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26 Stan. L. Rev. 1009 (1973-1974)
Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure

handle is hein.journals/stflr26 and id is 1025 raw text is: Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure Abraham S. Goldstein* In Two Models of the Criminal Process,' Herbert Packer captured bril- liantly the tension between substance and procedure in enforcing criminal law. Using due process and crime control to describe normative models of criminal procedure, he explored in meticulous detail the implications of those models for the several stages from arrest to conviction At each of the stages, he found an intense competition between the advocates of crime control, preoccupied with managerial efficiency, and those who would use due process to set procedural limits On efficiency. In tracing the inter- action of norm and practice, he opened new and promising lines of inquiry. Criminal law scholars owe Packer a great debt which can best be re- paid by pressing further along the lines he cast. In this essay, I shall make a preliminary effort to do so. But first I shall place Packer's contribution, historically and conceptually, in the literature of American criminal law. I shall then suggest that additional models might be useful and that one might be drawn from inquisitorial themes in American criminal procedure. I. IDFAL, REALrrY, AND Tim GEmis oF Two MODELS Packer's Two Models is a compelling statement of the conflict between theory and practice which pervades every field but which has nagged most insistently in American criminal law. Almost from the adoption of the Constitution, it has been apparent that the provisions dealing with criminal procedure represented a set of ideals rather than a code of practice. Though the provisions are remarkably specific, they were written for a society which had only rudimentary institutions for crime control. As the decades and centuries passed, dissonance developed between the ideals and a constantly changing reality. Informal processes arose which did the work of crime control while occupying a no-man's land outside formal theory. It became commonplace for bail to be manipulated to accomplish preventive * B.B.A. 1946, C.C.N.Y.; LL.B. 1949, Yale University. Dean, Yale Law School and William Nelson Cromwell Professor of Law. I. 113 U. PA. L. REv. i (x964). A revised version is in H. PACKER, THE Lnmrrs op T E CRIMINAL S m-arxoN 49-246 (968). 2. 113 U. PA. L. REv. at 24-61.

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