Reflections on Two Models: Inquisitorial Themes in American Criminal

Procedure [article]
Stanford Law Review
26 Stan. L. Rev. 1009 (May 1974)
Goldstein, Abraham S.;

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 Reflections on Two Models: Inquisitorial
Themes in American Criminal Procedure
Abraham S. Goldstein*
In Two Models of the Criminal Process,' Herbert Packer captured bril-
liantly the tension between substance and procedure in enforcing criminal
law. Using "due process" and "crime control" to describe normative models
of criminal procedure, he explored in meticulous detail the implications of
those models for the several stages from arrest to conviction At each of
the stages, he found an intense competition between the advocates of crime
control, preoccupied with managerial efficiency, and those who would
use due process to set procedural limits On efficiency. In tracing the inter-
action of norm and practice, he opened new and promising lines of
inquiry.
Criminal law scholars owe Packer a great debt which can best be re-
paid by pressing further along the lines he cast. In this essay, I shall make a
preliminary effort to do so. But first I shall place Packer's contribution,
historically and conceptually, in the literature of American criminal law.
I shall then suggest that additional models might be useful and that one
might be drawn from inquisitorial themes in American criminal procedure.

I. IDFAL, REALrrY, AND Tim GEmis oF Two MODELS

Packer's Two Models is a compelling statement of the conflict between

theory and practice which pervades every field but which has nagged most
insistently in American criminal law. Almost from the adoption of the
Constitution, it has been apparent that the provisions dealing with criminal
procedure represented a set of ideals rather than a code of practice. Though
the provisions are remarkably specific, they were written for a society
which had only rudimentary institutions for crime control. As the decades
and centuries passed, dissonance developed between the ideals and a
constantly changing reality. Informal processes arose which did the work
of crime control while occupying a "no-man's land" outside formal theory.
It became commonplace for bail to be manipulated to accomplish preventive

* B.B.A. 1946, C.C.N.Y.; LL.B. 1949, Yale University. Dean, Yale Law School and William
Nelson Cromwell Professor of Law.
I. 113 U. PA. L. REv. i (x964). A revised version is in H. PACKER, THE Lnmrrs op T E CRIMINAL
S m-arxoN 49-246 (968).
2. 113 U. PA. L. REv. at 24-61.
1010 STANFORD LAW REVIEW [VOL. 26: Page 1oo 9

detention, interrogation to be pressed too far, searches to be conducted

illegally, and arrests to be made without probable cause-either for in-
vestigation or harassment. These processes were regarded as part of a
tradition of rough justice in a young country, content to leave to a distant
future the realization of its ideals.
In the 192o's and 193o's, the United States was growing rapidly, mobility
was increasing, and an ever greater number of economic and moral prob-
lems seemed to threaten the social fabric. New and old criminal laws
appeared ineffective and pressure mounted for greater "realism" about
criminal procedure as one way to solve these problems. Being realistic was
equated with tighter control of crime and impatience with legal "impedi-
ments." Judge Learned Hand captured the mood when he wrote:
Our dangers do not lie in too little tenderness to the accused. Our procedure
has been always haunted by the ghost of the innocent man convicted. It is an un-
real dream. What we need to fear is the archaic formalism and the watery senti-
ment that obstructs, delays, and defeats the prosecution of crime.8
Judge Cardozo warned that we must not let "the criminal ... go free
because the constable has blundered," as he ruled that illegally seized
evidence could be used to convict." Repression of crime was very much
in the air, and proposals were made to authorize arrests on less than prob-
able cause, to abandon grand and petit juries, and to authorize judicial
interrogation of the accused.' The underlying assumption was that crime
control could succeed only if we accepted what police and prosecutors told
us were the hard facts of life in law enforcement, and either reduced the
constitutional ideal or did not treat the ideal as a norm to be regularly en-
forced.
During this same period, strong counterpressures were building, trace-
able not only to a stubborn faith in human perfectabiity but also to the
fact that criminal law was being applied to a broader range of activities. The
automobile, prohibition, and "public welfare offenses" brought the public
into contact with law enforcement and created a large class of persons who
were able to identify with "criminals." This idealist position was reflected
in several opinions of the Supreme Court: in Weeks v. United States, which
excluded from evidence in a federal trial material obtained by an illegal
search;' in SilverthorneLumber Co. v. United States,where Justice Holmes
3. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. z923) (denying defendant's motion to
inspect grand jury minutes).
4. People v. DeFore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (x926).
5.See, e.g., Kauper, ludicial Examination of the Accused-A Remedy for the Third Degree, 30
Micir. L. Rav. 1224 (1932); Morse, A Survey of the Grand Jury System (pts. 1-2), 8o Or. L. Rav.
10, 217, 295 (93i); Waite, Public Policy and the Arrest of Felons, 31 MICH. L. REv. 749 (1933);
Warner,The Uniform Arrest Act, 28 VA. L. RFv. 315 (1942).
6. 23 2 U.S. 383 (1914).
May 1974] INQUISITORIAL THEMES IoU

