Quasi-inquisitorialism: accounting for deference in pretrial criminal procedure.

Author:Laurin, Jennifer E.
Position:Introduction through II. The Supreme Court's Quasi-Inquisitorialism A. Police in the Quasi-Inquistorial Pretrial Sphere 1. Search and Seizure Sets the Stage a. The Regulatory Police Bureaucracy, p. 783-815


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. (6) Of course, we might be less concerned about the prevalence of pretrial error given that some ninety-six percent of defendants sim- ply admit guilt. (7) And yet guilty pleas themselves introduce nontrivial accuracy concerns given the breadth of criminal law, the range and severity of sentences, and prosecutors' nearly unfettered discretion to bargain with charges and punishment, and extract finality-preserving (and potentially accuracy-thwarting) waivers of rights to discovery, post-conviction review, and even the guarantee of effective assistance of counsel. (8)

This state of affairs exists in large part thanks to the structure of American criminal procedure doctrine, which relies almost entirely on trial-based procedures to guarantee accuracy and approaches the pretrial realm with a comparatively light regulatory touch. Yes, the Fourth Amendment imposes some pretrial gatekeeping through warrant doctrine and the requirements of probable cause, but these purposely "flexible" strictures are protective of significant police discretion, and the Court has repeatedly resisted the suggestion that heightened reliability concerns (such as, for example, reliance on anonymous informants) should alter such an approach. (9) Notwithstanding efforts by the Warren Court to shine the light of the Fifth, Sixth, and Fourteenth Amendments in the dark corners of police precincts, criminal procedure doctrine protects against little other than deliberate law enforcement overreach in the course of an investigation--again, even in the face of demonstrable risks of error in evidence gathering (as, for example, with unreliable eyewitnesses or apparently schizophrenic confessors). (10) Similarly immune from accuracy-focused scrutiny are the assessment, charging, and even dispositional decisions made by prosecutors: the constitution demands little if any evidentiary disclosure, imposes no conditions on the terms of bar- gains, and seemingly permits waiver of any right conceivably characterized as knowing and voluntary. (11)

The magnitude of our criminal justice system's accuracy problem is widely debated, but the notion that it is nontrivial and that greater attention to pretrial activities is an important part of the solution is widely accepted. (12) Moreover, there is wide agreement among critics about the general character (if not the details) of attention that is required. Investigative practices should be more systematized and regulated to reflect what is known about best practices especially in relation to eyewitnesses, interrogations, informants, and forensic science; defendants should have greater access to discovery and the state's investigative apparatus prior to trial, and especially in connection with evaluating plea offers; and plea bargaining, including the terms of offers and the rights that can and cannot be on the bargaining table, should be scrutinized to ensure that prosecutors are not de facto final adjudicators. (13)

But it is equally well understood that courts, the Supreme Court chief among them, have by and large remained on the sidelines in these debates. Again and again, the Supreme Court has, by wide majorities, rejected invitations to refashion constitutional criminal procedure to feature reliability guarantees beyond those provided by fair trials. Two terms ago in Florida v. Harris, a unanimous Court rejected the Florida Supreme Court's effort to scrutinize the reliability of drug-sniffing dogs, insisting in the face of evidence of that technology's questionable accuracy that demanding and scientifically guided tests of reliability were inconsistent with the "flexible" conception of probable cause contemplated by the Fourth Amendment. (14) In the previous Term, eight Justices in Perry v. New Hampshire rejected the notion that due process forbid admission of unreliable eyewitness identifications in the absence of police misconduct, in an opinion that read almost as if the last three decades of research about the risks of eyewitness identification (research that pervaded the parties' briefs) had not transpired. (15) The Court--frequently a significant majority of it--is clear-eyed in declining to adapt our constitutional regulatory regime to the lessons of the last decades. (16)

Of course, judicially fashioned, constitutionally rooted criminal procedure is far from the only or most meaningful doctrinal space that might attend to pretrial reliability concerns. Yet extrajudicial arenas for oversight have to date yielded less change than critics might have hoped. Greater oversight of investigators and prosecutors through subconstitutional judicial doctrine such as state evidence law or rules of criminal procedure, as well as organizational reform in this arena, are by and large exceptions to a rule of continuing down the standard (Court-modeled) path. (17) In other words, despite the changed, more accuracy-focused backdrop for criminal justice reform conversations, the basic structure of criminal oversight continues largely to track the structure of the Court's criminal procedure jurisprudence.

What explains both the presumption and endurance of pretrial deference? Legal realist accounts aside, there is a prevailing understanding of the Court's criminal procedure jurisprudence that is frequently offered by the Court, and held up by commentators, as justifying or at least explaining doctrinal inattention to pretrial reliability concerns: the notion that "ours is an accusatorial and not an inquisitorial system." (18) As the story goes, more or less constitutionalized (American) values of individual autonomy and limited state insinuation prevail over (foreign) technocratic and bureaucratic idealization of substantive accuracy; judges are umpires rather than invested participants in development of the case, and parties to litigation independently develop and present oral narratives subject to cross examination and evaluated by neutral factfinders; and procedural...

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