CHAPTER 2 OVERARCHING POLICY ISSUES IN CRIMINAL PROCEDURE

• Jurisdiction: United States

Chapter 2 OVERARCHING POLICY ISSUES IN CRIMINAL PROCEDURE

The law does not develop in a philosophical or policy vacuum. Lawyers, students, and scholars must be sensitive to various overarching controversies affecting the field if they are to appreciate — and be able sensibly to critique — the law of criminal procedure. At times, lawmakers expressly consider the issues discussed in this chapter in formulating criminal procedure doctrine; more often, however, these subjects silently animate lawmaking.

§ 2.01 NORMS OF THE CRIMINAL PROCESS¹

The legitimacy of the United States system of criminal procedure depends on at least four sometimes overlapping, sometimes inconsistent, norms: (1) the accuracy of verdicts; (2) the fairness of the process itself; (3) the degree to which the justice system limits the power of government in relation to citizens ensnared in the criminal process; and (4) the efficiency of the process. These norms are considered in greater detail in this chapter, particularly in Sections 2.02 through 2.04.

Regarding accuracy, a perfectly accurate criminal process would result in no arrests of innocent persons or, somewhat less perfectly, innocent persons would be released prior to trial or, still less perfectly, as the result of acquittal at trial. Similarly, in an entirely accurate system, all guilty persons would be arrested or, at least, all those guilty who are arrested and charged would be convicted. Any system that processes and evaluates information, of course, makes errors in evaluation. However, in light of what is at stake in the criminal law if errors are made — innocent persons lose their liberty or life as the result of unjust conviction and punishment, and guilty persons erroneously evade conviction, possibly to commit more crimes — a system that does not value accuracy cannot easily be characterized as legitimate.

A second way to measure the legitimacy of a criminal justice system is by how fairly it treats persons suspected of, or prosecuted for, alleged criminal activity. Although the "accuracy" and "fairness" norms sometimes overlap, they represent different and sometimes conflicting concerns, in part because the concept of fairness suggests that even guilty persons should be treated with care for their rights and human dignity. Of course, "fairness" and "human dignity" are imprecise concepts, so controversies abound in this realm. For example, does "fairness" require that defense lawyers always be provided for defendants accused of minor crimes? Does it violate human dignity — and, if it does, is it "unfair" — to use harsh methods (even torture) to gather information from persons accused of past, or suspected of future, acts of criminal terrorism? Is it unfair to deny a defendant the opportunity personally to confront and cross-examine his accuser when the accuser is a young child who claims he sexually abused her?

A third concern of the American criminal process is to place sensible limits on the power of the government in its treatment of persons accused of crime. Sometimes this norm overlaps accuracy. For example, use of torture to secure a confession can result in inaccuracy (a false confession); and, at least until the attacks of September 11, 2001 and the Iraq War, it seemed a truism that torture is a blatant violation of the fairness norm.² But, the desire to promote limited government is sometimes an independent value. For example, a rule requiring the exclusion of evidence obtained by the police, without a search warrant, from a suspect's bedroom, may result in a less accurate outcome (because the excluded evidence is reliable). One can also plausibly argue that it is unfair that "[t]he criminal is to go free because the constable has blundered."³ Something more is involved, however, in enforcing a rule prohibiting the police from entering a bedroom without a warrant: it is the principle that explains the ratification of most of the provisions of the Bill of Rights, namely, that we are a political system that values individual rights and favors limited governmental power to interfere in the lives of its citizens. Therefore, we prefer that, rare exceptions aside, the police obtain judicial approval (a search warrant) before they enter the private confines of a home.

Efficiency is a fourth norm. An inefficient system is wasteful of human and institutional resources. A system that is slow to reach an outcome can also undermine social protection by delaying the confinement and punishment of the guilty. It can also render more agonizing the experience of the innocent accused. Moreover, the provision of many procedural protections — e.g., counsel for indigents, trial by jury — are not inexpensive. On the other hand, the same grease that permits the wheels of justice to turn smoothly can sometimes undermine accuracy (e.g., if the system encourages the innocent to plead guilty) or occur at the arguable cost of fairness to the accused (e.g., by denying defendants the right to have a jury decide upon their guilt).