announced what later became known as the "fruit of the poisonous tree"
doctrine;7 and in Justice Brandeis' prescient dissent in Olmstead v. United
States, in which he warned that advancing technology would bring in-
creased eavesdropping and surveillance.8 But it probably drew its strongest
support from the rash of field studies conducted by the Wickersham Com-
mission and by others in police stations, prosecutors' offices, and throughout
the criminal justice system.
These field studies tended to favor the idealist position, but they pro-
vided fuel for both idealists and realists. To the former, they confirmed
fears and showed how much would have to be done to bring legal insti-
tutions up to the constitutional standard. To the latter, they proved
constitutional law was out of tune with those who knew best how to deal
with crime. The conflict between the two positions accounted for the
terms of the subsequent debates over extending to the states the exclu-
sionary rules regarding search and seizure, interrogation, the rights of
the indigent to appointed counsel, the role of counsel before trial, and
the place of discovery in criminal cases.
Each group sometimes claimed the position of the other, depending
upon the audience it was addressing. The realists believed that efficient
crime control would best preserve personal and social discipline, tradi-
tional values, and the American character. The idealists felt they were
dealing realistically with crime and criminals-that better character and
an improved social order would follow from a, consummately fair proce-
dure. The reasons offered by the competing groups made plain, of course,
that neither was more idealistic or realistic than the other; each assigned
different weights to the values protected by various procedural provisions.
Nevertheless, a division remained which justifies use of the idealist-realist
distinction. Idealists were willing to sacrifice efficiency in the criminal pro-
cess in order to prevent abuse of official power and found in the Constitution
a codification of their position; realists wanted to repress crime with as
few procedural restrictions as possible.
Attitudes formed during World War II reinforced the idealist position.
As the American public learned about totalitarian police practices in
Hitler's Germany and Stalin's Russia, it developed a heightened sensitivity
to police excesses at home. In addition, as ever greater numbers felt the
impact of criminal law-through price controls and rationing, and, more
7. 251 U.S. 385, 392 (192o); see Nardone v. United States, 308 U.S. 338, 341 (x939).
8. 277 U.S. 438, 473 (1928).
9. See, e.g., CLEVELAND FOUNDATION, CRIMINAL JUSTICE IN CLEVELAND (R. Pound & F. Frank-
furter eds. 1922); R. MOLEY, OUR CRIMINAL COURTS (1930); U.S. NAT'L COMM'N ON LAW OBSER-
VANCE AND ENFoRCEmENr, REPORTS, Nos. 1-6 (1971); Morse, supra note 5. See generally G.
MUELLER, CRI E, LAw AND THE SCHOLARS 95-O8 (Cambridge Studies in Criminology, Vol. XXVI,
x969).
 STANFORD LAW REVIEW [VOL. 26: Page ioo9

recently, through the civil rights movement, war protests, and drug use
-new and especially intense constituencies swelled the ranks.
The Warren Court responded to the new pressures by affirming that the
federal judiciary intended to raise practice to the constitutional ideal. In a
series of decisions dealing with searches,1" use of the body, 1 interrogation,'
counsel," and publicity, " the court set largely national standards for state
criminal procedure. The arguments of the realists were rejected, except in
a few areas such as "stop and frisk," where the Court acquiesced in the as-
sertion that police sometimes needed authority to detain and to search, even
when they had no cause to arrest'
Though some saw the work of the Warren Court as finally realizing the
constitutional promise, realist forces were only temporarily halted. Having
lost in the judicial arena, they spread their message in political campaigns
through appeals for "law and order." These political efforts proved success-
ful, and the tide has once again turned. In the decisions of the Burger Court
and the actions of other officials, we are witnessing a resurgence of the realist
position, particularly in the area of police practices, bail, and plea bar-
gaining'
The competition between the two positions has been so persistent and
so influential that it demanded explanation in terms transcending particular
cases. Yet until Packer's Two Models, few such explanations were available,
probably because of our commitment to a common law tradition. That tra-
dition is antitheoretical and open-ended, built up case by case as appellate
courts respond to particular fact situations and remedial settings. There
were, however, several currents pointing toward a broader theory. These
came principally from sociological jurisprudence and legal realism and
from the codification movement. They prepared the way for Packer, even
as they were affecting the legal developments already described.
Sociological jurisprudence and legal realism emerged in the ig2o's as
a reaction against the nearly exclusive concerns of lawyers with appellate
opinions and with doctrinal analysis based mostly on superficial history.
And criminal law, as "people's law," was among the first to feel the effects. 7
io. See Mapp v. Ohio, 367 U.S. 643 (i96i); Berger v. New York, 388 U.S. 4r (1967).
It. See Schmerber v. California, 384 U.S. 757 (x966); United States v. Wade, 388 U.S. 218
(1967).
12. See Miranda v. Arizona, 384 U.S. 436 (1966); Malloy v. Hogan, 378 U.S. r (1964).
13. See Gideon v. Wainwright, 372 U.S. 335 (1963).
14. See Sheppard v. Maxwell, 384 U.S. 333 (x966).
15. See Terry v. Ohio, 392 U.S. 1 (1968).
I6. On plea bargaining, see Santobello v. New York, 404 U.S. 257 (97r); Brady v. United
States, 397 U.S. 742 (970). On police practices, see United States v. Robinson, 42 U.S.L.W. 4055
(U.S. Dec. ii, 1973). On bail, see the District of Columbia statute providing for preventive detention,
D.C. CODE ANN. §§ 23-132X to -1332 (x973); Mitchell, Bail Reform and the Constitutionality of
PretrialDetention, 55 VA. L. Rsv. 1223 (1969).
17. See sources cited note 9 supra.
May 1974] INQUISITORIAL THEMES 101 3

