Note: This is the first post of a three-part series on inquisitorial procedure and its lessons for the U.S. criminal justice system.
Part I: The Investigative File
A major weakness of the U.S. adversarial criminal system is that often no one but the prosecutor and law enforcement has access to the evidence collected before conviction. Drawing on inquisitorial systems, a way to provide oversight is to permit a plea bargain only when the prosecution has turned over all evidence that it has, to the defense and to the judge.
Mention of the inquisitorial system is apt to provoke an almost instinctive aversion among American judges and lawyers. If the adversarial system worked well, this attitude might be justified. But as it is, Americans can hardly afford to reject other systems without taking a closer look. Our civil procedure is one of the most expensive in the world, and not celebrated for accuracy. Our criminal procedure does manage to avoid expense, but only at the cost of avoiding almost all adjudication. In the federal system, over 97% of felony convictions are the result of a plea bargain. Through plea bargains, we send persons to prison with virtually no evaluation of evidence beyond that of the prosecutor.
Inquisitorial systems manage more evaluation of evidence than we do, often at reasonable expense. In this series of posts, I hope to help rehabilitate inquisitorial procedure in the minds of Americans. Inquisitorial systems have spread around the globe, to governments in Europe, Latin America, and Asia. Many of these have features that could help us to reform our system.
A note on terminology: the word “inquisitorial” itself can be controversial. Many civil law systems have introduced adversarial elements into their procedure. But the overall effect is quite different from adversarial procedure in common law countries. Some scholars call the result “nonadversarial” procedure.
In this series, I suggest three possible reforms for criminal procedure in the United States, based on inquisitorial practices. 1. An open-file policy for investigations, making evidence collected by the government fully available to the defense and the judge; 2. Allowing an adverse inference to be drawn from the defendant’s silence during interrogation and trial, if defense counsel is present; and 3. Improving the accuracy of abbreviated proceedings (plea bargains) by requiring a judge to thoroughly review the investigative file, ask open-ended questions of the accused, and issue an opinion in writing.
This post takes up the first proposal: the investigative file.
At the heart of inquisitorial procedure is an official inquiry. (For a comparison of inquisitorial procedure with common law adversarial procedure, see Renée Lettow Lerner, The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d’assises, 2001 Ill. L. Rev. 791.) A government official is tasked with investigating both inculpatory and exculpatory evidence. For serious crimes, this official may be either an investigating judge or a prosecutor. It’s important to keep in mind that in civil law systems, prosecutors are trained as judges and are part of the body of magistrates. The job of a judge in an inquisitorial system is explicitly to find the truth—not, as in a common law system, to resolve a case according to procedural rules. The difference is powerful.
Inquisitorial systems often have careful procedures for verifying and recording evidence, particularly witness statements and statements of the accused. In classic inquisitorial procedure, there are no parallel investigations. The defense, the prosecutor in those systems that use investigating judges, and the victim may nominate proofs—that is, suggest that certain witnesses be interviewed, physical evidence found, and tests run. Typically, the investigator must respond to these requests in writing, and in some systems, a denial is appealable.
All evidence that the investigator collects is put into an investigative file. This collection of information is deeply important. Readers of continental police procedural novels, such as Georges Simenon’s Maigret series, are familiar with the dossier, or file.
In current inquisitorial procedure, the investigator gives the completed investigative file to the presiding judge of the first instance. The investigative function is split from the adjudicative. The idea is to add another check on the investigator’s work. The file is also made fully available to the prosecutor, if the prosecutor was not the investigator; to the victim, who is usually represented by counsel in serious cases; and, crucially, to defense counsel.
Although the American adversarial system may seem vastly different from the inquisitorial system, there are pockets of adoption. This system is not wholly foreign to the U.S. profession.
American sentencing, in particular, often shares the basic features of inquisitorial procedure. This is especially true in the federal system. The federal sentencing regime includes a version of the investigative file: the pre-sentencing report. A government official, usually a probation officer, is charged with collecting information for this report. Once complete, the report is sent to the judge. The judge reviews the report before the sentencing hearing. This preparation allows the judge to be active at the hearing. The judge is able to ask informed questions and to direct the proceedings, rather than being a passive referee. And of course the pre-sentencing report is crucial for the judge to make an informed decision.
