THE ADVERSARY SYSTEM AND
This chapter addresses two questions: What role is played by the adversary system and by the American adversary trial in generating miscarriages of justice? Are modifications to the American adversary trial and system that can reasonably hope to reduce miscarriages of justice feasible (see Huff, 2002: 15)? Given the great complexity of the adversary trial and the large scope of the adversary system, an attempted answer in a chapter must be partial, so I describe one potential modification suggested by an expert on evidence law (Risinger, 2004) and suggest a single improvement to the adversary system. Any comprehensive review of the adversary system, compared to the inquisitorial system, is beyond the scope of this chapter.1 The terms adversary trial and adversary system are often used interchangeably, but I use the latter term to encompass the entire criminal justice system to the conclusion of adjudication and sentencing. It is easier to separate the two in the United States than it is in the so-called inquisitorial system, given the centrality of the investigation and the dossier in a country like France.
A consensus of sorts exists among those who think about the conviction of factually innocent people in the United States about what “causes” and what must be done to reduce wrongful convictions. The Innocence Commission for Virginia (ICVA, 2005; Gould, 2008), for example, recently identified eight factors found to “underlie” the wrongful convictions that preceded eleven exonerations: mistaken eyewitness identification, suggestive identification procedures, police tunnel vision, antiquated forensic testing, inadequate assistance of defense counsel, failure to disclose exculpatory