Friday, November 15, 2013
To assess the adequacy of criminal pretrial procedure, this paper compares its development to that of its American common law sibling, civil procedure. This comparison reveals that the criminal model has abandoned common law aspirations. As Lawrence Friedman observed, "trial is the ideological core of the common law." It is in trial where our notions of due process are situated"that parties have parity (equal powers to call witnesses) and that rules of evidence ensure that competing narratives have factual integrity. But as trial has become an ever more rare event, parties risk losing access to these trial aspirations. Legislative reforms to civil procedure, however, have imported features of the trial into the pretrial phase. Civil procedure puts subpoena power in the hands of litigants before trial, integrates rules of evidence to improve the factual integrity of the pretrial record, and invites courts to review pretrial facts and claims. Reforms to criminal procedure, however, have remained indifferent to these trial aspirations.This article breaks from the scholarship that typically assesses the adequacy of the American criminal model by comparing it to its European inquisitorial counterpart. In doing so, scholars typically conclude that the American criminal model provides an adequate, even innovative, forum to resolve disputes; this article contends, however, that this comparative analysis is flawed. Rather than look across an ocean, we should look to the civil courtroom across the hall, as the civil model provides a better comparative metric to assess the adequacy of the criminal model's function.