Our own law school, together with many other academic institutions, uses inquisitorial procedure to resolve allegations of academic dishonesty. The Academic Integrity Code of George Washington University Law School, sets out a classic example of modern inquisitorial procedure. An official investigator produces a thorough written report accompanied by records of all evidence found. This report and file are made fully available to the decision-makers, and to the accused if the accused wants a hearing. Many law professors praise the adversarial, common law system—but will not use it for a matter near to their own interests. Adversarial procedure is too truth-defeating and cumbersome. Adversarial procedure for thee, but not for me.
In current practice, the U.S. adversarial criminal system has a major weakness: Before conviction, often no one but the prosecutor and law enforcement has access to the evidence collected. This may seem puzzling at first, as it’s not the formal legal rule. But as with so much else in the U.S. criminal justice system, the formal legal rule diverges widely from practice.
American criminal discovery rules themselves vary widely. At least two states, North Carolina and California, have an open-file policy, in which theoretically the defense has full access to information gathered. Apart from those, some state prosecutors and U.S. Attorneys’ offices follow an open-file policy. But many provide only the bare minimum disclosures required by the rules of criminal procedure and the constitutional duty described in Brady v. Maryland, 373 U.S. 83 (1963), and related cases to disclose material exculpatory evidence—as determined by the prosecutor.
But the U.S. system often avoids any disclosure of evidence. In many jurisdictions, plea bargaining is occurring before discovery. A prosecutor will offer a better deal if the defendant agrees before disclosure of the evidence. As the case moves toward trial, the deal becomes progressively worse: worse if the prosecutor must indict (in those systems that require indictment), again worse if the defendant insists on discovery, and worst of all just before trial. This ratcheting up, or progressively increasing the pressure to plead guilty, has become so routine and accepted that it hardly excites comment anymore. At this point in the federal system, many plea bargains occur even before indictment, much less discovery.
In theory, the trial judge is supposed to provide some check on the prosecutor by making sure that there is a “factual basis” for the plea agreement. Fed. R. Crim. Pro. 11(b)(3). But usually plea colloquies are perfunctory. The judge is rubber-stamping the deal—a deal made in conditions of asymmetric information. There is very little check on the prosecutor, very little evaluation of the evidence by anyone else.
A way to provide some oversight is to permit a plea bargain only when the prosecution has turned over all evidence that it has, to the defense and to the judge.
In the United States, a long-standing debate simmers about the merits of broad criminal discovery. One of the best descriptions of the reasons against broad discovery comes from an opinion by New Jersey Chief Justice Arthur Vanderbilt in State v. Tune, 13 N.J. 203, 210-11, 98 A.2d 881, 884 (1953): a defendant who is aware of the whole case against him may procure perjured testimony to set up a false defense; a defendant may bribe or intimidate witnesses to perjure themselves or not show up; and witnesses who know that the defendant will find out who they are will be reluctant to give information during investigation. Those dangers are present in some cases, but not all. One solution is for the default to be that all information is disclosed, unless the prosecutor makes a showing in camera of a danger from disclosure to the defense.
That so many systems have managed an open-file policy indicates that it can indeed be workable. And the benefits are great, helping to prevent a defendant from being railroaded into a conviction without adequate evidence.
The next post in this series will address another major problem with the U.S. criminal justice system: The defendant is eliminated as a source of information, except for police interrogation without counsel present.
Author Biography: Renée Lettow Lerner is Donald Phillip Rothschild Research Professor of Law at George Washington University Law School. Professor Lerner works in the fields of U.S. and English legal history, civil and criminal procedure, and comparative law. She advises judges, lawyers, and government officials from the United States and countries in Europe, Latin America, and Asia about the differences between adversarial and nonadversarial legal systems. She writes extensively about the history of American juries. She has a book forthcoming with Oxford University Press in the Very Short Introduction Series entitled The Jury. She is the author, with John Langbein and Bruce Smith, of the book History of the Common Law: The Development of Anglo-American Legal Institutions (2009). Professor Lerner received an A.B. summa cum laude in history from Princeton University. She was a Rhodes Scholar at Oxford University, where she studied English legal history. At Yale Law School, she was Articles Editor of the Yale Law Journal. She served as a law clerk to Justice Anthony M. Kennedy of the U.S. Supreme Court and to Judge Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit. From 2003 to 2005, she served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice.