Academic journal article Notre Dame Law Review

Quasi-Inquisitorialism: Accounting for Deference in Pretrial Criminal Procedure

Academic journal article Notre Dame Law Review

Quasi-Inquisitorialism: Accounting for Deference in Pretrial Criminal Procedure

Article excerpt


Police and prosecutorial activities that take place long before a criminal trial are frequently critical to, even dispositive of, the accuracy and reliability of case disposition. At the same time, the regulatory touch of constitutional criminal procedure in the pretrial realm is insistently light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely reigns.

A prevailing explanation for this state of affairs is rooted in our putative preference for an accusatory rather than inquisitorial system of criminal justice. And the leading solutions on offer frequently urge at least a partial turn away from adversarial obsession to embrace more inquisitorial traditions. The central argument of this Article is that this prevailing account is incomplete, and that the gaps have real world consequences for criminal justice reform. The Article uncovers an additional and consequential strain in the doctrinal narrative, one that depicts the pretrial world as the very inquisitorial, Continental mode that is so roundly rejected in the context of adjudication. This "quasi-inquisitorialism" in turn enables the Court to construct a separate realm of prosecutorial and police bureaucracy, professionalism, and expertise that purportedly fills the gap injudicial oversight. In addition to offering a fuller explanation of the structure of the Court's constitutional criminal procedure doctrine, this account aims for greater leverage for reform. The Article concludes by suggesting that exploiting this quasi-inquisitorial narrative might offer promising inroads--doctrinally, politically, or both--for reformed approaches to investigative oversight, pretrial discovery, and plea bargaining.


A man is arrested for robbery when a trained dog "matches" his scent to scraps of cloth at the crime scene, despite contradictory security video footage. (1) Another is convicted of theft based upon a witness who identifies him as she looks down from a fourth floor apartment into a dark parking lot. (2) An innocent young man pleads guilty to robbery after a sample of his DNA matches blood shed at the scene, only to be exonerated five years later when a laboratory mix-up comes to light and his cousin's DNA is found to be the true match. (3) A woman pleads guilty to fraud charges, not knowing that a key witness in the case had told FBI agents that the defendant's allegedly false statements were true. (4)

All of these cases share three features: they are real; they raise evident reliability and accuracy concerns; and, emanating as they do from evidence gathering and evaluation that occurs prior to trial, they are largely beyond criminal procedure's trial-focused regulatory reach.

The variety of ways in which pretrial activities have the potential to generate error is increasingly well documented. Social science research in particular has made valuable if unsettling contributions in this arena, demonstrating among other things that long-standard investigative techniques in relation to eyewitnesses and confessions raise serious accuracy concerns, that what passes as scientific evidence is sometimes unreliable in its foundations or in the manner in which it is generated, and that a variety of cognitive and motivational biases can lead investigations astray and confound the ability to catch errors down the road. (5) So, too, has recent work in law and social science illuminated the extent to which errors in gathering and assessing evidence prior to trial can "contaminate" a criminal investigation, be falsely corroborated through a variety of procedural missteps and cognitive errors, and remain undetected through systematic accuracy defects in the crucible of trial. …

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