Legal scholarship rapidly shifted to include the full range of judicial insti-
tutions, trial and appellate, and administrative processes in which decisions
were made about invoking and declaring criminal law. To most observers,
the content of criminal law and the elements of criminal liability seemed
less important, in practical terms, than the manner in which the law was
administered: how police and prosecutors exercise their discretion to
charge; the extent to which the bail decision may be administered in dis-
regard of legal norms; the remarkable degree to which the guilty plea domi-
nates the system and is itself often dominated by "plea bargaining" between
the parties; the attitudes, perceptions, and value systems of the decision-
makers and of the persons affected by them.
The approach was, in the first instance, descriptive but as the factual
outlines were filled in and criminal law was studied in the context of its
administration, bridges had to be built between the newly acquired facts
and a body of doctrine which rested on an older and narrower empirical
base. Legal doctrine had to be evaluated in terms of the relation between
the decisionmakers and the functions they were expected to perform: Do
law enforcement officials correctly select for prosecution persons who have
committed crimes? Are those persons charged with the offenses which
properly describe their conduct? Are they tried in a manner which assures
that only the guilty are convicted? Are sentences imposed which bear a
sensible relation to the objectives set by the legislature? Such questions led
to inquiries into how the several parts of the system affect each other: Do
they work smoothly as part of an interconnected whole? Are there internal
dissonances as the separate parts serve conflicting objectives and the par-
ticipants reflect different values? Are legal doctrines being distorted by in-
stitutional failures or personal misunderstanding or corruption?
Inevitably, lawyers and judges began to view the legal system as com-
plex and dynamic, but understandably so and therefore susceptible to stra,
tegic thinking. More than in the past, legal questions were approached with
an eye to choosing institutions and doctrines which would provide the most
effective levers for accomplishing change. The elaboration of exclusionary
rules, which began as declarations of what the Constitution or the cases
required, became an instrument for reshaping the administration of crimi-
nal justice. Illegally obtained evidence was kept from the trial in the hope
that exclusion would persuade police and prosecutors that they must obey
procedural as well as substantive law. Rights to counsel were enlarged, not
only to enhance truth-finding but also to assure that the defendant had full
opportunity to monitor the procedural norms-whether they related to his
culpability or to that of police or prosecutor or court. In short, many legal
 STANFORD LAW REVIEW [VOL. 26: Page I009

rules were refashioned so that they would serve strategic objectives of a

symbolic or deterrent sort.
Meanwhile, the codification movement was gaining a foothold in
criminal law. The American Law Institute's Model Penal Code was the
most significant development but there were others, including the Uniform
Arrest Act and the increasing adoption of codes of criminal procedure by
courts and legislatures. The codifiers brought to the United States the con-
cern for formal legal theory which had long been so important in Europe.
To draft a code properly, it was necessary to search out fundamental as-
sumptions and to analyze carefully the relation between such assumptions
and the operative, technical provisions of the codes. Here too, sociological
and realist jurisprudence left its mark. American draftsmen made codifica-
tion an exercise in blending substantive law with procedure, administration,
and resource allocation. A pragmatic mood prevailed which insisted upon
codes which would be mindful of the limits of law-demanding no more
in the way of reform than could be implemented while going as far as
those limits permitted.
Against this background, legal scholars began, in the i95o's and i96o's,
to discuss criminal procedure in explicitly systemic terms. They did so as
part of a scholarly enterprise, but one which now offered promise that it
would be reflected in comprehensive code reforms or in Supreme Court
opinions. To cite some examples: Foote wrote about bail administration
and its relation to the stated premises of pretrial release.'8 Remington and
his colleagues surveyed the administration of criminal justice in selected
urban and rural areas from arrest to conviction and release. 0 Allen demon-
strated the interplay between substance and procedure in his pieces on the
rehabilitative ideal and on juvenile courts.2" Wechsler drew upon the theo-
retical framework set out in his earlier casebooks and articles2 ' as he
drafted the Model Penal Code. Joseph Goldstein used the existence of
police discretion to pose searching questions about the objectives of criminal
I8. Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, iO8 U. PA. L. Rv.
832 (ig6o). Foote also fostered student work in this area. See Note, A Study of the Administration of
Bailin New York City, io6 U. PA. L. REv. 693 (1958).
19. AMERICAN BAR FOUNDATION, Tan ADMINISTRATION OF CRIMINAL JUSTICE IN THE UNITED
STATES (1955) and the volumes that followed under the general editorship of Frank Remington:
W. LAFAvE, ARREST (x965); D. NEWMAN, CONVICTION (x966); L. TIFFA Yr, D. McINTYRE, JR. & D.
ROTENBERG, DETECTION OF CRIME (1967); AMERICAN BAR FOUNDATION, LAW ENFORCEMENT IN A
METROPOLIS (D. McIntyre, Jr. ed. 1967); F. MILLER, PROSECrrION (x969).
2o. F. ALLEN, Tam BORDERLAND OF CRIMINAL JUsTICE (1964); Allen, Criminal Justice, Legal
Values and the Rehabilitative Ideal, 50 J. CRIM. L.C. & P.S. 226 (1959).
2r. Wechsler, The Challenge of a Model Penal Code, 6,5 vAR.
L. REv. 1097 (,952). Wechsler's
relevant earlier work includes H.M. HART & H. WECHSLER, TH FDER.L COURTS AND THE FEDERAL
SYSTEM (953); J. MICHAEL & H. WECHSLER, CRIMINAL LAw AND ITS ADMINISTRATION (940);
Wechsler & Michael, A Rationale of the Law of Homicide (pts. 1-2), 37 COLUM. L. REV. 701, 1261
(1937).
May 1974] INQUISITORIAL THEMES

