Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution

JurisdictionUnited States,Federal
Publication year2010
CitationVol. 26 No. 2

Georgia State University Law Review

Volume 26 . „

Article 7

Issue 2 Winter 2009


Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution

David Rossman

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Recommended Citation

Rossman, David (2009) "Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution," Georgia State

University Law Review: Vol. 26: Iss. 2, Article 7.

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David Rossman*


Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and requires an evaluation at the end of the trial process to see if what happened had an adverse effect on the result. Another method creates rules that depend on the reaction of someone else, typically the defendant, to trigger the violation. The last way the Court has created conditional rules is to aggregate the time frame in which to make a judgment about the legitimacy of the actor's behavior, so that it must await further behavior by the same actor or someone exercising governmental power toward the same end.

These rules superficially resemble applications of the harmless error doctrine or examples of waivers of rights, but they differ in fundamental ways. They are far less protective of the rights of defendants and they send a much different message about the limits of government power to those who control the criminal justice system. They create confusion, fail to guide the

* Professor of Law, Boston University Law School. Invaluable assistance in completing this article came from David Kantrowitz and Lucas Oppenheim.



behavior of the government actors whose power the Constitution limits, stand as barriers to institutional efforts at ex ante prevention, mislead the public about the scope of their rights, and often do not take into account any of the symbolic values that lay behind the provisions of the Constitution governing the state's power to use a criminal sanction.

"Sentence first—verdict afterwards." Lewis Carroll, Alice's Adventures in Wonderland, in The Illustrated Lewis

Carroll 99 (Roy Gasson ed., 1978).

The Quiz

If you are reading this article, it is a fair assumption that you are familiar, at least in a general way, with the basic constitutional rules that govern the criminal process in the United States. You know that the privilege against self-incrimination prevents the prosecutor from calling the defendant in a criminal trial as a witness for the State.1 You're acquainted with the fact that the Supreme Court used the privilege in Miranda v. Arizona as the basis for requiring police officers to warn suspects in custody of their right to remain silent before interrogating them. And if you're particularly well versed, you may know that if a defendant remains silent after receiving a Miranda warning, that Doyle v. Ohio prevents the prosecutor from using that fact as evidence of the defendant's guilt.

You are almost certainly aware that the Constitution prohibits unreasonable searches and seizures and probably know that the Supreme Court's decision in Terry v. Ohio required police officers to have reasonable suspicion that a suspect was involved in a crime in order to detain the suspect briefly in a public setting.4 You know that

1. See U.S. CONST, amend. V; Michigan v. Tucker, 417 U.S. 433, 440 (1974) ("[T]he constitutional language in which the privilege is cast might be construed to apply only to situations in which the prosecution seeks to call a defendant to testify against himself at his criminal trial, its application has not been so limited.").

2. Miranda v. Arizona, 384 U.S. 436,467-68 (1966).

3. Doyle v. Ohio, 426 U.S. 610,635 (1976).

4. Terry v. Ohio, 392 U.S. 1,30 (1968).


the Sixth Amendment not only guarantees defendants the right to be represented by an attorney but imposes an obligation on the state to provide lawyers for the indigent.5 You surely have some sense that the same right to counsel provision has additional implications for the way the system implements it in practice. The prosecution, you might well believe, cannot listen in on privileged conversations between the lawyer and his client.6 And, you might remember that there is some quality control mechanism, the idea of effective assistance of counsel, directed toward the competence level of a defendant's attorney.7

You may have a vague memory from law school about the famous Brady case that prohibits the prosecutor from hiding exculpatory


evidence. And if Brady ever led you to think at all about the Compulsory Process Clause, you may believe that the prosecutor cannot prevent the defendant from having access to a potential witness.9

I am quite confident that you are familiar with the concept of the presumption of innocence, though you may not be quite sure where in the Constitution it appears. I have to admit, though, that it is unrealistic to expect you, the casual reader, to be aware at all of the implication it has for the practice of requiring a defendant to appear in front of the jury in prison clothes.10 I trust, however, that you can see the problem.

The stage having been set, it is now fair to ask you to hazard a guess about whether the examples that follow describe situations in which there is a violation of the constitutional rule that governs in each case. And, yes, for each of these examples, there is a rule that controls.

5. Gideon v. Wainwright, 372 U.S. 335,348 (1963).

6. Weatherford v. Bursey, 429 U.S. 545, 560 (1977).

7. Strickland v. Washington, 466 U.S. 668,686 (1984).

8. Brady v. Maryland, 373 U.S. 83, 86 (1963).

9. United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982). 10. Estelle v. Williams, 425 U.S. 501, 512-13 (1976).


1. A police officer comes upon someone standing in the street and with no reason at all to think that the person is involved in criminal activity, other than the fact that the person is wearing a hooded sweatshirt, the officer pulls out his gun and announces: "Don't move."

2. The prosecutor in a bank robbery case does not reveal to defense counsel that an eyewitness to the crime told the police that a third person, not the defendant, was the culprit.

3. The judge presiding over the arraignment of a defendant charged with assault and battery, a misdemeanor that has a maximum sentence of two and one-half years, refuses to appoint a lawyer to represent her even though the defendant insists she is going to take her case to trial in front of a jury.

4. After the defendant testifies on direct that he was just an innocent bystander and not an active participant in the crime, the prosecutor asks on cross-examination: "Isn't it true that after the police gave you a Miranda warning, you remained silent and never told them you were an innocent bystander?"

5. A police detective gives a Miranda warning and hears the suspect say he wants to remain silent. Ignoring the suspect's statements, the detective continues to question him and elicits a confession.

6. Prior to trial, the defendant's court appointed attorney has spoken to him for only one-half hour. In that time, the defendant did manage to tell his lawyer that he had an alibi, and identifies the friends who would corroborate his whereabouts at the time of the crime. The defense attorney does nothing to investigate the alibi.

7. The judge orders a defendant brought into the courtroom for trial, in front of the jury, knowing that the defendant is wearing distinctive prison clothes.

8. An undercover police agent is indicted as a codefendant, though the prosecutor never intends to place him on trial, and, pretending to be on the defendant's side, attends a meeting between defendant and his lawyer where they discuss trial strategy.


9. Law enforcement authorities deport a person in their custody who was arrested at the same time as the defendant and who was a joint venturer in the crime with which the defendant is charged, making the person unavailable to the defense as a witness.

You suspected some sort of trick, didn't you? Of course, none of the examples has obvious answers. In each and every case, the correct answer is: you cannot tell if the relevant constitutional rule has been violated or not. In none of the examples do you have enough information to be able to answer the question. What's missing in each case is something that will only happen in the future.

The reason for this, in a nutshell, is that the rule that governs each situation is a conditional rule. There are three elements that define a conditional rule. First, there must be some actor whose behavior is the target of the rule. Second, the actor must engage in some predicate behavior that triggers the rule. And third, there is some future consequence that defines a violation of the rule.

Each of the examples has an actor whose...

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