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ANTI-INQUISITORIALISM
by David Alan Sklansky [ Full Text
] |
| 122 Harv. L.
Rev. 1634 (2009) |
| A broad and
enduring theme of American jurisprudence treats the Continental, inquisitorial system of
criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has
long been thought a core commitment of our legal heritage. This Article examines the
various roles that anti-inquisitorialism has played and continues to play in shaping our
criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a
guiding principle of American law. The Article begins by describing four particularly
striking examples of anti-inquisitorialism at work: the Supreme Court’s recent
reinterpretation of the Confrontation Clause; the Court’s invalidation of mandatory
sentencing schemes that rely on facts found by the trial judge; the Court’s
endorsement of procedural default rules rejected by the International Court of Justice;
and the longstanding invocation of the inquisitorial system in the law of interrogations
and confessions. The Article then considers three different reasons the inquisitorial
system might be thought a helpful guide to the paths American criminal procedure should
not take. The first reason is originalist; it takes inquisitorial processes to be the
chief set of evils against which the criminal procedure provisions of the Constitution
were intended to provide protection. The second reason is holistic; it appeals to the
organic integrity of our adversary system. The third reason is instrumental; it assumes
that the inquisitorial system simply is worse than ours — worse at uncovering the
truth, worse at protecting individual rights, or worse at preventing abuses of government
authority. None of these arguments is fully convincing. There is little evidence that the
criminal procedure provisions of the original Bill of Rights were originally intended, or
understood, to serve as protections against the inquisitorial system. There is even less
reason to think the Fourteenth Amendment had that aim. Regarding the holistic argument,
the chief problems are, first, that it is harder than might be expected to identify the
core elements of the inquisitorial system, and second, that there is little reason to
think that our system of criminal procedure actually has the fragile kind of organic
integrity that the argument assumes. Assessing the functionalist argument is more
complicated. Elements of the adversary system may in fact have instrumental worth,
particularly in protecting against authoritarian abuses. But that is a reason to value
those elements of the adversary system, and to value them insofar as they serve other,
more fundamental aspirations. It is not an argument for treating the inquisitorial system
as epitomizing, across the board, what our system of criminal justice should strain to
avoid. [
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