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Book Chapter

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In a volume devoted to comparing adversarial and inquisitorial procedures in Western countries, the subject of the death penalty is an anomaly. Any system of adjudication must address several basic tasks: how to obtain information from parties and witnesses, how to evaluate that information, how to utilize expert knowledge, how to act in the face of uncertainty, how to review and reconsider decisions. By comparing how competing systems deal with these tasks we can hope to learn something about the strengths and weaknesses of alternative approaches to common problems. The death penalty, however, is not an essential function of a system of justice; it is not even a common element. Not a single Western country with an inquisitorial system of justice has retained the death penalty, and neither has any major Western country that uses an adversarial system-except the United States. As a result, it is impossible to compare how modern adversarial and inquisitorial systems handle the difficulties of administering capital punishment. Instead, I will address a different question: How well does the American system of adversarial justice manage the difficulties of capital cases?


Reprinted from Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems, 2003, 107-17, with permission of Kluwer Law International.