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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
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.
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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