law 2 I tried to demonstrate how the "balance of advantage" should

be struck between state and accused, taking into account the interrelation
of pretrial and trial processes and doctrines!'
Packer's Two Models of the Criminal Process drew upon these prede-
cessors2" but transcended them. His essay supplied a cross-cutting view of
the constitutional ideal as it came up against the problem of crime and
the institutions and people through whom the ideal was expressed or re-
sisted. Using two theoretical constructs, the crime control model and the
due process model, he showed that taking one or the other perspective had
critical implications for each part of the system-in the development of
legal doctrines, in the ways in which participants play their roles, in the
allocation of resources, and in the pressure for institutional change.
II. AccusATORL. AND INQUIsITORIAL MODELS
Two Models was a major contribution to the literature of criminal pro-
cedure. Yet it would be no service to the line of inquiry Packer pioneered
to treat his models too reverently. I shall try to demonstrate that his two
models may represent positions on different planes and that it would be
useful to develop models which are on the same plane and which may lend
themselves to more explicit procedural choices. I shall deal particularly with
the inquisitorial model, which Packer did not consider,"5 and with its
potential significance as a counterweight to the accusatorial and adversary
themes which dominate American criminal procedure. I shall develop the
model in tentative fashion, as an indication of lines to be explored.
When Packer wrote of the crime control model, he was presenting a
sustained statement of the realist position. Defining procedure as con-
cerned only with managerial efficiency, it is less a procedural model than a
general tendency to resist legal restraints in the pursuit of highly desired
ends. That tendency minimizes the importance of the means used: murder,
rape, robbery, and theft are to be detected and punished quickly and with
finality. Procedural norms-whether relevant to fact-finding or preventing
abuse of power-are of distinctly secondary importance.
22. J. Goldstein, Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions
in the Administration of Jutice, 69 YaLE L.J. 543 (i96o).
23. A. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69
YAr= LJ.1149 (ig 6o).
24. In a bibliographical note, Packer referred to the work of Amsterdam, Barrett, Bator, Kadish,
Kamisar, Reitz, L. Schwartz, M. Schwartz, and Westin as legal scholars in addition to those cited in
notes x8-23 supra whose work on "the procedural revolution" he had found to be "consistently use-
ful." H. PAcKER, supra note I, at 37r.
25. Packer did recognize, however, that some inquisitorial themes exist in the American system
of criminal law. Packer, supra note i, at 22. As an example, he cites the role of the judge in the
guilty plea. Id. at n.25. Moreover, Packer's recognition that "the sanction of nullity," as the major
source of judicial intervention in the criminal process, is "a potential source of weakness" indicates
that he saw a role for additional inquisitorial devices. See id. at 62.
ioI6 STANFORD LAW REVIEW [VOL 26: Page ioo9

The polar opposite of crime control, which expresses the principle of effi-
ciency, is the principle of legality. That principle is often referred to by
European writers and divides into subordinate rules which affect both sub-
stance and procedure: the degree of specificity with which crime must be
defined, whether advance notice must be given, the nature and severity of
sanctions, the extent to which informal procedures may be used, how per-
sons are arrested and tried. The due process model articulated by Packer is
a very particular application of the legality principle. It is heavily infected
with American values about judges and juries, police and prosecutors-in-
corporating much of the idealist position described earlier!' Its major
premises are adversary and accusatorial but it sometimes assumes other
forms, as, for example, when administrative processes are used to satisfy
the "due process" of the moment'
The principal difficulty with Packer's models is that crime control is
not a procedural model but an end towards which all models are directed
and by which they may be measured. Due process, on the other hand, is
one set of producers for achieving the end and may be more or less effi-
cient than others, more or less consistent with values other than efficiency.
If we are to understand in detail the consequences of using one system
rather than another to enforce criminal law, it may be useful to return to
an older mode of analysis which is more explicitly procedural and which
offers the possibility of choosing among systems rather than between a sys-
tem and a tendency. I shall begin by considering the premises underlying
the two best-known procedural expressions of the principle of legality, the
accusatorial and the inquisitorial systems. I shall then analyze the extent to
which American procedure is a mixed system and some of the implications
of crossing theoretical lines.
American criminal procedure is usually regarded as "accusatorial" and
"adversary," with the two terms being treated as virtual equivalents. On
close examination, however, it is apparent that the words have quite differ-
ent meanings. "Adversary" refers to a method of resolving disputes and
takes its contours from the contested trial. Counsel for state and accused
play an aggressive role in presenting and examining witnesses and in shap-
ing legal issues. The judge is a relatively neutral participant who assures that
rules of evidence are satisfied and that the jury is properly instructed on
26. Compare the "family" model discussed in Grifliths, Ideology in Criminal Procedure, 79
YALE L.U. 359 (1970). For comments on the relation among Griffiths, Llewellyn, and Socialist thought,
see Damaska, Evidentiary Barriersto Conviction and Two Models of Criminal Procedure:A Compara-
tive Study, i2 U. PA. L. REv. 506, 571-73 (i973). Professor Damaska also has some perceptive ob-
servations on Packer's models. Id. at 574-77-
27. See, e.g., Morrissey v. Brewer, 408 U.S. 471 (972) (parole); Sostre v. McGinnis, 442 F.2d
X78 (2d Cir. 1971), cert. denied, 404 U.S. 1049 (1972) (prison); cf. In re Gault, 387 U.S. I (z966)
(juveniles).
May i974] INQUISITORIAL THEMES 1o1 7

