Foreword.

• Author: Bonventre, Vincent Martin

It is not an accident.

In fact, it is deliberately built into our system.

More than that, it is an integral characteristic of our criminal justice.

That criminals go free, that is.

When the Supreme Court imposed the standard of proof beyond-a-reasonable-doubt as a due process mandate for all criminal prosecutions, it knew well what it was doing. In his concurring opinion in In re Winship, (1) Justice John Marshall Harlan II made clear the fundamental value inherent in our criminal law that dictated the Court's ruling: "lilt is far worse to convict an innocent man than to let a guilty man go free." (2) Beyond-a-reasonable-doubt reflects the basic choice to make the latter much easier, in order to make the former less likely.

In another fundamental due process mandate previously imposed, the Court prohibited convictions--regardless of how reliable--if based on evidence obtained through "brutal conduct." (3) Speaking for the Court in Rochin v. California, Justice Felix Frankfurter condemned convictions resting on evidence extracted through a method that "shocks the conscience"--even where, as there, the evidence removed any doubt about the defendant's guilt. (4)

Beyond that, even evidence obtained through tactics by no means brutal or shocking may doom a conviction. The exclusionary rule, applicable to every court, state or federal, since the Supreme Court's decision in Mapp v. Ohio, (5) renders reversible any conviction secured through evidence obtained through "unreasonable" searches or seizures. (6) The reliability of the evidence and the absence of any doubt about the guilt it proved are irrelevant. (7)

Many years earlier, Benjamin Cardozo had expressed his disapproval of the exclusionary rule. In People v. Defore, (8) Cardozo, then a Judge on the New York Court of Appeals, the State's highest court, distilled that rule as he viewed it: "[t]he criminal is to go free because the constable has blundered." (9)

Supporters of the rule have objected to Cardozo's formulation. But they do not challenge his assertion that criminals go free. They only insist that it is the Constitution itself that deserves the blame, or the credit.

More than half a century after Cardozo penned his opinion in Defore, Justice John Paul Stevens echoed what other vigorous enforcers of the rights of the accused have noted. Dissenting from the Supreme Court's adoption of the "good faith exception" to the exclusionary rule in United States v. Leon, (10) Stevens acknowledged that the rule "exerts a high price." (11) But, he added, it is a price "the Fourth Amendment requires us to pay." (12) Quoting then-retired Justice Potter Stewart, Stevens explained that the "extremely relevant evidence" of guilt that would be established under the rule "would not have been obtained had the police officer complied with the commands of the [F]ourth [A]mendment in the first place." (13)

Attribute the consequences to the rule or to the Constitution, it remains the same. Because of an unreasonable search or seizure, perfectly reliable proof of guilt is treated as never obtained, and convictions of the guilty are overturned.

Then there are the convictions based on illegally obtained confessions. Now, it has long been a basic command of constitutional due process that convictions may not be secured through physically extorted confessions. (14) Even before the Fifth Amendment's privilege against compulsory self-incrimination was made applicable to the states, (15) that earlier prohibition was extended to convictions that were predicated on confessions obtained through the "mental ordeal" (16) of "unrelenting interrogation." (17) JusticeFrankfurter explained why in Watts v. Indiana: "[o]urs is the accusatorial, as opposed to the inquisitorial system." (18)

As Justice Robert Jackson protested, however, in his separate opinion criticizing the Court's expanded notion of "involuntary" and, thus, prohibited confessions, "no one suggest[ed] that any course held promise of solution of these murders other than to take the suspect into custody for questioning." (19) "The alternative" he continued, "was to close the books on the crime and forget it, with the suspect at large." (20)

Perhaps even more troubling to Jackson was that the "brutal murders" involved in the three companion cases had been solved, the confessions were confirmed, the accused were convicted, and those indisputably reliable convictions were set aside. (21) Jackson's description vividly paints the cost--the...