C. Ronald Huff, a University of California, Irvine, professor whose research in the early 1980s helped spur greater international interest in wrongful convictions, says research shows that police and prosecutorial misconduct may be worsened by the adversarial system used in the United States and some other countries.

Drawing on research presented in Wrongful Conviction: International Perspectives on Miscarriages of Justice, a book he co-edited with Martin Killias of the Universities of Zürich and Lausanne, Huff noted in a recent address before the European Association of Psychology and Law that official misconduct “appears to be less frequent in European nations with the continental/inquisitorial system than in the U.S.”

When it comes to prosecutorial misconduct, Huff said, “a key factor differentiating U.S. prosecutors from most European prosecutors is that U.S. prosecutors are elected, which introduces a strong political element in their motivations, and the fact that sanctions for such behavior are extremely rare.”
Huff said that the adversarial system, with its greater emphasis on competition between the prosecution and the defense than exists in inquisitorial system often adds to the problem.

“However, neither system is perfect,” Huff cautioned. He cited the research of Chrisje Brants in the Netherlands, for example, who argues that the Dutch inquisitorial system has developed its own problems. First, he said, public pressure on prosecutors to punish criminals has caused them to “behave more like adversarial prosecutors bent on convictions, and since the defense is not expected to conduct its own investigations, this does not make for a level playing field.” Second, Huff said Brants’ research has shown, courts are more likely to “become victims of confirmation bias” because judges tend to be closer to prosecutors and procedures don’t permit adequate debate.

“Similar concerns have recently been voiced by defense attorneys in France, for example, who have indicated that they often wish they had some elements of the adversarial system,” Huff said. “Nathalie Dongois also notes that the proportion of decisions overturned in France is quite small in comparison to many other nations, suggesting the possibility that many errors may go undetected due to the very strict rules governing petitions of revision, thus protecting final decisions as really “final.”

Huff said he and Killias hope to search for solutions to these problems in a second book.