NCJ Number
137839
Journal
Notre Dame Law Review Volume: 67 Issue: 3 Dated: (1992) Pages: 403-551
Date Published
1992
Length
149 pages
Annotation
This legal analysis focuses on adversarial excesses in the criminal jury trial and places the American criminal trial system in perspective by looking at systems in other countries that use a less adversarial or modified inquisitory model.
Abstract
Negative aspects of the American system stem from an unquestioned "worship" of the adversary ideal. Insistence on extreme forms of the adversary model results in judicial passivity and lawyer domination of the jury trial, emphasis on the contest rather than on the outcome, over-reliance on the lay jury, and restrictive evidentiary and procedural rules. Criminal trials have become so lengthy and complex that they are not provided to most defendants. Instead of offering a fair and expeditious procedure, the American criminal trial system relies on guilty pleas that entirely displace the trial. This system requires that the accused by subjected to threats of increased punishment for going to trial. The few trials that do occur often fall short of the primary goal of achieving a fair and quick resolution of the charges. Lawyer control, highly contentious advocacy, and rigid procedural rules tend to shift a trial's focus from the accused to a context between lawyers. Further, over-reliance on the lay jury and on formal and technical rules of evidence and procedure hinders the prompt and reliable adjudication of guilt. Without abandoning the essential adversary character of the criminal trial, measured steps should be taken to restrain lawyers and encourage judges to exercise greater authority. Judges should control abuses by directing the course of the trial in such areas as case management, jury selection, and witness questioning. Complex rules of evidence should be modified, and trials should be focused on discovering truth. Following the English example of reducing or eliminating peremptory challenges while allowing nonunanimous verdicts would also reduce trial time and allow for more jury trials. While movement toward the continental trial or even the mixed but more adversarial Italian model would face formidable obstacles, ambitious experiments could be conducted in contexts such as misdemeanor trials before Federal magistrates. Overall, reducing adversarial excesses in the criminal trial process can speed up the trial, make it available to more defendants, and focus it more sharply on the accused's guilt or innocence. 618 footnotes