by Daniel O’Donnell
In Chapter 7 of Rehabilitating Criminal Justice (“Borrowing from European Trials”) author Christopher Slobogin addresses weaknesses of the American adversarial criminal justice system and offers a package of inquisitorial-based reforms as a possible solution.
Though a raft of reform proposals aim to improve the system by tweaking it, Slobogin argues that only more fundamental changes can fully address inaccuracies and unfairness woven into the current American criminal justice system. Numerous studies have indicated that the American adversarial system contributes to wrongful convictions, acquittals, and punishments, due in large part to its reliance on aggressive competition between prosecution and defense. Among other unintended consequences, that competition leads to biased evidence presentation by prosecutors and defense attorneys looking for a “win,” a contest that is usually heavily stacked in the prosecution’s favor, given its greater resources.
While European countries have steadily incorporated Anglo-American influences into their own courts over the past century, this chapter argues that it’s time for the U.S. to reciprocate and adopt key features of the inquisitorial model. Slobogin recommends a hybrid model, highlighting core elements of the inquisitorial system that increase objectivity in fact-finding and reduce the partisan bias of adversarial systems. Namely, Chapter 7 suggests adopting three key principles:
1. Judicial control over evidence:
Judges should play a greater role in selecting and questioning witnesses. In Slobogin’s hybrid model, both parties could still question witnesses, but the judge would be the initial questioner, based on a case file containing all information collected pretrial. This process would produce “more facts and more accurate facts,” reduce the pressure on witnesses to be on a particular party’s “team,” minimize attorney grandstanding, and rebalance the relationship between the state and defendants.
2. Non-adversarial treatment of experts:
Empirical evidence indicates that the adversarial system undermines objectivity among expert witnesses. Most of these dynamics could be remedied by having greater court involvement in the selection of experts and judicial as well as party examination of those experts. In addition, coaching of expert witnesses retained by the parties would be prohibited.
3. Unsworn defendant testimony:
Criminal defendants in Europe almost always testify at their own trials. While the Fifth Amendment grants American defendants the right to refuse to testify, it would not bar unsworn testimony by defendants, who would be encouraged to tell their stories in their own words, especially if impeachment with prior crimes were also barred. In contrast to most American trials, where defendants never testify or do so in a very restricted manner, this reform, Slobogin argues, “could help reduce both wrongful convictions and wrongful acquittals, and perhaps improve perceptions of its fairness as well.”
The author acknowledges the difficulty of importing foreign practices into well-established systems in the U.S., as well as the potential for unintended consequences. Slobogin argues, however, that all three proposals are consistent with U.S. Constitutional law, and each would go a long way towards rectifying inaccuracies in the current system, producing fairer outcomes and fewer inaccuracies.
Christopher Slobogin is the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law. Rehabilitating Criminal Justice, published by Cambridge University Press, is available to order.
