Harvard Law Review Harvard Law Review Harvard Law Review

Criminal Law


A broad and enduring theme of American jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court’s recent reinterpretation of the Confrontation Clause; the Court’s invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court’s endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding invocation of the inquisitorial system in the law of interrogations and confessions. The Article then considers three different reasons the inquisitorial system might be thought a helpful guide to the paths American criminal procedure should not take. The first reason is originalist; it takes inquisitorial processes to be the chief set of evils against which the criminal procedure provisions of the Constitution were intended to provide protection. The second reason is holistic; it appeals to the organic integrity of our adversary system. The third reason is instrumental; it assumes that the inquisitorial system simply is worse than ours – worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority. None of these arguments is fully convincing. There is little evidence that the criminal procedure provisions of the original Bill of Rights were originally intended, or understood, to serve as protections against the inquisitorial system. There is even less reason to think the Fourteenth Amendment had that aim. Regarding the holistic argument, the chief problems are, first, that it is harder than might be expected to identify the core elements of the inquisitorial system, and second, that there is little reason to think that our system of criminal procedure actually has the fragile kind of organic integrity that the argument assumes. Assessing the functionalist argument is more complicated. Elements of the adversary system may in fact have instrumental worth, particularly in protecting against authoritarian abuses. But that is a reason to value those elements of the adversary system, and to value them insofar as they serve other, more fundamental aspirations. It is not an argument for treating the inquisitorial system as epitomizing, across the board, what our system of criminal justice should strain to avoid.