Adversarial Justice's Casualties: Defending Victim-Witness Protections

47 Pages Posted: 7 Oct 2013 Last revised: 16 May 2014

See all articles by Mary D. Fan

Mary D. Fan

University of Washington School of Law

Date Written: 2014


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.

Keywords: Retraumatization, Violent Crime, Sexual Assault, Protective Measures, Victim-Witnesses, Victims' Rights, Adversarial Revolution, Confrontation, Cross-Examination, Self-Representation, Criminal Law and Procedure, Evidence, Victim Crimes

Suggested Citation

Fan, Mary, Adversarial Justice's Casualties: Defending Victim-Witness Protections (2014). Boston College Law Review, Vol. 55, Forthcoming, University of Washington School of Law Research Paper No. 2013-29, Available at SSRN:

Mary Fan (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98195
United States


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