Criminal Procedure

Author:David Fellman

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"It was a great day for the human race," Charles E. Merriam wrote in Systematic Politics (1945), "when the idea dawned that every man is a human being, an end in himself, with a claim for the development of his own personality, and that human beings had a dignity and a worth, respect for which is the firm basis of human association." This idea is the predicate for that branch of American constitutional law which is concerned with criminal procedure, for this body of law is deliberately weighted in

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favor of persons accused of crime. This pronounced tilt of the law is based on the assumption that it is vitally necessary to protect the dignity inherent in all human beings, regardless of their station in society.

The commitment of the Constitution to protect in some emphatic way the rights of criminal defendants is reflected in the fact that such protection is a principal theme of the federal BILL OF RIGHTS. Similar protections appear in the bills of rights that form parts of all state CONSTITUTIONS. Even before the ratification of the Bill of Rights in 1791, however, the Constitution in its original form did not ignore the subject altogether. Thus, the privilege of the writ of HABEAS CORPUS was guaranteed, and both BILLS OF ATTAINDER (legislative convictions for crime) and EX POST FACTO laws (laws making criminal acts that were innocent when done) were forbidden (Article I, sections 9 and 10). TRIAL BY JURY "for all crimes" was also guaranteed (Article III, section 2), and the offense of TREASON was defined with meticulous care to prevent abuse of a charge often made on flimsy grounds in moments of great political excitement (Article III, section 3).

The Bill of Rights filled in many more details by spelling out a long list of guarantees designed to protect criminal defendants: freedom from "unreasonable SEARCHES AND SEIZURES " (FOURTH AMENDMENT), INDICTMENT, by GRAND JURY, freedom from DOUBLE JEOPARDY, the RIGHT AGAINST SELF-INCRIMINATION, the right to DUE PROCESS OF LAW (Fifth Amendment), the right to a speedy and PUBLIC TRIAL by an impartial local jury, the right to notice of charges, the right to confront adverse witnesses (i.e., cross-examination), the right to have the assistance of counsel (SIXTH AMENDMENT), and freedom from excessive BAIL and from the infliction of CRUEL AND UNUSUAL PUNISHMENT (Eighth Amendment). In addition, section 1 of the FOURTEENTH AMENDMENT, with its provision that no state shall "deprive any person of life, liberty, or property, without due process of law," eventually opened the door to considerable supervision of criminal justice in the states by the federal courts.

This commitment to the safeguarding of the rights of defendants in criminal cases was deeply rooted in the COMMON LAW system which the earliest settlers brought with them from England. In ancient Anglo-Saxon and Norman times, questions of guilt or innocence were determined by such ritualistic devices as trial by battle or ordeal, or by compurgation (oath-taking), which were largely appeals to God to work a miracle establishing the defendant's innocence. Actually, private vengeance, taking the form of private war or blood feuds, was the principal check on criminal conduct. But by the time the first colonies were established in America, the basic procedures characteristic of modern jurisprudence had taken form. The essence of modern adjudication is the discovery of innocence or guilt through the presentation of proofs and reasoned argument.

Furthermore, it is important that under common law a person accused of crime carries with him the presumption of innocence, which means that the defendant is not obliged to prove his innocence, but rather that the BURDEN OF PROOF is on the prosecution to prove guilt. In addition, jurors must be instructed by the presiding judge that they may convict only if they find that guilt has been established "beyond a REASONABLE DOUBT, " which is the greatest quantum of proof known to the law. In most civil litigation a preponderance of evidence suffices to support a verdict. Thus, in a landmark English case, Woolmington v. D.P.P. (1935), the House of Lords ruled clearly wrong an instruction of the trial judge to the effect that since the accused had shot his wife, the law presumed him to be guilty of murder unless he could satisfy the jury that death was due to an accident. "No matter what the charge or where the trial," Lord Sankey declared, "the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The common law rules relating to the presumption of innocence and the burden of proof are part of the law prevailing in every American state. For example, following the completion of a modern, revised criminal code in Wisconsin, the legislature adopted a statute that declared: "No provision of the criminal code shall be construed as changing the existing law with respect to presumption of innocence or burden of proof." These principles are also firmly rooted in federal jurisprudence. As Justice FELIX FRANK-FURTER, dissenting in Leland v. Oregon (1952), wrote, "From the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt." Similarly, the Supreme Court has ruled that the standard of proof beyond a reasonable doubt in criminal cases is a due process requirement binding upon the state courts. It is, Justice WILLIAM J. BRENNAN asserted in IN RE WINSHIP (1970), "a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence.?" According to the Supreme Court, the states are required to prove beyond a reasonable doubt all elements of the crime with which the defendant was charged, and the jury must be so instructed. An instruction is improper if it has the effect of reducing substantially the prosecution's burden of proof or of requiring the defendant to establish his innocence beyond a reasonable doubt.

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The solicitude of American constitutional law for the rights of the accused is so great that the American system has been described as a defendant's law, in contrast with inquisitorial systems of other countries which give the prosecution many advantages not available in the United States. American public law on this important subject rests upon the recognition of several important considerations that are not the product of abstract theorizing or mere sentimentalism but rather the result of historical experience over centuries of time. For one thing, it is an unquestionably legitimate, indeed essential, function of government to apprehend, try, and punish convicted criminals. But it is also the duty of those public officials who operate the criminal justice system to avoid violating the law themselves in their zeal to combat crime. Of course, our society has a serious crime problem which government cannot and should not ignore, but it has long been recognized that at some point the price of law enforcement may be exorbitant. As Justice Frankfurter observed in Feldman v. United States Oil Refining Co. (1944), "The effective enforcement of a well designed penal code is of course indispensable for social security," but he went on to say: "The Bill of Rights was added to the original constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed."

Surely, one of the...

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