Reinventing the Trial: Evaluating Proposals to Modify the American Criminal Trial In the Wake of the Innocence Revolution

• In Event: Miscarriages of Justice: Action in the Wake of Wrongful Convictions

Abstract

Informed opinion among a critical mass of scholars and jurists has come to accept the finding that wrongful convictions occur with sufficient frequency to constitute a public problem demanding a policy response. A number of policy reforms are occurring in the police, prosecutorial, defense, and forensic science sectors of criminal justice. Aside from a significant post-conviction process to review wrongful conviction claims in North Carolina, the judicial process has been the last bastion holding out against any structural reform efforts. Several scholars, however (R. Michael Risinger, Timothy Bakken, Keith Findley, Samuel Gross), have proposed alternate modes of adjudication that have features of “inquisitorial” procedures. This paper will compare these “investigative-trial” proposals, assess the degree to which they resemble the continental, and especially the German criminal trial, and assess the likelihood that modified trial modes will be adopted, and successful if adopted. Since even inquisitorially structured criminal trials in Europe produce wrongful convictions and now face considerable criticism in their countries, the paper will address the potential downsides of legal transplants within the context of the proposed reforms.

Authors

• Marvin Zalman, Wayne State University

• Ralph Grunewald, University of Wisconsin - Madison