the law. This adversary trial is so integral a part of our tradition that
we often treat it as the exclusive approach to procedure. When appellate
opinions refer to "judge' or "magistrate" or "counsel," it is widely as-
sumed they will bring with them the attitudes, workways, and doctrines
of adversary criminal procedure.
An adversary method, however, is merely one way of finding facts and
implementing norms. Though we have a good deal of faith that it is the
best method, at least for the contested criminal trial, there is nothing in-
herent in it which assures the kind of criminal procedure we take for
granted. An adversary process does not, without more, protect the accused
from interrogation or search or use of his body for evidentiary purposes.
Nor does it necessarily include the judge-jury relationship as we have de-
fined it, or the role of prosecutor and grand and petit jury, or the right to
release before trial. For those, we must turn to a normative tradition par-
tially incorporated into constitutional law.
This tradition is reflected in the word "accusatorial," which is a classic
procedural model that encompasses not only an adversary trial procedure
but also other fundamental premises. An accusatorial system assumes a so-
cial equilibrium which is not lightly to be disturbed, and assigns great
social value to keeping the state out of disputes, especially when stigma
and sanction may follow. As a result, the person who charges another
with crime cannot rely on his assertion alone to shift to the accused the
obligation of proving his innocence. The accuser must, in the first instance,
present reasonably persuasive evidence of guilt. It is in this sense that the
presumption of innocence is at the heart of an accusatorial system. Until
certain procedures and proofs are satisfied, the accused is to be treated
by the legal system as if he is innocent and need lend no aid to those who
would convict him.
An accusatorial system is basically reactive, reflecting its origins in a
setting in which enforcement of criminal laws was largely confined to
courts. Police and prosecutors had hardly developed; the initiative was left
to the complaining party to invoke criminal sanctions by gathering his
proofs and presenting them at trial. Before trial, the state played a relatively
passive role, doing only what was minimally required to enable the com-
plainant to present his case. If arrests were sought, then "probable cause"
had to be established to the satisfaction of a magistrate, but the magistrate
would not investigate on his own. If indictments or informations were
sought, the grand jury or prosecutor would approach the matter as a
screening agency rather than as an investigator. In such a system, it
seemed entirely proper that pretrial release on bail should be common
and that it should be administered by private bondsmen. In sum, the
 STANFORD LAW REVIEW [VOL. 26: Page TO0 9

accusatorial model closely resembles the system of private prosecution

which long dominated English criminal justice.28 It is also reminiscent
of a civil case, where the court leaves matters largely to the parties.
American criminal procedure has become much less accusatorial in
theory and less adversary in form than is commonly supposed. It has de-
veloped strong "inquisitorial" elements which are rarely noted because
Americans tend to equate inquisitorial systems with coercive interrogation,
unbridled search, and unduly efficient crime control. Such excesses, how-
ever, are no more integral to the procedural system which enforces criminal
law in most of the world than American excesses are attributable to accu-
satorial theory.
The chief characteristic of inquisitorial procedure is that it is proactive:
it imposes an affirmative obligation upon state officials to insure that state
policies, both substantive and procedural, are carried out. The judiciary is
usually charged with this obligation, but there are important variations. In
the Soviet Union, for example, the Public Prosecutor fills much of the in-
quisitorial role." For present purposes I shall draw principally on French
criminal procedure, which is most typical of a pure inquisitorial model and
which makes the investigating magistrate (juge d'instruction) and pre-
siding judge the central figures."0
Comparativists generally assume that inquisitorial systems are primarily
concerned with enforcing criminal laws and are only incidentally con-
cerned with the manner in which it is done. They point especially to the
use of the accused as the primary source of evidence, both during the in-
vestigation and at trial. He is ordinarily called as the first witness and is
questioned closely by the presiding judge about the facts of his life and
his knowledge of the crime. Few rules of evidence inhibit the judge and the
state has no explicit burden of proof or persuasion. " The judge dominates
the proceeding and often appears to move relentlessly toward a predeter-
mined result of conviction. Indicative of the general attitude is the per-
vasive use of preventive detention before trial for persons charged with
major crimes. "
The inquisitorial trial places little emphasis on oral presentation of evi-
28. P. HOWARD, CRIMINAL JUSTICE IN ENGLAND 8-x9, 46-53 (1931).
29. See H. BERMAN & J. SPINDLER, SovIET CRIMINAL LAw AND PROCEDURE 134, 135, X53, 163-
65 (1972) (arts. 25, 27, 70, 112-24).
30. See generally P. HowARD, supra note 28, at 381-4o9; Anton, L'Jnstrudion Criminelle, 9
Aa. J. Comrp. L. 441 (ig6o); Damaska, supra note 26; Ploscowe, The Development of Present-Day
CriminalProceduresin Europe and America, 48 HAv. L. REV. 433 (1935); Vouin, The Role of the
Prosecutorin French Criminal Trials, 18 Amt. J. Comp. L. 483 (970).
31. The state bears the burden of proof in Soviet law. See H. BERMAN & J. SPINDLER, supra note
29, at 57-62.
32. See, e.g., Anton, supra note 30, at 448. See generally Symposium-Conditional Release
PendingTial, xo8 U. PA. L. REv. 290 (ig6o).
May 1974] INQUISITORIAL THEMES IOI9

