96 Pages Posted: 21 Mar 2005
With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but regulates investigation with a light hand. In theory, because adjudication checks investigation, weak investigative regulation should not endanger accuracy. Yet adjudication - which occurs through plea bargaining much more often than trials - is an inadequate guarantor of accuracy for many reasons, one of which is the systemic weakening of the adversarial process due to legislative under-funding of indigent defense. However, recent innovations improving fact-finding in criminal adjudication - most prominently DNA analysis - have made accuracy a higher priority by making errors more difficult to conceal. As a result, we now see early signs of a new model for criminal justice, a system that depends less on adversarial process and more on practices akin to those found in administrative and inquisitorial settings.
This shift holds much promise. The accuracy-enhancing function of defense attorneys - scrutinizing the reliability of state evidence and presenting evidence the state ignored - can, in significant ways, be supplanted by other mechanisms, many of which are more politically sustainable than increased funding for indigent defense. New investigation-stage practices have begun to take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement ineffectual defense counsel in aiding accuracy, and these practices have some advantages over adversarial lawyering. As a result, adjudication is becoming a relatively less important procedural stage for truth-finding as investigation becomes more so; adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial.
Suggested Citation: Suggested Citation
Brown, Darryl K., The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication. California Law Review, Forthcoming; Washington & Lee Legal Studies Paper No. 05-06. Available at SSRN: https://ssrn.com/abstract=689161 or http://dx.doi.org/10.2139/ssrn.689161