Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness
North Carolina Journal of International Law & Commercial Regulation, Vol. 36, No. 2, 2011
45 Pages Posted: 14 Dec 2009 Last revised: 18 Jun 2012
Date Written: December 14, 2009
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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