allowed for counsel to appear in criminal prosecutions"as in civil cases. By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings. Once lawyers had feet on both ides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony--the foundation of the modern law of evidence This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket. Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and crimin cases-a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government---regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified. and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly Before the Civil War, in fact, criminal prosecution was not even a government specialty The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L REV. 1086, 1 126(1994)(quoting N.Y. CONST (1777)) Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L REV. 497(1990), John H Langbein, The Criminal Trial Before Layers, 45 U CHI. L REV. 263(1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L REv. 1168(1996)[hereinafter Langbein, Historical Foundations of the Law of Evidence 7 See T P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499(1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents See Langbein, Historical Foundations of the law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because"prisoners counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge", he could not, in particular, address the jury. See Gallanis, supra, at 545 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United State 9 AM J LEGAL HIST. 43(1995)5 allowed for counsel to appear in criminal prosecutions “as in civil cases.”5 By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings.6 Once lawyers had feet on both sides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony—the foundation of the modern law of evidence. This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket.7 Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and criminal cases—a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government—regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified, and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly. Before the Civil War, in fact, criminal prosecution was not even a government specialty. The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases.8 This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue 5 Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L. REV. 1086, 1126 (1994) (quoting N.Y. CONST. (1777)). 6 Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990); John H. Langbein, The Criminal Trial Before Lawyers, 45 U. CHI. L. REV. 263 (1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Historical Foundations of the Law of Evidence]. 7 See T.P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499 (1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials. Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents. See Langbein, Historical Foundations of the Law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because “prisoner’s counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge”; he could not, in particular, address the jury. See Gallanis, supra, at 545. 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United States, 39 AM. J. LEGAL HIST. 43 (1995)