dence or on cross-examination by counsel. Instead, the trial is mainly a pub-

lic recapitulation of written materials included in a dossier compiled earlier
by an investigating magistrate. That dossier, however, is the product of a
pretrial process much more formal than ours. Inquisitorial systems ex-
plicitly define the relation of the investigating magistrate and presiding
judge to the investigation and the charge. The applicable legal norms are
usually stated in a code, and an investigating magistrate takes over from
the moment an arrest is made or a crime is charged. He seeks all logically
probative evidence and is bound by almost no restrictions on what he may
consider. He is, however, subject to a great many rules on how he must
record statements, authenticate documents, and work with experts. He
may delegate to the police a good deal of authority to detain or question or
search, but records must be kept of each delegation and there must be
periodic reviews or renewals.
Throughout, the judiciary as an institution is the central actor and is
not expected to subordinate its enforcement of the legal norms to the wishes
of counsel, police agencies, or the accused. Little or no discretion is author-
ized in either prosecutor or judge. A judicial officer, the investigating magis-
trate, is expected to prepare the dossier in a form which will assure that,
if he sends the case forward, conviction will follow. Other judicial officers
may review the file before trial to determine the propriety of the charge and
the sufficiency of the evidence. And guilty pleas are nonexistent because the
state may not abandon its obligation to guarantee that the law on the books
is enforced and that the facts support the charge.
These portraits of accusatorial and inquisitorial systems are, of course,
idealized. European criminal procedures are no more purely inquisitorial
than ours are purely accusatorial. Europeans too have accusatorial elements
and mixed systems; they may tolerate more discretion than their literature
concedes and may, in many instances, be moving toward a greater role for
counsel and more explicit protection for the accused."3 Nevertheless, there
are central tendencies.
For inquisitorial systems, the dominant mode is state control of the
case, usually through the judiciary, rather than party control. The judge,
whether as investigating magistrate or at trial, regards himself as more than
an umpire. He is expected to take the initiative in amassing evidence and
in assuring that the merits of guilt and penalty are correctly assessed. And
the judiciary is accustomed to participating in and directing investigative
and administrative processes which, in our system, are left largely to police
or to counsel.
33. See, e.g., Jescheck, The Discretionary Powers of the Prosecuting Attorney in West Germany,
I8 AM. J. Coamp. L. 508 (1970).
1020 STANFORD LAW REVIEW [Vol. ",6:Page ioo9

Similarly, our central tendency has been toward an accusatorial system,

but it would blink law and reality to ignore the strong inquisitorial ele-
ments in our procedure. From earliest times, grand juries and justices of
the peace have served investigative functions, even though they are judicial
agencies. In the i6th century, under the statutes of Philip and Mary, the
magistrates at preliminary hearings became examining magistrates and
conceived of themselves as having an independent obligation to investigate
the facts, not simply to appraise the case presented to them by complainant
and accused. These "inquisitorial" elements are ordinarily said to trace to
Norman and Spanish influences, but they were nevertheless absorbed into
English law and became part of our own, coexisting with what we like to
regard as an older and purer accusatorial tradition."' Though our magis-
trates are no longer investigating officials, their contemporary analogues
are the one-man grand jury and the expanded role of special and regular
grand juries. They take their place alongside other inquisitorial devices
which have played an important part in the reality of American law: the
use of the accused for interrogation and search; the practice of persuading
him, directly or indirectly, to waive his rights and immunities by pleading
guilty; and the common use in civil cases of broad equity powers to super-
vise a wide variety of processes.
Despite the central tendencies, the usual contrast between European and
American procedure is too superficial. It compares inquisitorial theory
which encompasses the entire process from investigation to conviction with
accusatorial and adversary theory which have generally addressed only the
contested trial and have until recently ignored the guilty plea and pretrial
investigation. When we compare events from initial investigation to ad-
judication and sentencing, the two systems tend to converge. A few illus-
trations should suffice. The French practice of delegation to the police
by the juge d'instructionmay make their police as central to investigation
as ours and shows the juge to be more like our reactive magistrate than
theory suggests. There may be more discretion exercised and more rights
waived on the Continent than we are told. For example, the absence of
guilty pleas may be insignificant in a system which relies heavily on the
confession of the accused. And European trials may be no more informal
than ours if we count in the comparative base our convictions based on
guilty pleas. From the American vantage point, the prosecutor's file-when
he draws an information or a grand jury returns an indictment-may
well resemble the European dossier. It too contains statements of witnesses,

34. See E. P rrTimmER, ADMINISTRATION OF CRIMINAL LAW 88-92 (1953).

May 1974] INQUISITORIAL THEMES

documentary evidence, and reports of experts. Where the American prose-

cutor, as is often the case, exercises a broad discretion and makes final
decisions whether to prosecute or not, his factfinding may be as free from
evidentiary rules and as much concerned with the accused, his personality,
and his prospects as his French judicial counterpart. Finally, when a guilty
plea is entered, the American trial judge may be working with a prosecu-
tor's file and a probation report which are surprisingly like the "dossier."
The inquisitorial and accusatorial systems are different procedures for
reconciling the conflict between legality and efficiency, but neither system
is necessarily more or less efficient in controlling crime or in serving the
interests which Packer included under due process. Requiring the juge
d'instruction, for example, to enforce rules like those announced in Mi-
randa and Wade, and supervising him closely, would surely introduce
into an inquisitorial system factors which would alter dramatically its bal-
ance between crime control and due process even as it would alter the un-
derlying inquisitorial model. Ultimately, the operation of any model and of
the procedure reflecting it will depend upon the interaction of many factors:
the normative content of the standards to be applied in making decisions,
how the participants are perceived and trained, the controls introduced at
strategic points, and the resources assigned to implement policies and
controls.
III. LATENT AND EMERGING INQUIsITORIAL THEMES
It was probably inevitable that American criminal procedure would be-
come less accusatorial as government became more complex and criminal
law was used more often as an instrument of social policy. Many of the new
regulatory offenses could not be enforced if exclusive reliance were placed,
in accordance with accusatorial theory, upon those who were wronged.
In some instances, this is because victims lack the resources or self-assurance
to litigate or because there are no victims in the usual sense. Such "victim-
less" crimes include gambling, narcotics, and sex offenses, where the crim-
inal law has been used to control conduct engaged in consensually. To
enforce this new body of regulatory criminal laws and to cope with the
increase in the older crimes against property and person as America became
more industrial and urban, police forces grew and prosecuting attorneys
expanded their activities. The criminal sanction became only one among a
range of devices-criminal, administrative, injunctive, and monetary-for
controlling conduct. In this new setting, difficult choices had to be made
as to which among them would best serve public policy, and law enforce-
ment agencies could no longer be reactive. Inquisitorial themes grew
1022 STANFORD LAW REVIEW [Vol. 26: Page oo9

