjudication’s requirements. Commentators often celebrate this adversarial revolution as expanding defendants’ rights of confrontation, cross-examination, and self-representation. Yet the adversarial revolution also has created an arsenal of tactics to retraumatize victims of sexual assault and general violent crime. The courts and legislatures are in disarray about what to do to protect vulnerable victim-witnesses. This Article is about adversarial adjudication’s casualties and how to reduce the risk of harm. The Article defends a subset of protective measures that avert further injury to victims while remaining sensitive to defendants’ rights. The Article also challenges the rigid application of adversarial ideals historically forged for adjudicating crimes against the sovereign, such as seditious libel, to crimes of sex and violence involving victims. A distinction must be made between the core category of crimes against the state, where protections are at their zenith because the victim and prosecution are identical and powerful, and crimes outside this paradigm, where restrictions should be less rigid. Recognizing this important difference clears some of the murk and doubt that chills protective measures for victim-witnesses who have experienced traumatic injury.