CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 21, 2009

Mosteller on Adversarial and Inquisitorial Systems and the Protection of the Innocent

Mostellerrobertp Robert P. Mosteller  (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness (Symposium on the Future of Adversarial Systems, Chapel Hill, NC, April 6, 2010) on SSRN. Here is the abstract:

The relative advantages and disadvantages of the adversarial system, as practiced in the United States, and modern European inquisitorial systems are often examined. In this Article, I continue that examination in the context of a new emphasis placed on the fair treatment of the innocent defendants, highlighted by the numerous DNA exonerations of defendants, many who faced the death penalty, unjustly convicted by the American adversarial system. I examine two significant failures of the American adversarial system and note a new basis to find merit in the inquisitorial design of the investigative process.

The American adversarial system suffers from significant, widespread and persistent failures of key elements, elements that are critical to accuracy and fairness for defendants. One is the chronic underfunding of the defense of indigents, the vast majority of those accused of serious crimes. Although American defense attorney are charged with defending even the guilty, they are the primary hope for exoneration for the large percentage of innocent defendants who have no compelling evidence, scientific or otherwise, of their actual innocence. The second is the failure to provide adequate discovery to the defense to enable it, lacking resources of independent investigation, to exonerate the innocent, or to provide an effective alternative guarantee of fairness and accuracy through enforceable commands to prosecutors to help protect against unjust convictions. These persistent failures in the American adversarial system mean that the potential advantages of this system are unfulfilled.

The Article also focuses on steps for institutional redesign of the adversarial system to eliminate some of the inherent biasing influences of the system regarding investigative fairness and accuracy. Specifically, bias is inherent because the prosecutor, who typically is given the task of prevailing at trial, also has responsibility for investigating and charging the case. Reforms have been proposed that would separate essentially prosecutorial and adjudicatory functions to reduce bias and to provide independent review for problematic cases.

Finally, I examine insights from social psychology and new empirical research indicating that a prosecutor’s ultimate task of winning a conviction may unconsciously bias the perception and memory of facts learned during the investigation. This research suggests that the inquisitorial system, which entrusts the supervision of investigation to a judicial officer not given the adversarial task of prosecuting the accused, has a theoretical design advantage for fairness and accuracy. The extent to which that theoretical advantage translates into real differences depends on a complex social and institutional context in which the actual system. Nevertheless, the new insights support redesign efforts in all systems to help protect the innocent.

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As a 38 year practitioner and observer I have some other insights. The failure of the courts to give more than lip service to notions of due process and a fair trial are the crux of the problem. This stems from an almost universal distain for the Constitution and for trial court "fair trial" rulings.

Distain for the Constitution arises from different ugly sources. Reconstruction embittered southern and border states against the 13th, 14th and 15th Amendments. Being "unreconstructed" was, and is, a badge of honor in many places. The perverse antipathy to the 14th Amendment and its safeguards for criminal defendants in state courts is widespread. I will relate a story.

In the mid 70's a very good criminal defense attorney appeared in a court known as the "Three C's" in the City of St. Louis. Defense counsel invoked the case of Mapp v. Ohio to the learned Judge ( a judge with a degree from some went in dumb came out dumb law school). "Mr. Shaw, do not recite such nonsense in my court. This is not Ohio!"

Kids go to law school and leave the constitution at the law school door on thier way out. This is a mild paraphrase of Tinker v. Board of Education of Des Moisne, Iowa, wherein Justice Fortas described the school setting as "enclave of totalitarianism". The same can be said of state criminal trial courts. It is not the failure to fund public defenders which results in wrongfull convictions, it is the promotion of unreconstructed bigots and dumb shi__ts to the bench which is the core problem.

Posted by: mpb | Dec 22, 2009 1:36:07 AM

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