Readers would do well to determine whether the rules of criminal procedure, considered in this Text, further one or more of the preceding norms.

§ 2.02 ALTERNATIVE MODELS OF CRIMINAL JUSTICE⁴

[A] Overview

As is evident from the preceding chapter section, criminal procedural law is shaped by various overlapping, but sometimes conflicting, norms. Although society desires a reliable criminal justice system — one that accurately sorts out the innocent from the guilty — the criminal process is intended to vindicate other goals, as well, such as fair treatment of criminal suspects and racial, sexual, and economic equality in the justice system.⁵ Vindication of the latter goals, however, may impair the efficiency of the criminal system, still another norm, so the matter of criminal justice goals comes down to setting priorities.

How have we — and should we — set priorities? For more than a generation various scholars have sought to answer these questions by constructing models of an adversarial system of criminal justice that can account for the procedural rules that have developed and/or suggest how a sensible system might be formulated.

Professor Herbert Packer once identified two models of criminal procedure "that compete for priority in the operation of the criminal process."⁶ He termed them the "Crime Control" (hereafter, CC) and "Due Process" (hereafter, DP) models of criminal justice. Packer's analysis has been criticized,⁷ and alternative models of criminal justice have been suggested by other commentators.⁸ Nonetheless, his articulation of the models has greatly influenced thought in the field.

The models are summarized below. Although they are usually discussed as if they represent mutually exclusive visions, some commentators believe that with slight modifications of the goals, many disputes disappear.⁹ Nonetheless, the reader may find it useful to evaluate procedural law, as set out in this Text, in light of these models.

[B] Crime Control Model of Criminal Justice

The CC Model is founded on the principle that repression of crime is the most important domestic goal of government. The criminal sanction is "a positive guarantor of social freedom" and essential to the maintenance of "public order."¹⁰ In light of the paramount significance of crime prevention, CC advocates place a premium on efficiency in the investigation and prosecution of alleged law violators.

How do we make the process efficient? First, informality is desirable. To the extent feasible, nonjudicial processes are preferable to formal, judicial ones. Great faith is placed in the expertise of police and prosecutors. "Most fact-finding in the crime control model is conducted by the police in the streets and station-houses, not by lawyers and judges in the courts."¹¹ Police officers are permitted substantial opportunity to function free of legal impediments ("ceremonious rituals"¹²), including lawyers, as they investigate criminal activity, screen out the innocent, and "as expeditiously as possible, [secure] the conviction of the rest, with a minimum of occasions for challenge . . . ."¹³ Trials, with their formality, rigid rules of evidence, and adversarial conditions, are to be avoided whenever possible through guilty pleas.¹⁴

A second way to further efficiency is through uniformity. That is, if large numbers of cases are to be handled efficiently, "[r]outine, stereotyped procedures are essential." According to Packer, the CC Model should look like "an assembly-line conveyor belt down which moves an endless stream of cases, never stopping."¹⁵ Cases should not be taken off the belt unless informal procedures indicate that the suspect did not commit the offense.

Third, the CC Model functions on the premise that most suspects are factually guilty of the offense for which they are being prosecuted.¹⁶ By assuming the factual guilt of a suspect, the CC advocate expresses confidence in the criminal justice system; and the presumption helps reinforce society's desire to promote an efficient system without provoking accuracy concerns. The CC Model is less enamored of, and less concerned with, the legal requirement of proving guilt beyond a reasonable doubt, applicable at trials, that presumes the innocence of the accused.

[C] Due Process Model of Criminal Justice

The values of the DP Model may be understood by contrasting them to the CC Model. First, DP advocates, while not discounting the desirability of preventing and punishing crime, believe in the liberal view of "the primacy of the individual and the complementary concept of limitation on official power."¹⁷ Therefore, the DP model imposes many restraints on government, especially on the police.

Second, advocates of the DP Model question the reliability of informal systems of criminal justice. Whereas the CC system pictures police officers as skilled investigators likely to ascertain the truth if obstacles are not placed in their way, the DP Model...