The Unbearable Lightness of Criminal Procedure
University of Wisconsin Law School
November 6, 2013
American Journal of Criminal Law, Forthcoming
Univ. of Wisconsin Legal Studies Research Paper No. 1239
What is revealed about criminal procedure if we compare it to civil procedure? Prevailing scholarship compares American criminal procedure to criminal procedure in Europe. One of the most influential of these transatlantic comparisons is Gerard Lynch’s Our Administrative System of Criminal Justice. Lynch arrives at the insight that the American criminal model of adjudication is not trial-based, but like the European model, administrative in nature. He further concludes that both models strike an adequate balance between the competing goals of efficiency and accuracy. A comparison of American criminal procedure to its common law counterpart, civil procedure, confirms Lynch’s view that criminal the criminal process is administrative in nature. But the comparison also leads one to question Lynch’s assessment that the American criminal model adequately achieves efficiency and accuracy.
Though historically similar, the criminal and civil pretrial process has evolved into two distinct models of administrative adjudication. This article contends that civil procedure reforms identified due process features otherwise locked in trial and modified them for pretrial use. These features of trial include the opportunity to compel and present facts, the application of the rules of evidence, and active judicial intervention to ensure fair play. Though civil litigants do not typically proceed to trial, these reforms permit litigants to compel testimony and demand that legal claims have factual integrity. But where reforms to civil procedure have imported due process into the pretrial process, criminal procedure has remained resistant to such innovation. Instead, during the criminal pretrial period, parties have unequal access to facts. Few rules ensure factual integrity. And the court has little opportunity to review the pretrial record. As a result, separate and unequal procedural models govern the pretrial resolution of disputes within our courtrooms.
Number of Pages in PDF File: 45
Keywords: criminal procedure, civil procedure, comparative law, pretrial, due process
JEL Classification: K14
Date posted: November 8, 2013 ; Last revised: July 26, 2014
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