Criminal procedure in perspective.

Author:Kinports, Kit

    The reasonable person has long been a fixture of this country's legal landscape, figuring most prominently in the law of torts but also in many other arenas, including substantive criminal law, (1) employment discrimination, (2) securities fraud, (3) and constitutional tort litigation. (4) Originally identified with the reasonable man, the standard has been hailed as the "personification of a community ideal of human behavior," (5) which requires not only that "every man should get as near as he can to the best conduct possible for him," but also that he "come up to a certain height." (6) Its detractors, on the other hand, have described the standard as "vague[]" (7) and "a palpable fiction." (8) Even after the reasonable man was replaced by the reasonable person, the standard continued to be surrounded with controversy, as critics have called for a more subjective measure of reasonableness, characterizing the reasonable person as a "legal abstraction[] [that] hide[s] [and] perpetuate[s] ... social inequities," (9) and a "naive" construction that "produces distorted ... rules and ignores the real world." (10)

    This whole controversy has, for the most part, passed the Supreme Court's criminal procedure jurisprudence by. The Court was recently given an opportunity to join the fray in Yarborough v. Alvarado, (11) where it was asked to apply the Miranda definition of custody--a standard focused on the reasonable person in the defendant's position (12)--to a seventeen-year-old suspect who had no prior experience with the criminal justice system. (13) Instead of contributing meaningfully to the debate, the Court made the simplistic suggestion (contrary to the overwhelming weight of lower court authority (14)) that the suspect's age might not be relevant because "the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics--including his age--could be viewed as creating a subjective inquiry." (15)

    In fact, the Supreme Court's criminal procedure jurisprudence is even further removed from the current debates surrounding the reasonable person standard because the Court tends to shift opportunistically from case to case between subjective and objective standards and between whose point of view--the police officer's or the defendant's--it considers controlling. In making this claim, I examine the Supreme Court's Fourth Amendment search and seizure opinions as well as the Court's rulings on the admissibility of confessions (based on the Fifth Amendment interests protected by Miranda, the Sixth Amendment right to counsel, and the due process voluntariness test).

    In its search and seizure decisions, the Supreme Court emphasizes the exclusionary rule's deterrent function, suggesting that the Fourth Amendment's primary purpose is to deter unconstitutional police behavior, and therefore focusing on the reasonable police officer. (16) By contrast, the Court has indicated that the familiar Miranda warnings were designed to dispel the inherent coerciveness of custodial interrogation, and therefore the controlling perspective is that of the suspect, frequently the reasonable person in her position. (17) The purpose of the Sixth Amendment right to counsel, on the other hand, is to protect the integrity of the adversary process, and the Supreme Court has therefore examined the subjective intent of the police in ruling on Sixth Amendment challenges to confessions. (18) Finally, the reach of the due process ban on involuntary confessions has traditionally turned primarily on the subjective perspective of the suspect; nevertheless, the Court has raised the notion of deterrence in this context as well, requiring evidence of overreaching on the part of the police. (19) Despite these generalizations, the Court has not adhered to a single approach in any of these areas, but instead has shifted between objective and subjective standards and between the perspective of the defendant and that of the police officer.

    In sketching out my claims, Part II discusses the Supreme Court's Fourth Amendment jurisprudence, (20) and Part III analyzes the confession cases. (21) In each area, I find shifts in perspective that cannot be explained by the purposes the Court has told us underlie the particular constitutional provision at issue. Part IV examines the possibility that the inconsistencies described in the previous two sections might be attributable, at least in part, to the Court's views on the relative strengths and weaknesses of subjective and objective tests. (22) After considering the comments the Court has made about those tests in its criminal procedure rulings, however, I conclude that the general attributes of subjective and objective standards cannot account for the divergent perspectives found in the cases. Part V then addresses the Court's opinion in Yarborough v. Alvarado and the propriety of incorporating an individual's subjective characteristics into the reasonable person standard, analyzing the question of age that the Court faced in Alvarado as well as the issues of race that pervade our criminal justice system. (23)

    In the end, I do not advocate that the Court choose one perspective for all criminal procedure cases or even necessarily for all cases interpreting a particular constitutional provision. (24) What I do maintain, however, is that the Court should adopt a principled, consistent approach to the question of perspective, based on the interests a particular constitutional protection is designed to further. Taking the Court at its word as to what those purposes are leads me to the following conclusions.

    First, those constitutional provisions that are purportedly designed to deter abusive police practices should focus on the party to be deterred--the police. Given the Court's emphasis on deterrence in the Fourth Amendment context, most of the search and seizure cases clearly fall into this category. The Sixth Amendment confession cases, which are aimed at preserving the adversary process--i.e., ensuring that the police do not act to prejudice the defendant's right to a fair trial--likewise belong here. If the Court is genuinely interested in encouraging proper police behavior in these areas, deterrence theory suggests the importance of both subjective and objective considerations. Thus, suppression motions raising Fourth Amendment claims or challenging the admissibility of confessions on Sixth Amendment grounds should be granted in cases where the police either acted in subjective bad faith or failed to satisfy objective standards of reasonable police behavior.

    Second, the Supreme Court opinions interpreting constitutional doctrines aimed at promoting voluntary decisionmaking and/or dispelling coercion--for example, the Miranda and voluntariness due process cases, the Fourth Amendment rulings governing the consent search exception, and the decisions involving a suspect's waiver of her constitutional protections--are harder to categorize because the Court has not been consistent even in identifying the basic premise underlying these doctrines. Although the terms "involuntary" and "coerced" may be "interchangeabl[e]," (25) they arguably carry "subtly different" connotations, (26) and in fact the Court has used them in two conflicting ways. On the one hand, the Court has at times indicated that the central purpose here is to preserve a criminal defendant's right to make a free and unconstrained choice. This line of reasoning--articulating what I call the "consent model"--suggests that the Court should focus on the defendant's perspective, applying a subjective standard and examining the decision made by the particular defendant to ensure that it was truly voluntary. The Court may prefer an objective "reasonable defendant" standard in some cases, in the interest of ensuring that the reach of constitutional rights "does not vary with the state of mind of the particular individual," (27) but the emphasis should remain on the defendant's point of view.

    On the other hand, the Court has also suggested that these constitutional doctrines are really aimed at preventing the police from coercing defendants. This rationale--what I call the "coercion model"--suggests that these rules are designed to regulate police behavior and specifically to deter the police from using improperly coercive tactics. In that sense, they are indistinguishable from the deterrence-based Fourth Amendment and Sixth Amendment doctrines. Under this model, then, the focus should instead be on the police, again taking into account both subjective and objective considerations in the interest of maximizing deterrence.

    In short, while the Court has articulated various functions that each of the constitutional provisions governing police practices is meant to serve, its choice of perspective in its criminal procedure rulings has fluctuated widely in ways that undermine the interests it purports to be furthering. Until the Court takes the preliminary step of adopting a principled approach to the question of perspective, tied to the purpose underlying the particular constitutional guarantee it is interpreting, it cannot tackle the more difficult issues that surround the contemporary debate about the reasonable person standard. Simplistic decisions like Yarborough v. Alvarado are the inevitable result.



      Over the past several decades, the Supreme Court has identified deterrence as the primary interest served by the Fourth Amendment's prohibition of unreasonable searches and seizures. As the Court remarked succinctly in United States v. Leon, "[T]he exclusionary rule is designed to deter police misconduct." (28) Given that purpose, the Court has reasoned that the focus of Fourth Amendment jurisprudence should be on the objectively reasonable police officer. Again, to quote...

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