7 - Borrowing from European Trials

Summary

Chapter 7 contends that, as implemented in the United States, adversarialism is a significant cause of many of the systemic flaws recounted in Chapter 6. It is thus also a significant cause of wrongful convictions, unjust sentences, and errant acquittals. Empirical evidence recounted in this chapter suggests that these errors could be significantly minimized if we modified the American practice of allowing the prosecution and the defense to dominate evidence production by adopting the hybrid inquisitorial regime found in some European countries. This chapter proposes the integration of three inquisitorial mechanisms into American trial procedure – judicial control over the adjudication process, nonadversarial treatment of experts, and required unsworn testimony by the defendant – and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they could measurably enhance the accuracy of American criminal trials.