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When does the adversarial system commence?

By Gritsforbreakfast

Even most non-lawyers know that the United States uses an a adversarial system of justice in both civil and criminal law. Recently in Rothgery v. Gillespie County, the US Supreme Court heard oral arguments regarding the question of precisely when the investigative function of police ends and the adversarial legal system commences - is it upon indictment, at the bail hearing, upon arrest?Doc Berman has used the phrase "comfortable legal fictions" to describe high-minded but empirically erroneous theories undergirding the legal system, and one such fiction is the idea that, under an "adversarial" system, investigation and prosecution of crimes are separate functions. Police are "fact finders," under this theory, while the adversarial system as it's usually understood commences when formal court proceedings begin...continue to full post

Full post as published by Grits for Breakfast on April 06, 2008 (boomark / email).