The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication

With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but regulates investigation with a light hand. In theory, because adjudication checks investigation, weak investigative regulation should not endanger accuracy. Yet adjudication—which occurs through plea bargaining much more often than trials—is an inadequate guarantor of accuracy for many reasons, one of which is the systemic weakening of the adversarial process achieved due to legislative underfunding of indigent defense. However, recent innovations improving fact-finding in criminal adjudication—most prominently DNA analysis— have made accuracy a higher priority by making errors more difficult to conceal. As a result, we now see early signs of a new model for criminal justice: a system that depends less on adversarial process and more on practices akin to those found in administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of defense attorneys— scrutinizing the reliability of state evidence and presenting evidence the state ignored—can, in significant ways, be supplanted by other mechanisms, many of which are more politically sustainable than increased funding for indigent defense. New investigation-stage practices have begun to take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement ineffectual defense counsel in aiding accuracy, and these practices have some advantages over adversarial lawyering. As a result, adjudication is becoming a relatively less important procedural stage for truth-finding as investigation becomes more so; adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial. †Class of 1958 Alumni Professor of Law, Washington & Lee University School of Law. I am grateful to workshop participants at Fordham University, University of Arizona, and University of Virginia law schools who provided helpful feedback on earlier versions of this work. I am especially grateful to Dan Richman, Bill Stuntz, Anne Coughlin, and Mike Klarman, who provided valuable comments after generously reading earlier drafts. The Lewis Law Center at Washington & Lee University School of Law provided financial support for this project. Most of this paper was written while I visited on the law faculty at University of Virginia, where many colleagues and Dean Jeffries were especially supportive. 2 CALIFORNIA LAW REVIEW [Vol. V:P INTRODUCTION Adjudication systems vary in how they balance commitments to multiple, competing purposes. Accurate fact-finding is only one goal; dispute resolution is another, and in American criminal justice, constraint of government power is a third. Those purposes sometimes conflict.1 One recognized feature of adversarial adjudication is that it gives higher priority to dispute resolution and party participation than inquisitorial systems, which are less willing to trade off accuracy for party control of adjudication practice.2 Even if government-dominated inquisition seemed likely to provide better truth determination, we would be reluctant to employ it. To put our particular mix of systemic priorities into action, American criminal procedure has chosen a distinctive approach. Broadly speaking, governments have two ways to regulate behavior: obligatory commands (or rules) and creation of incentives.3 With respect to accuracy 1Abram Chayes described the “traditional model” of adversarial adjudication as “relatively relaxed about the accuracy of its factfinding.” See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1287-88, 1297 (1976). For a recent account of procedure’s competing goals, see Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181 (2004) (arguing that accuracy is not the overriding goal of procedural fairness, and advocating for the importance of party participation). For a more critical account, see WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH (1999). 2See generally MIRJAN R. DAMAŜKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 101-25 (1986) (describing adjudication systems that prioritize conflict resolution). For a classic mocking but insightful description of the adversarial process, see Thurmond W. Arnold, Trial by Combat and the New Deal, 47 HARV. L. REV. 913, 918-22 (1934). 3Cf. Edward L. Rubin, Images of Organizations and Consequences of Regulation, 6 THEORETICAL INQUIRIES IN LAW 347 (2005) (describing options for governmental action as choices between commands and incentive creation). YEAR] Accuracy in Criminal Adjudication 3 and reliability goals, we govern adjudication with detailed constitutional and statutory commands, but we govern investigation through incentives. Police searches and suspect interrogations are extensively regulated by constitutional rules with respect to other goals, such as protecting citizen privacy, but largely are not regulated for the purpose of making evidence more reliable.4 (In fact, search and interrogation rules may create incentives for investigators to seek less reliable forms of evidence that are governed by fewer rules and thus easier to obtain, such as jailhouse informants.) In our adversarial system, the reliability and thoroughness of investigation—meaning not just police activity but all efforts, by both sides, to generate an accurate factual account of relevant events—is governed indirectly by the incentives arising from highly regulated trial adjudication. We lightly govern investigation’s reliability, leaving it in the control of parties, largely because we rigorously structure adjudication. Strong regulation of adjudication permits weak rule-based investigative regulation5 because, as the Supreme Court repeatedly implies in its criminal procedure decisions, we believe that adjudication checks investigation.6 4Rules against coercive interrogation are a possible exception. One rationale for such rules is that statements produced by torture or coercion are unreliable. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936). 5Rule-based investigative regulation is weak in two senses: weakly (or lightly) regulated, and weak in its ability to produce accurate factual accounts without the support of adjudication practice. 6Especially in right-to-counsel cases, the Court has repeatedly stressed the importance of defendants forcing the “prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Chronic, 466 U.S. 648, 656 (1984); see also Alabama v. Shelton, 535 U.S. 654, 667 (2002) (quoting same language from Chronic); Lockhart v. Fretwell, 506 U.S. 364, 377 (1993) (quoting same); Moran v. Burbine, 475 U.S. 412, 430 (1986)