stronger and were supported by a firmer theoretical foundation for judicial

control than is commonly realized.
Despite the tendency to describe the American judge as passive or neu-
tral, he is plainly more than a "mere umpire." Rules regarding the admis-
sibility and sufficiency of evidence, the creation of presumptions, and in-
structions on law are, on their face, judicial controls designed to enforce the
state interest in rational fact-finding. They restrict control of the case by the
parties and restrain the jury's impulses towards irrationality and nullifica-
tion of law. Moreover, many American judges comment on the evidence,
require that witnesses be summoned even when counsel do not call them,
appoint experts, suggest defenses to counsel, use the doctrines of "plain
error" and "effective assistance of counsel" to intrude upon counsel's con-
trol of the case, and apply "harmless error" to excuse counsel's inadequacies.
These interventions may, of course, be viewed as efforts by the judiciary
to assure that the adversary system is working properly and that accusa-
torial premises are being followed. Such an interpretation, however, is
belied by the expansion of exclusionary rules, through which American
courts try to deter illegal conduct by police and prosecutor. In decisions re-
garding searches, line-ups, eavesdropping, interrogation, and entrapment,
and in the requirement that the prosecutor make exculpatory evidence avail-
able to the accused, the American judge has asserted detailed control of in-
vestigation as well as adjudication. 5 But he has done so against a back-
ground of assumptions that he is merely declaring law in an adversary trial
controlled by the parties. In such a trial, the judge can act only through the
parties and their counsel or through the symbolic force of his decision. He
has no procurators or magistrates or administrative subordinates to see to
it that public policies are carried out in detail.
The guilty plea illustrates very clearly the awkward transition from ac-
cusatorial to inquisitorial themes. At first glance, the prevalence of the
guilty plea seems to mock the claim that our system is accusatorial and ad-
versary: more than 90 percent of criminal cases are never tried; they are
concluded by pleas of guilty in a relatively informal process. On closer ex-
amination, however, the guilty plea and plea bargaining are logical ex-
tensions of the accusatorial premise. Relying on informal negotiations be-
tween prosecutor and defense counsel, they allow the parties to deter-
mine how the public interest in suppression of crime should be served. Yet
almost from the beginning of American law, the courts were reluctant to
accept plea bargaining as legitimate. They held that the prosecutor had
no authority to "compromise criminal cases," because such compromises
35. See cases cited notes xo-i2 supra; Brady v. Maryland, 373 U.S. 83 (x963); Sherman v.
United States, 356 U.S. 369 (958).
Mafy 1974] INQUISITORIAL THEMES

violated the legal principles formally established by legislatures and courts.

At the same time, they acquiesced in ritual recitations by defendants that
their pleas were made "voluntarily." The bargain was regarded as illegal
but it was tolerated and even encouraged because it served so many useful
purposes. For defendants, it often mitigated the severity of the criminal
code. For prosecutors and judges, it provided a quick and final disposition.
But it was not always clear that the interest of the public in crime control
was being properly served. 6
In recent years, the courts have brought the guilty plea out of the closet."r
Judges have intervened to assure that the defendant has not been coerced or
overborne and that the public interest has not been too casually bargained
away by prosecutors. Inquiries are now made into the factual basis for the
plea, the extent to which the defendant understands his legal position and
his defenses, and the adequacy of the advice he has received from his coun-
sel. Plea bargaining has been accepted as legitimate, albeit subject to
judicial regulation. And such regulation has led to greater judicial involve-
ment with the facts underlying guilty pleas and with the appropriateness of
the charges brought and the sentences proposed. In short, American judges
have assumed supervisory roles strikingly similar to those of "inquisitorial"
judges, while lacking the machinery to implement the roles. 8
There are other illustrations of inquisitorial forces at work in American
procedure, and of confusions of role, as these forces meet attitudes and in-
stitutions which are unaccustomed to close judicial supervision. For ex-
ample, the police may ask a judge to issue an arrest, search, or eavesdrop-
ping warrant. The prosecutor may also ask for such warrants, or he may
ask a court to grant immunity to a witness appearing before a grand jury.
Our system accepts these processes because it is assumed they are in fact
supervised by judges. Again and again, the Supreme Court has attached
extraordinary importance to the role of the "neutral and impartial magis-
trate" in seeing to it that police investigative practices accord with the Con-
stitution. 9 Yet because these proceedings are ex parte, with only the state
represented, there is no defense counsel to question the state's presentation
36. See generally A2mmcAuN BAt ASSOCIATION, STANDARDS RELATING TO PLEAS OF GUILTY (1968);
PREsmENT's COMM'N ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:
TkE COUmTS 9-13 (1967); Comment, Official Inducements to Plead Guilty: Suggested Morals for a
Marketplace, 32 U. CHl. L. REv. 167 (1964); Note, Guilty Plea Bargaining: Compromises by Prose-
cutorsto Secure Guilty Pleas, I12 U. PA.L. REv. 865 (1964).
37. See Santobello v. New York, 404 U.S. 257 (197r); Brady v. United States, 397 U.S. 742
(1970 ) ; PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, supra note 36.
38. A Presidential commission has recently proposed that the guilty plea be abolished entirely
because, inter alia,it leaves too much of the public interest to the parties. NATIONAL ADVISORy Comms'N
ON CRI INAL JUSTICE STANDARDS AND GoALs, The CoUtRs 46-49 (1973).
39. See, e.g., Katz v. United States, 389 U.S. 347, 356-57 (1967); Aguilar v. Texas, 378 U.S.
xo8 (1964); Wong Sun v. United States, 371 U.S. 471, 481-82 (r963); Johnson v. United States,
333 U.S. 10, 13-14 (1948); Agnello v. United States, 269 U.S. 20, 33 (1925).
102 4 STANFORD LAW REVIEW [VOL. 26: Page IOo
9

