Why Civil and Criminal Procedure Are So Different: A Forgotten History

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff. Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure. Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent

Flipping the Script on Brady

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this reason, is understood to burden the prosecutor. This Article asks whether Brady also benefits the prosecutor, and if so, how and to what extent does it accomplish this? This Article first considers Brady’s structural impact—how the case influenced broader dynamics of litigation. Before Brady, legislative reform transformed civil and criminal litigation by providing pretrial information to civil defendants but not to criminal defendants. Did this disparate treatment comport with due process? Brady arguably answered this question by brokering a compromise: in exchange for imposing minor obligations on the prosecutor at trial, the Court signaled to the prosecutor that to withhold information before trial does not violate due process. This Article also explores Brady’s narrative treatment. This Article contends that the narrative that Brady imposes a significant burden on prosecutors, despite scholarly efforts to move past it, is pervasive. This narrative of prosecutorial burden confers unearned legitimacy to case outcomes. This Article finally examines how prosecutorial interests have deployed Brady politically, focusing on how the Department of Justice has wielded the Brady obligation to deflect political attempts to expand pretrial discovery. In the attempt to provide a fuller account of the case’s benefits and burdens on litigants, this Article suggests the possibility that Brady can also be viewed as a prosecutorial ally. This Article uses this possibility as an opportunity to consider alternative approaches to assessing whether the criminal pretrial procedural regime comports with due process

Race-Based Remedies in Criminal Law

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies. This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies. There is promising decisional law surrounding the use of race-conscious efforts to address criminal system challenges. Drawing on this favorable doctrine, this Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms. To enrich the analysis, this Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pretrial risk assessment tool. This Article finds reasons to be optimistic about how race-based remedies might fare within the criminal system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders. Within this unique context, this Article provides a template for a race-based approach that potentially survives an equal protection challenge

Race-Based Remedies in Criminal Law

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies. This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies. There is promising decisional law surrounding the use of race-conscious efforts to address criminal system challenges. Drawing on this favorable doctrine, this Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms. To enrich the analysis, this Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pretrial risk assessment tool. This Article finds reasons to be optimistic about how race-based remedies might fare within the criminal system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders. Within this unique context, this Article provides a template for a race-based approach that potentially survives an equal protection challenge

Flipping the Script on Brady

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this reason, is understood to burden the prosecutor. This Article asks whether Brady also benefits the prosecutor, and if so, how and to what extent does it accomplish this? This Article first considers Brady’s structural impact—how the case influenced broader dynamics of litigation. Before Brady, legislative reform transformed civil and criminal litigation by providing pretrial information to civil defendants but not to criminal defendants. Did this disparate treatment comport with due process? Brady arguably answered this question by brokering a compromise: in exchange for imposing minor obligations on the prosecutor at trial, the Court signaled to the prosecutor that to withhold information before trial does not violate due process. This Article also explores Brady’s narrative treatment. This Article contends that the narrative that Brady imposes a significant burden on prosecutors, despite scholarly efforts to move past it, is pervasive. This narrative of prosecutorial burden confers unearned legitimacy to case outcomes. This Article finally examines how prosecutorial interests have deployed Brady politically, focusing on how the Department of Justice has wielded the Brady obligation to deflect political attempts to expand pretrial discovery. In the attempt to provide a fuller account of the case’s benefits and burdens on litigants, this Article suggests the possibility that Brady can also be viewed as a prosecutorial ally. This Article uses this possibility as an opportunity to consider alternative approaches to assessing whether the criminal pretrial procedural regime comports with due process