About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure.

Author:Maclin, Tracey
Position:Book review



To listen to those who teach and study American constitutional criminal procedure, the Supreme Court's jurisprudence in this field is a mess. Scholars from different political perspectives share the view that the Court's criminal procedure rulings are often inconsistent, out of touch with the real world of law enforcement needs, and unduly protect the rights of guilty defendants without enhancing the freedom and liberty of innocent persons. (3) This complaint is not confined to law professors who are unburdened by the responsibility of deciding cases and writing opinions that are consistent with precedents that are decades old. Justice Scalia, a member of the Court for almost twenty years, has on more than a few occasions (usually in dissenting or concurring opinions) criticized his colleagues for issuing rulings that contradict earlier cases, or are devoid of principled reasoning and common sense. (4)

Professor Donald Dripps shares the view that the law of criminal procedure "is in disarray" and "highly dysfunctional" (p. xiii). (5) Dripps believes that the Supreme Court's "legal doctrine is in large measure responsible for the failure of the criminal-procedure revolution," and contends that "current doctrine does not reflect prevailing (and justified) values about the criminal process" (p. xiv). To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure is a comprehensive and thoughtful critique of the Court's criminal procedure jurisprudence. While Dripps surveys the entire field of constitutional criminal procedure, the book pays close attention to the Court's Fourth, Fifth and Sixth Amendment cases. Topics such as search and seizure, the exclusionary rule, police interrogation and the right to counsel receive scrupulous analysis by Dripps.

This book is not casual or beach reading. Dripps' legal analysis is meticulously researched. Parts of the book discuss constitutional law cases and theories that are rarely taught (or even mentioned) in a standard criminal procedure course. A firm knowledge of constitutional law is essential to understand many of Dripps' arguments. (6) Although the book is intellectually rigorous, it is not a book that should be confined to the bookshelves of law professors. The Justices of the Supreme Court should read this book. The issues discussed by Dripps are addressed by judges--both federal and state--on a regular basis. Moreover, the impact and meaning of many of the rulings discussed in the book--Terrgy v. Ohio, (7) Miranda v. Arizona s and Strickland v. Washington (9)--remain highly controversial among the judiciary and its observers. When addressing these controversies, Dripps offers a fair and balanced presentation of the opposing legal and policy choices confronting the Court. To be sure, Dripps has specific (and pointed) opinions about the Court's jurisprudence. But he does not let his own views stand in the way of educating his readers.

My review will proceed as follows. Part I provides a general overview of Dripps' book. Dripps discusses so many cases and topics that a fair and detailed review of the book's various aspects and premises would go beyond the scope of this project. Therefore, Part I simply highlights Dripps' core arguments. Part II, in contrast, is a detailed discussion of Dripps' analysis of the Court's confession cases. This part also includes a description of Dripps' proposal to regulate police interrogation and my critique of his proposal.



    About Guilt and Innocence discusses a wide range of criminal procedure issues and several hundred judicial decisions. Although Dripps directs most of his analysis on the Court's Fourth, Fifth and Sixth Amendment rulings, this focus is dictated as much by the Court as it is by Dripps himself. Fourth, Fifth and Sixth Amendment cases remain a staple of the Court's docket and these are the cases taught in the standard criminal procedure course in American law schools. (10)

    The book is organized in seven chapters. The first chapter is entitled "Constitutional Criminal Procedure from the Adoption of the Fourteenth Amendment to 1947: The Strange Career of Fundamental Fairness." As the title indicates, this chapter introduces the reader to the Court's initial venture into constitutional criminal procedure in the wake of the Civil War and the Reconstruction Amendments. In 1884, in Hurtado v. California, the Court adopted a fundamental fairness test to determine whether state criminal procedures satisfied the demands of the Fourteenth Amendment's Due Process Clause. (11) The specific issue in Hurtado was whether due process required a grand jury indictment to initiate a state murder criminal charge, as is required by the Fifth Amendment's Grand Jury Clause in federal prosecutions. The Hurtado Court held that an ex parte information satisfied due process requirements. Due process, according to Hurtado, only required those "fundamental principles of liberty and justice which lie at the base of all our civil political institutions." (12) And due process emphasizes the "substance" of fundamental rules of law, rather than the "forms and modes of attainment" dictated by the law. (13)