or to share in protecting the public interest. The judge must serve those func-
tions himself, particularly since there is a risk that the prosecutor will fall
into an adversary role and present matters in a partisan fashion. He must
not only question closely the legal sufficiency of the affidavits presented; he
must also probe the credibility of the factual assertions and demand access to
other materials and witnesses. Unfortunately, however, practice does not
conform to theory. It is a commonplace conclusion that judges "rubber
stamp" warrant applications and barely supervise the process."
The reason usually advanced to explain judicial passivity when receiving
the guilty plea or when passing on warrants is that judges are too busy to
do more. But an adequate explanation probably has deeper roots in funda-
mental postulates of the accusatorial model. The American judge assumes
that he is to react to matters presented to him and that if initiatives are to be
taken, counsel will take them. Experienced trial lawyers who become judges
slip quickly into the expectations and work habits associated with the judi-
cial role. Even when only one side is represented, as with warrants, or when
counsel are more collegial than adversary, as with guilty pleas, the Amer-
ican judge tends in practice to be reactive. He has come to rely on the parties
and their counsel to define and develop issues. And there is little in our
experience to guide him in a more active role; he is being asked, while
judge, to engage in a species of administrative supervision which is ordi-
narily left to the executive branch because of our deep commitment to the
separation of powers.
Perhaps the most dramatic evidence of this phenomenon is the confusion
surrounding Judge Sirica and the grand jury investigating Watergate. The
grand jury is an arm of the court, convened and instructed by a judge and
assisted by a prosecutor. Yet when a judge is drawn by extraordinary cir-
cumstances into working closely with the grand jury or when a grand jury
genuinely seeks to make the prosecution its instrument, many of us are
uncomfortable and confused about the seeming shift in roles. We experience
these feelings because we are held captive by models built on the adversary
trial. Yet it makes little sense to carry the idea of a reactive judge in an ad-
versary trial to the quite different context of the judge who must supervise
administrative processes. Adversary processes and accusatorial premises may
be inapplicable to a system which has changed its shape and which increas-
ingly casts the judge in a proactive role. We might better be served by prac-
tices drawn from inquisitorial systems, in which judges are routinely as-
signed tasks which are administrative and supervisory.
40. See, e.g., AMERICAN BAR FOUNDATION, LAw ENFORCEMENT IN A METROPOLIS, supra note ig,
at 34-36; W. LAFAVE, supra note ig, at 502-03; Rebell, The Undisclosed Informant and the Fourth
Amendment: A Search for Meaningful Standards, 8i YALE LJ. 703, 71o n.41 (1972).
May 1974] INQUISITORIAL THEMES 102 5

A judge considering an application for a warrant or a guilty plea must

conceive of himself as having an affirmative obligation to assure that legal
norms are satisfied. At present, he is inhibited in doing so because we have
not clearly defined his role in carrying out the norms, particularly how he
should investigate the allegations and affidavits presented to him, and be-
cause we have not equipped him with a sufficiently large staff to carry out
administrative duties. As a result, he is drawn toward mechanisms of avoid-
ance-leaving administrative tasks to the police or prosecutors or defining
his obligations narrowly so that they can be executed with very limited re-
sources, as by relying entirely on affidavits. Similarly, those who would have
the judge enforce "due process" norms press him to rely on counsel and on
adversary methods because the judge is regarded as inadequate and be-
cause other methods have not been identified. A similar dialectic is at work
in the bail decision, sentencing, and supervision of the sentence.

IV. CONCLUSION

In suggesting that there may be a middle ground, explicitly combining

inquisitorial and accusatorial elements, I have discussed a model borrowed
from inquisitorial systems in which judges are the dominant figures. Other
models could be added. One would give the public prosecutor a dominant,
almost judicial role, and calls to mind the frequency with which American
prosecutors are told by the courts that they are not mere adversaries but have
an obligation to assure that justice is done. Another would assign a greater
role in law enforcement to administrative agencies, with their blend of
executive, legislative, and judicial functions. Until we have detailed theo-
retical statements of such models, we shall have little basis for charting the
implications for the criminal justice system of any proposed change. Deci-
sions will continue to be made in fragmentary fashion, with little recogni-
tion that our procedural system is now a mixed one, and that the creative
task for the future will be to discover which institutions and doctrines fit
best the segment under consideration and what compensatory corrections
will have to be made in other parts to maintain a sensible balance.