Against the View of the Criminal Trial as “Calling Defendants to Account”

Abstract

Abstract The conventional view is that the purpose of a criminal trial is to determine whether the defendant committed a crime and, if so, what the appropriate legal response should be. This view has been criticized for failing to justify adequately the procedural rights of factually guilty defendants. In response, Antony Duff, along with other scholars, has proposed reconceptualizing the criminal trial as a “calling to account,” a civic practice in which the state summons the defendant to answer a charge of public wrongdoing. On this account, procedural rights are grounded in the defendant’s status as a responsible participant in a practice of public accountability. This article offers a critical examination of the “calling to account” model proposed by Duff and argues that it does not provide a convincing explanation of the foundation of the criminal trial. First, the model does not align well with established legal institutions such as plea procedures and trials in absentia. Second, it generates normative tension with the right against self-incrimination by redescribing silence as a departure from the ideal role of the citizen-defendant. Third, it misidentifies the structural priority within criminal adjudication: the procedural architecture of the trial is organized around the authoritative determination of guilt. The article concludes that, although Duff’s “calling to account” approach attempts to provide an alternative normative framework for criminal trials, it fails to displace a properly understood truth-oriented account of the criminal trial.