    Dripps asserts that Hurtado's embrace of substantive due process was a momentous mistake. He contends that an "instrumental theory of procedural due process offers the most appropriate doctrinal premise for constitutional criminal procedure" (p. 3). While arguing that substantive due process was the wrong tool to use in order to judge the constitutional validity of state criminal procedures, Dripps explains that a substantive due process model did not pose practical obstacles to state police investigations or trial procedures. "Quite the contrary, until 1923, the Court did not reverse a state criminal conviction because of a due process violation" (p. 15). As Dripps recognizes, the Court's consistent refusal to overturn state criminal convictions did not necessarily reflect a lack of nerve by the Court. This was the period better known by lawyers and law students as the Lochner era, (14) in which the Court "engaged in the frequent and capricious nullification of state economic regulations on substantive due process grounds" (p. 15). This was also the same period when the Court "took a noticeably pro-defense approach to federal criminal cases" (p. 15).

    According to Dripps, the Lochner-era Court's activist stance in federal criminal cases and economic regulation cases, but refusal to overturn state criminal convictions "was neither unprincipled nor disingenuous" (p. 20). Rather, "[t]he guiding principle under the Fourteenth Amendment due process clause was constitutional withdrawal of state power to impair fundamental liberties. The judicial refusal to intervene in state criminal procedure reflected a sincere belief that in criminal cases, procedural protections, except of the most basic sort, are not fundamental, as are the rights to hold private property and enter into contracts" (p. 20).

    A subtle shift occurred between 1923 and 1947 when, in Dripps' view, the Court expanded the constitutional rights of the accused. "During this period, the cases in which the Court reversed state convictions on due process grounds involved either grave doubts about the reliability of the trial verdict, or the oppressive abuse of official power in obtaining evidence against the accused" (p. 23). But this period was not the start of a "criminal procedure revolution." Instead, the Court's rulings were confined to reversing especially disturbing state convictions. "The Court made no effort to reach beyond the case to be decided, no attempt to reform state criminal justice in any general way" (p. 23).

    Chapter Two of the book outlines the Court's initial reluctance to apply the Bill of Rights' procedural safeguards to the states' criminal justice procedures. The start of the chapter has a lengthy and scholarly discussion on the adoption and ratification of the Fourteenth Amendment, with a special focus on whether the amendment intended to apply the Bill of Rights to the states. In this section, Dripps considers debates in Congress, as well as the work and arguments of nineteenth century jurists, lawyers and legal academics. Like many scholars before him, Dripps is skeptical of the claim that the Fourteenth Amendment makes the Bill of Rights binding on the states. He notes that the ratification process "apparently never considered the incorporation question" (p. 33). Dripps' research also reveals that lawyers and judges in the post-Reconstruction period "recoiled from equating the Bill of Rights criminal-procedure provisions with 'privileges or immunities' or with 'due process'" (p. 34). The most that can be said in favor of the total incorporation theory is that it "has not been disproved or refuted" (p. 34). In Dripps' view, it is "fair to say that the thesis that a majority of those involved in framing and ratifying the Fourteenth Amendment intended to apply the Bill of Rights to the states has not been proved and seems on the whole very doubtful" (p. 34).

    Putting aside the intent of the Fourteenth Amendment's framers, Dripps explains that by the start of the 1960's, the Court had not yet embraced incorporation theory as a remedy for the problems some saw in the states' criminal justice systems. Although Wolf v. Colorado ruled in 1948 that the Fourth Amendment was a fundamental...

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