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November 17, 2008

Important new paper on modern criminal procedure

Though it apparently has been on SSRN for a little while, I just found my way to this abstract and draft of Professor David Alan Sklansky's new paper titled "Anti-Inquisitorialism."  Here is one part of the abstract that highlights why this piece is my latest must-read:

This article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American jurisprudence. The descriptive part of the article focuses on four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court's endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding, rhetorical invocation of the inquisitorial system in the law of interrogations and confessions.

The evaluative part of the article considers three different reasons the inquisitorial system might be thought a helpful guide to the paths American criminal procedure should not take. The first reason is originalist. It takes inquisitorial processes to be the chief set of evils against which the criminal procedure provisions of the Bill of Rights were intended to provide protection. The second reason is holistic, appealing to the organic integrity of our adversary system. The third reason is instrumental; it assumes that the inquisitorial system simply is worse than ours: worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority.

None of these arguments is fully convincing....

Among other virtues, this article's stating quotation comes from a set of well-known modern pop philosophers.  So, I suppose I should get int he spirit and suggest downloading this article while it is Burnin' Up.

November 17, 2008 at 04:55 PM | Permalink


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Can you tell me if there are guidelines for a confession? Shouldn't there be evidence other than two investigators saying the person who was questioned confessed? There was no signed confession, no video tape, or audio tape. I have been looking for this I cannot find anything remotely close. I am not a student or professor or attorney but I have read your new paper on modern criminal procedure. Thanks for your time.

Posted by: Cindy Alvarez | Jun 5, 2009 8:28:49 PM

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