"Toward Pretrial Criminal Adjudication"

The title of this post is the title of this new paper authored by Eric Fish and Chesa Boudin now available via SSRN. Here is its abstract:

The American criminal justice system faces a crisis of adjudication.  Courts rarely decide facts, hear arguments, or hold adversary hearings.  Trials are an endangered species.  Convictions nearly always happen when defendants declare themselves guilty pursuant to plea bargain agreements.  This crisis of adjudication undermines the system's legitimacy.  The rule of law has little purchase in a regime governed by guilty pleas.  Legal rights are not asserted. The government's evidence is not tested.  The values of neutrality, transparency, and legality are sacrificed as power moves from the courtroom to the prosecutor's office.  And case outcomes are dictated by punishment leverage, not by in-court presentation of evidence.  This has created a persistently high risk of wrongful convictions.  It has also eroded the rule of law and facilitated the growth of incarceration.

To address this crisis, academics and reformers have mostly focused on reviving the criminal jury trial.  This Article proposes instead to reframe criminal procedure in a way that emphasizes robust pretrial adjudication.  There are a variety of hearings and other legal proceedings that can happen before a jury trial.  These include grand juries, preliminary hearings, witness depositions, suppression hearings, and bench trials.  In most American jurisdictions, these procedures are weak or nonexistent.  But in some places, they are powerful.  California has an unusually demanding grand jury process.  Florida gives defendants broad rights to depose witnesses before trial.  North Carolina provides misdemeanor defendants both an initial bench trial and a subsequent jury trial.  This Article examines these and other unique practices to propose a fresh way of thinking about criminal adjudication.  It should not be an all-or-nothing proposition that begins and ends with the jury trial.  Adjudication is, at its core, the testing of evidence and law, before a neutral tribunal, carried out in public by trained legal experts.  And adjudication, thus understood, can be incorporated into the pretrial criminal process much as it is in civil cases.  Robust pretrial adjudication serves many of the criminal trial's essential functions-producing evidence, creating transparency, imposing burdens, dignifying the parties, and preserving the rule of law.  Such procedures can supplement the rarely exercised right to a jury trial.  And, if made effective, they can help restore the power of courts in a system that has mostly abandoned adjudication.