REFLECTIONS ON TWO MODELS - INQUISITORIAL THEMES IN AMERICAN CRIMINAL PROCEDURE

• NCJ Number: 49989
• Journal: Stanford Law Review Volume: 26 Issue: 5 Dated: (MAY 1974) Pages: 1009-1025
• Author(s): A S GOLDSTEIN
• Date Published: 1974
• Length: 17 pages
• Corporate Author: Stanford Law Review
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE IMPACT OF HERBERT PACKERS 'TWO MODELS OF THE CRIMINAL PROCESS' ON AMERICAN CRIMINAL LAW IS DISCUSSED, AND ACCUSATORIAL AND INQUISITORIAL MODELS OF CRIMINAL LAW PROCEDURE ARE DESCRIBED AND COMPARED.

Abstract

HERBERT PACKERS 'TWO MODELS' DEPICTED THE COMPETITION BETWEEN THE IDEALIST AND REALIST POSITIONS IN RELATION TO CRIME CONTROL AND LAW ENFORCEMENT. IT USED TWO THEORETICAL CONSTRUCTS, THE CRIME CONTROL MODEL AND THE DUE PROCESS MODEL, TO SHOW THAT ADOPTION OF ONE OR THE OTHER PERSPECTIVE HAVE CRITICAL IMPLICATIONS FOR EACH PART OF THE CRIMINAL JUSTICE SYSTEM. IT IS SUGGESTED, HOWEVER, THAT PACKERS' TWO MODELS REPRESENTED POSITIONS ON DIFFERENT PLANES AND THAT IT WOULD BE USEFUL TO DEVELOP MODELS WHICH ARE ON THE SAME PLANE SO THAT MORE EXPLICIT PROCEDURAL CHOICES COULD BE MADE. THE INQUISITORIAL MODEL, WITH ITS POTENTIAL SIGNIFICANCE AS A COUNTERWEIGHT TO THE ACCUSATORIAL AND ADVERSARY THEMES, IS CONSIDERED. WHILE AN ACCUSATORIAL SYSTEM IS BASICALLY REACTIVE, THE CHIEF CHARACTERISTIC OF INQUISITORIAL PROCEDURE IS THAT IT IS PROACTIVE. IT IMPOSES AN AFFIRMATIVE OBLIGATION UPON STATE OFFICIALS TO INSURE THAT STATE POLICIES ARE CARRIED OUT. THE INQUISITORIAL TRIAL PLACES LITTLE EMPHASIS ON ORAL PRESENTATION OF EVIDENCE OR CROSS-EXAMINATION, BUT THE MAIN ELEMENT IS PUBLIC RECAPITULATION OF A COMPILED DOSSIER, A PRODUCT OF PRETRIAL INVESTIGATION. THE DOMINANT MODE IS STATE CONTROL OF THE CASE, USUALLY THROUGH THE JUDICIARY. ALTHOUGH AMERICAN CRIMINAL LAW PROCEDURE TENDS TOWARDS AN ACCUSATORIAL SYSTEM, LATENT AND EMERGING INQUISITORIAL ELEMENTS ARE NOTICEABLE AS CRIMINAL LAW IS USED MORE OFTEN AS AN INSTRUMENT OF SOCIAL POLICY. EVIDENCE OF THESE TRENDS ARE DISCUSSED IN WHICH THE JUDGE IS THE DOMINANT FIGURE IN AN INCREASINGLY INQUISITORIAL SYSTEM. IT IS NOT POSSIBLE TO ESTIMATE FUTURE IMPLICATIONS SINCE DETAILED THEORETICAL STATEMENTS OF COMBINED ACCUSATORIAL-INQUISITORIAL SYSTEMS HAVE NOT BEEN DEVELOPED. (DAG)