Formalización durante el Periodo 1996 – 2006:

All authors of the proposals were aware of gaps between adver- sarial and inquisitorial models and understood inquisitorial proposals to be a hard sell. That difficulty is illustrated in David Alan Sklansky’s review of four constitutional law doctrines in which the Supreme Court has seemingly entrenched “anti-inquisitorialism.”345 _{By this, he}

means that a mental image of the continental justice system has played a “broad and enduring” role in American criminal jurispru- dence as an ideal “contrast model” to our adversary system. “There is a broad consensus that the inquisitorial system can and should serve as a kind of negative polestar for American criminal procedure.”346

Sklansky admits that scholars occasionally suggest borrowing from European criminal procedure, “[b]ut these are voices in the wilder- ness.”347 _{If the attitude he describes is limited to Supreme Court jus-}

tices, it may not impede state-level procedural reforms, but Sklansky makes a sociological assertion:

If they think about it at all, the vast majority of American scholars, like the vast majority of American judges, are apt to agree with the Supreme Court that “the civil-law mode of criminal procedure,” far from meriting emulation, should be studiously avoided—indeed, 344. Problem Solving Courts do “not only resolve disputed issues of fact, but also to attempt to solve a variety of human problems that are responsible for bringing the case to court . . . . These newer courts, however, attempt to understand and address the underlying problem that is responsible for the immediate dispute, and to help the individuals before the court to effectively deal with the problem in ways that will prevent recurring court involvement.” Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 FORDHAM URB. L.J. 1055, 1055 (2003); see also

BERMAN,supra note 124.

345. Sklansky, supra note 315. The four areas Sklansky reviewed as seedbeds of anti-inquisitorialism are (1) confrontation and the changes wrought by Crawford v. Washington, 541 U.S. 36 (2004); (2) the Court’s confrontation cases regarding sen- tencing and juries; (3) procedural default (including the debate about citing foreign law); (4) and confessions law. Id.

346. Sklansky, supra note 315, at 1635–36. 347. Id. at 1638.

that avoiding inquisitorial justice is what our own system is all about.348

Although the point is not empirically supported and may be exagger- ated for emphasis, it seems generally correct. American lawyers take mandatory courses on civil procedure and evidence law in law school and train to be adversary-style advocates; criminal procedure is a pop- ular elective.349 _{Relatively few law students take comparative criminal}

procedure seminars, which do not develop the kinds of skills honed in clinical courses. Litigators—meaning virtually all criminal attorneys— develop hard-won skills that make them adept in the arcane world of American trial practice. When these lawyers become members of prestigious bar committees or other venues in which law reforms can advance, most are likely to be ignorant of continental criminal proce- dure, even if not hostile to the idea.

One would expect that when the Supreme Court raises anti-inquisi- torial rhetoric (“ours is an accusatorial and not an inquisitorial sys- tem”350

) it would define what that “inquisitorial system” is. But the Court does not. It uses “civil law system” and “inquisitorial system” interchangeably without noting differences or explaining either.351

It remains unclear what the Supreme Court thought was wrong with the continental system “or how it threatened values that warranted consti- tutional protection.”352

But even if the foundation of the contrast model is thin, it can still lead to harmful stereotypes that are factually wrong.353

Images are created that can stop lawyers from thinking be- yond the scope of what they have learned in law school.354

Is change possible? On close inspection, Sklansky addresses an atti- tude, not a constitutionally grounded rule—and attitudes can change.

348. Id.

349. Law students taking co-author Zalman’s graduate-school wrongful conviction seminar have expressed astonishment at the grimy reality of criminal law from sources like GARRETT,supra note 9, claiming that their law school criminal procedure

courses present an idealized version of legal practice. 350. Rogers v. Richmond, 365 U.S. 534, 541 (1961).

351. See Sklansky, supra note 315, at 1639. Comparative scholarship usually de- scribes “civil law” as a legal tradition that is based on codification and “inquisitorial” as a type of a procedural system within a given tradition. See, e.g., PHILIP REICHEL,

COMPARATIVE CRIMINAL JUSTICE SYSTEMS 80 (6th ed., Pearson 2013).

352. Sklansky, supranote 315, at 1639. Sklansky further argues that this usage re- flects the Court’s understanding that continental European legal systems “are still identifiably the outgrowths of the inquisitorial systems of medieval Europe.” Id.

353. For example, in Crawford v. Washington, 541 U.S. 36, 50, 67 (2004), the Court sees cross-examination as the greatest legal engine ever invented to “tease out the truth.” It went unnoticed that inquisitorial systems have comparable instruments to question the credibility of a witness. When the Supreme Court decided Miranda v. Arizona, 384 U.S. 436 (1966), and stated “our adversary system of criminal proceed- ings commences, distinguishing itself at the outset from the inquisitorial system,” id.

at 477, inquisitorial systems like the German already had established protections against self-incrimination for almost ninety years.

Even though the Supreme Court’s criminal procedure interpretations appear adamantly anti-inquisitorial, proposals that do not fit into some adversary ideal may someday have a chance of acceptance.355

The imperfect discovery rule of Brady v. Maryland,356 _{for example,}

has long been viewed as an adversary system modification,357 _driven

by a concern about convicting the innocent. Thus, Brady’s “purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.”358 _{To guard against such miscarriages, the Court in Brady}

modified party presentation of evidence—a central tenet of the adver- sarial system. In the long view, the Supreme Court is a singular politi- cal-legal institution that follows public opinion in its own way.359 _As

such, it might eventually uphold “inquisitorial” modifications to the adversary trial, depending on a constellation of factors including pub- lic opinion, justices’ views of the seriousness of the wrongful convic- tion problem, and shifts in the Court’s attachment to established procedures.360