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Abstract

Police and prosecutorial activities that take place long before a criminal trial are frequently critical to, even dispositive of, the accuracy and reliability of case disposition. At the same time, the regulatory touch of constitutional criminal procedure in the pretrial realm is insistently light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely reigns.

A prevailing explanation for this state of affairs is rooted in our putative preference for an accusatory rather than inquisitorial system of criminal justice. And the leading solutions on offer frequently urge at least a partial turn away from adversarial obsession to embrace more inquisitorial traditions. The central argument of this Article is that this prevailing account is incomplete, and that the gaps have real world consequences for criminal justice reform. The Article uncovers an additional and consequential strain in the doctrinal narrative, one that depicts the pretrial world as the very inquisitorial, Continental mode that is so roundly rejected in the context of adjudication. This “quasi-inquisitorialism” in turn enables the Court to construct a separate realm of prosecutorial and police bureaucracy, professionalism, and expertise that purportedly fills the gap in judicial oversight. In addition to offering a fuller explanation of the structure of the Court’s constitutional criminal procedure doctrine, this account aims for greater leverage for reform. The Article concludes by suggesting that exploiting this quasi-inquisitorial narrative might offer promising inroads—doctrinally, politically, or both—for reformed approaches to investigative oversight, pretrial discovery, and plea bargaining.

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