INTRODUCTION
WRONGFUL VERDICTS, WRONGFUL PUNISHMENT, AND
It is very likely that the adversarial process is an important cause of the various types of errors just described. The plea agreement is the ultimate expression of the adversarial principle that the parties control the production of evidence.
THE GENERAL CASE FOR A HYBRID SYSTEM
EMPIRICALLY COMPARING ADVERSARIALISM AND
In addition, during the adjudication phase, the judge must work in an open court, in full view of the parties. Third, a greater role for the judge could help redress the imbalance that almost always exists between the state and defendants, especially when the defendant is poor.8 4 Prosecutors will know that the judge is poor. allowing a plea agreement conditioned on waiving the right to access impeachment materials and affirmative information.
Also from a constitutional perspective, this manifestation of the inquisitorial process can only be viewed positively. To get an idea of the variety of experts consulted by the courts, see generally DAVID L. One of the most stunning aspects of European trial procedure for American viewers is that the suspect is often the first to speak.
discuss a study that concluded that groups with knowledge of a defendant's prior conviction rarely used it to weigh his credibility); Roselle L.
FUNDAMENTAL RIGHTS IN A HYBRID CRIMINAL JUSTICE
THREE PROPOSALS FOR A HYBRID REGIME
The hybrid system proposed here would modify the U.S. system in three ways, corresponding to the three flaws in the adversary system identified in Part II. Second, the court would, to the extent feasible, control the extraction of information from expert witnesses, through means that ensure full disclosure of the expert's factual findings and reasoning. These tools could include court-appointed experts, the arrangement of pre-trial meetings, greater use of jury instructions, and the practice of hot tubbing. Third, defendants would be persuaded to provide unsworn testimony describing their side of the story, and would also be subject to questioning by the judge.
To ensure a fair treatment of the defendant consistent with constitutional doctrine, the European practice of the defendant to testify first would be modified and the American rules of discovery and impeachment adjusted. These proposals are offered as thought experiments, with the recognition that their implementation presents significant challenges. The first challenge, of course, is that they must be harmonized with constitutional guarantees.
Second, as happens with any attempt to insert a new procedure into a pre-existing structure, these proposals have cascading effects on the rest of the process that must be acknowledged.
THE JUDICIAL OBLIGATION TO DISCOVER THE TRUTH
Jury Trials
Contrary to the well-known aphorism about the types of questions a good adversary cross-examiner asks, a judge is likely to ask questions to which he or she does not know the answer.8 0 A judge will not need to engage in the type of manipulation described by Jerome Frank.1 While lawyers may still want to stand or obfuscate when their turn comes, any attempts to do so are much more likely to be taken for what they are, given the facts that the judge has already brought forward. Second, because they will be called by the judge rather than the parties, witnesses themselves will be less biased. Although the parties can still try to influence the witnesses before the trial, whatever coaching takes place will be less effective, since the parties cannot know what types of questions the judge will ask on a "direct" examination, and also not how much like cross-examination it is. will be.
Because both sides can still ask questions and call witnesses that the judge does not call, Sixth Amendment rights are not violated. The judge is simply added as a second questioner, albeit a dominant one; as such, this format can be seen as highlighting the current practice of occasional judicial (and in some countries jury) hearings.81 Some courts have rightly expressed concern about inconsistent judicial intervention during witness hearings because they may lead the jury. to believe that the judge is biased toward one side or the other.8 8 Courts have also been concerned about the effect a judge's questioning behavior might have on the jury.89 But if the judge's questioning is limited to the opening of each witness. with an adversarial process so compromised by imbalance .. that true adversarial testing is virtually impossible”). A related question is how judges would respond to evidentiary objections to the judge's questions, a question that does not arise in Europe.
It depends on a fair and efficient judicial bureaucracy supported by high standards of selection, training and performance, and protected from political and public pressure by some form of judicial mandate.”90 Similarly, prosecutors must be able to to prepare a balanced and complete system. file for the judge;9' otherwise, the judge's question will at best be inefficient and at worst completely miss the relevant points.
