The Right to Counsel: Criminal Prosecution in 19th Century London

Abstract

We exploit a data set of criminal trials in 19th century London to evaluate the impact of an accused's right to counsel on convictions. While lower-level crimes had an established history of professional representation prior to 1836, individuals accused of committing a felony did not, despite the prosecution being conducted by professional attorneys. The Prisoners' Counsel Act of 1836 remedied this and first introduced the right to counsel in common law systems. Using a difference-in-difference estimation strategy we identify the causal effect of defense counsel. We find the surprising result that the professionalization of the courtroom led to an increase in the conviction rate. We argue that this effect was a consequence of jurors feeling that the trial grew fairer with the introduction of a right to counsel and a movement towards evaluation of cases on their merits rather than through a lens of equity. We go further and employ a topic modeling approach to the text of the transcripts to provide suggestive evidence on how the trials changed when defense counsel was fully introduced, documenting a movement towards increased usage of precise and detailed language when discussing details of alleged offenses.

Keywords: defense counsel, Latent Dirichlet Allocation, Old Bailey, prosecution, right to counsel, text analysis