Academic journal article American Journal of Criminal Law

The Unbearable Lightness of Criminal Procedure

Academic journal article American Journal of Criminal Law

The Unbearable Lightness of Criminal Procedure

Article excerpt

I. Introduction 39

II. Lynch's Insights into the American System 41

III. Comparing Criminal Procedure to Civil Procedure 44

A. First Stage: Pre-Complaint Investigation 49

B. Second Stage: Filing the Complaint 53

C. Third Stage: Developing and Testing the Factual Record 57

D. Fourth Stage: Preliminary Hearing Versus Summary Judgment 60

E. Fifth Stage: Civil Settlement Versus the Plea Hearing Ceremony 66

F. The Road to Trial: Motions In Limine 73

G. The Impact of Constitutional Rights on Pretrial Proceedings 75

H. The Relationship Between Empowered Parties and Judicial Engagement 78

IV. A Response to Lynch 80

V. Where to From Here? 83

B. Judicial Engagement 86

VI. Conclusion 86

I. Introduction

What is revealed about criminal procedure if we compare it to civil procedure? The answer may help us assess whether the criminal process is a fair one. Yet, there has been no comprehensive comparison of the two models of adjudication that, together, govern American litigation.1 Instead, the convention is to compare American criminal procedure to European criminal procedure.2 Gerard Lynch, for example, did this in his highly influential piece, Our Administrative System of Criminal Justice ? Lynch observed that the American criminal model of adjudication is not trial-centric, but rather, like the inquisitorial model, administrative in nature.4 His conclusion: the American criminal law system achieves efficient, acceptably accurate outcomes-fair outcomes.5

A comparison of American criminal procedure to its common law sibling, civil procedure, challenges Lynch's conclusion. This Article contends that civil procedure reforms identified due process features that were associated with the trial moment and modified them for use in pretrial proceedings, wherein virtually all litigants resolve their disputes. 6 Importing due process considerations into the pretrial phase permits civil litigants to develop facts, test the credibility of evidence, and access judicial intervention to ensure fair play. Criminal procedure has remained resistant, however, to these pretrial innovations. As a result, litigants resolve the vast majority of criminal disputes in a state of information asymmetry and in the absence of rules that encourage factual transparency. Meanwhile, the criminal law judge plays a passive role, constrained by an outdated notion of neutrality that structurally renders a court vulnerable to being co-opted by the party in control of the factual record: the prosecutor.7

A historical view suggests that these forums should be more similar than different.8 Trial procedures in both forums virtually mirror each other. Any difference reflects the concern that a criminal defendant, up against the awesome power of the State, is warranted additional protection. The awesome power of the State, however, does not materialize at the onset of trial but rather exists before trial. Yet legislative reforms that seek to achieve a balance of power during the pretrial period predominantly con- cem the civil process. The interests of criminal defendants during the pretrial phase have been left to the mercy of on-the-ground pressures: a state monopoly that inherently favors a bureaucratic and non-competitive transaction, a political climate that responds favorably to aggressive prosecution, and the professionalization of law enforcement.9 Lynch concluded that the response to these on-the-ground pressures, which includes a prosecutorcontrolled pretrial process, represents a sort of market-driven innovation.10 But when compared to the nuanced, legislatively wrought reforms of civil procedure, one could equally conclude that criminal law suffers from a lack of innovation. The absurd result is that the class of litigants traditionally warranted robust protection receives the least protection.

Section II explains Lynch's observation that the American criminal model is administrative in nature. …

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