Plea Bargained Cases
While this limitation would not preclude dismissal of frivolous or meritorious claims,10 4 it would bar dismissal of Brady claims, due process claims related to eyewitness trials, and other claims attacking the validity of guilt and sentencing. '0 5. See Stuntz, supra note 35, at 596 ("Even when sentencing was widely discretionary, judges tended to follow agreed upon sentencing recommendations."). This Court's Sixth Amendment cases do not automatically prohibit a sentencing court from considering factual matters not found by the jury and increasing the sentence as a result.”).
That's because, given the cost of the American jury trial compared to its European counterpart, American prosecutors have more incentives to negotiate than their European counterparts; Prosecutors will still offer breaks to defendants simply in exchange for forgoing a jury trial.107 And as long as there is a factual basis for any burden reduction prosecutors offer in exchange for jury relief, the judge cannot upset the deal, because the The decision to charge is a prerogative of the prosecuting authorities. Many trials will therefore resemble (slender) sentencing hearings. Furthermore, the costs of the increased number of trials that would result from the proposal could be offset to some extent by a reduction in the number of challenges to judgments. (due to the improved basic factual requirement) and a decrease in the number of long sentences (which would be imposed less often once prosecutors lose control over sentencing and judges are truly responsible for sentencing.'0 9), with in accordance with the text, it is argued that "Plea agreements should properly be interpreted as bilateral contracts involving three parties: the prosecutor, the defendant and the court").
Rethinking the role of the judge as truth finder should go a long way to avoid the potential for distortion associated with the current party-controlled system.
THE EXPERT'S OBLIGATION TO REMAIN NEUTRAL
For example, in Germany, parties can respond in writing to the court's expert's report, call in another court-appointed expert if the first expert's work is deficient, and retain their own experts if they are dissatisfied with those of the court .'' 7 If this procedure could be implemented in the United States, it would likely reduce the number of erroneous verdicts based on flawed science, which the DNA exoneration cases have shown to have played a role in numerous wrongful convictions. Ton Broeders, The Role of the Forensic Expert in an Inquisitorial System, in ADVERSARIAL VERSUS INQUISITORIAL JUSTICE: PSYCHOLOGICAL PERSPECTIVES ON CRIMINAL JUSTICE SYSTEMS, supra note 80, at 245, 248 (noting that the Institute was founded in 1994). In Europe, this ban applies to all witnesses, not just experts, and is judicially enforced.123 Strange as this rule may seem to American lawyers, refusing witness contact during pretrial proceedings is a natural consequence of the inquisitorial premise that judges, and not lawyers, control the production of evidence.
Compare Langbein, supra note 94, at 841 ("The effective use of court-appointed experts as exemplified in German practice presupposes early and extensive judicial involvement in the formation of all evidence."), with CECIL & WILLGING, supra note 119, at 22-23 (noting that Rule 706 dismissals often stemmed from the trial court not discovering until too late in the trial that the parties' experts would not provide reliable testimony). stating that in a non-adversarial proceeding, "[t]he parties should not attempt to tamper with, much less prepare, the testimony of witnesses at trial. Witness 'treatment' comes dangerously close to various criminal offenses of interference with the administration of justice." . ); Langbein, supra note 94, at 834 ("German judges are given strong and clear doubts about the credibility of the testimony of witnesses who have previously discussed the matter with lawyers or who have unfairly sided with a party."). (citing Benjamin Kaplan, Arthur T. stating that due process guarantees the defendant "access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense").
If ninety-nine out of a hundred experts agree on a proposal, one side can name the outlier, and the other can name one of the heartland experts.
THE DEFENDANT'S OBLIGATION TO TESTIFY
CONCLUSION
The propositions of this article—judicial review of judgments of guilt and punishment, inquisitorial treatment of experts, and the requirement that the defendant give unsworn testimony—are foreign to American trial procedures. which requires an instruction to the jury that no adverse inferences may be drawn from the defendant's failure to testify. Dodson, What Went Wrong with Federal Rule of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence, 48 DRAKE L.
noting that "many criminal defendants" choose not to testify to avoid the prejudicial impact of having prior convictions dismissed). Saks, On the Ineffectiveness of Limiting Instructions: When Jurors Use Evidence of Prior Conviction to Determine Guilt, 9 L. Adoption of these propositions would reduce the adversarial bias of the process and therefore, if empirical research is any guide, would to increase the accuracy of judgment.
In short, the introduction of these proposals could reduce wrongful convictions, wrongful acquittals and wrongful punishment at costs that are legally and fiscally acceptable.
