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71 Pages Posted: 15 Oct 2008 Last revised: 31 Mar 2015

David Alan Sklansky

Stanford University


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. For much the 1990s this way of thinking seemed to be waning, at least in majority opinions of the Supreme Court, but it has recently enjoyed a striking revival - figuring conspicuously, for example, in the Supreme Court's dramatic reinterpretation of the Confrontation Clause, in the Court's far-reaching decisions about the role of juries in mandatory sentencing schemes, and in the Court's strict application of procedural default rules.

In each of these areas, anti-inquisitorialism has led the Court to some counter intuitive conclusions. Those conclusions would be easier to accept if there were some standard account of what makes inquisitorial process so objectionable, but there is not. Nor is there even agreement about what makes a procedural system inquisitorial.

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 jurisprudence. The descriptive part of the article focuses on 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, rhetorical invocation of the inquisitorial system in the law of interrogations and confessions.

The evaluative part of the article 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 Bill of Rights were intended to provide protection. The second reason is holistic, appealing 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. The originalist argument is vulnerable to the standard objections to originalism as a mode of constitutional interpretation, plus two more specific problems. The first is that the evidence does not support the view that the criminal procedure provisions of the Bill of Rights were originally intended, or originally understood, chiefly as a means of protecting against the inquisitorial system. The second is that the Fourth, Fifth and Sixth Amendments apply to state prosecutions only by virtue of their incorporation in the Fourteenth Amendment, and there is even less reason to think that that part of the Constitution was intended, or originally understood, as a means of ensuring that American criminal procedure stayed distinct from civil-law process. 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 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.

Keywords: criminal procedure, inquisitorial, adversarial, confrontation, due process, procedural default, jury trial, sentencing, interrogation, confessions

Suggested Citation

Sklansky, David Alan, Anti-Inquisitorialism. 122 Harv. L. Rev. 1634 (2009); UC Berkeley Public Law Research Paper No. 1283274. Available at SSRN:

David Alan Sklansky (Contact Author)

Stanford University ( email )

Stanford, CA 94305
United States

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