Donald A. Dripps, The Substance-Procedure Relationship in Criminal Law, in Philosophical Foundations of Criminal Law (Anthony Duff & Stuart Green eds., Oxford University Press, 2011). Christopher Slobogin Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases. Don Dripps begins his new look at this issue by recasting the traditional procedural dyad-usually dubbed inquisitorialism and adversarialism-into three distinct categories-rationalist, pluralist and reductionist. For Dripps, rationalism, which comes closest to the usual view of the European continent's inquisitorial process, is "the rational discovery of the historical facts and the logical application of the substantive law to the facts so found." Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important. Reductionism is the idea that "the substance-procedure distinction is illusory" because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11). Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules. From Dripps' theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission "conflicts with the legality principle's prohibition of extra-judicial institutional violence" or "conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof." (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence. Other evidentiary limitations-the journalist privilege, the ability of witnesses to claim a right to silence, the courts' authority to exclude an alleged sex offense victim's sexual history-all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception. At the same time, pluralism's commitment to all-lay decision-makers does not clearly undermine the search for truth. And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an"appeal" (to the jury), thus providing further evidence of convergence. Continue reading "Reducing Reductionism"
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