Towards Pretrial Criminal Adjudication

The American criminal justice system faces a crisis of adjudication. Courts rarely decide facts, hear arguments, or hold adversary hearings. Trials are an endangered species. Convictions nearly always happen when defendants plead guilty pursuant to agreements. This crisis of adjudication undermines the system’s legitimacy. The rule of law has little purchase in a regime governed by guilty pleas. Legal rights are not asserted. The government’s evidence is not tested. The values of neutrality, transparency, and legality are sacrificed as power moves from the courtroom to the prosecutor’s office. And punishment leverage, not in-court presentation of evidence, dictates case outcomes. This has created a persistently high risk of wrongful convictions. It has also eroded the rule of law and facilitated the growth of mass incarceration.

To address this crisis, academics and reformers have mostly focused on reviving the criminal jury trial. This Article proposes to reframe criminal procedure to emphasize robust pretrial adjudication. There are a variety of hearings and legal proceedings that can happen before a jury trial. These include grand juries, preliminary hearings, witness depositions, suppression hearings, and bench trials. In most American jurisdictions, these procedures are weak or nonexistent. But in some places, they are powerful. California has an unusually demanding grand jury process. Florida gives defendants broad rights to depose witnesses. North Carolina provides misdemeanor defendants both a bench trial and a subsequent jury trial. This Article examines these and other unique practices to propose a fresh approach to criminal adjudication. It should not be an all-or-nothing proposition that begins and ends with the jury trial. Adjudication is, at its core, the testing of evidence and law, before a neutral tribunal, conducted in public by professionals. And adjudication, thus understood, can be incorporated into the pretrial criminal process just as it is in civil cases. Robust pretrial adjudication serves many of the criminal trial’s essential functions—producing evidence, creating transparency, imposing burdens, dignifying the parties, and preserving the rule of law. Such procedures can supplement the rarely exercised right to a jury trial. And, if made effective, they can help restore the power of courts in a system that has mostly abandoned adjudication.