The Constitution and Criminal Procedure: First Principles.

• Author: Seidman, Louis Michael

The Constitution and Criminal Procedure: First Principles. By Akhil Reed Amar.(*) New Haven: Yale University Press, 1997. Pp. xi, 272. $35.00 (hbk.), $16.00 (pbk.).

Akhil Amar's new book on criminal procedure(1) is as important for the broad trend it reflects as for the many interesting ideas it contains.(2) Amar is a progressive who, in other works, has argued powerfully for more democratic and humane constitutional principles.(3) Yet in this book, he sharply attacks the progressive orthodoxy of criminal procedure. Amar allies himself with the opponents of the Fourth Amendment exclusionary rule and the warrant requirement. He argues against suppression of the "fruits" of incriminating, coerced statements and for a general reorientation of criminal procedure toward factual guilt and innocence. In short, although many of his ideas are idiosyncratic and resist ideological pigeonholing, one cannot miss the fact that he ends up enthusiastically embracing main elements of the conservative critique of criminal procedure liberalism.

Because Amar is among our most energetic and erudite constitutional scholars, his ideas are certain to receive wide attention. Because the ideas are interesting and powerfully presented, they deserve examination on their own terms. For reasons set out in Part II of this Review, it turns out that at least some of the ideas are at least somewhat oversold. I argue that there may be more to Warren Court reforms than is commonly acknowledged these days. Apart from the ideas themselves, however, the very fact that someone like Amar has written this book is also a fact of considerable significance. The book simultaneously symbolizes and helps propel the flood tide away from criminal procedure liberalism.

Even in its heyday, political support for the Warren Court revolution was fragile.(4) Today, it has more or less collapsed. Amar is hardly the only liberal academic who has gotten off the criminal procedure bandwagon,(5) and outside the academy, the trend is still more striking.(6) The recent "liberal" Clinton appointees to the Supreme Court seem as unfriendly to criminal procedure liberalism as their conservative colleagues,(7) and much of President Clinton's own success reflects his identification of the Democratic Party with the forces of "law and order."(8)

In short, this book is part of a significant movement that has produced a secular change in the politics of criminal procedure. Accordingly, its publication provides an occasion for reflection on why so many progressives of an earlier era embraced the Warren Court reforms in the first place, on why their vision has collapsed, and on what, if anything, deserves to be salvaged from the wreckage. These broader issues are addressed in Part In of this Review. Before turning to them, however, Professor Amar's specific proposals require analysis.

1. AMAR'S PROGRAM

   With characteristic energy and ebullience, Amar argues for wide-ranging reform. Although his proposals cover many different areas of criminal procedure, and although he advances a mix of arguments supporting them, they are united by two broader themes: a desire to reorient criminal procedure toward questions of factual guilt and innocence and a deep commitment, manifested in Amar's other work as well,(9) to notions of popular sovereignty.

   With respect to the Fourth Amendment, these themes are reflected in Amar's opposition to a per se warrant requirement and an exclusionary rule. Amar claims that the modern Court has turned the Warrant Clause on its head.(10) Whereas the Framers were fearful of warrants and wanted to restrict their use,(11) the Court has read the Fourth Amendment as if it required warrants in many cases.(12) Doubtless, this reading is motivated by the fact that the Warrant Clause seems to restrict searches in ways that would be rendered meaningless if police were not required to secure warrants in the first place. The Fourth Amendment's text provides that warrants can be issued only upon probable cause and only on the basis of an affidavit specifically describing the place to be searched and the persons or things to be seized.(13) These requirements would be nullities if the police could always avoid them by the simple expedient of searching and seizing without warrants. Why would the Framers impose requirements for warrants if they did not mean to require warrants?(14) The modern Court has solved the puzzle by reading the reasonableness standard, applicable to all searches, as if it required warrants for at least some of them.(15)

   Amar offers a different solution. He points out that at common law, warrants immunized government officials from damage suits. The Framers worried about this immunizing effect. They wanted to restrict, rather than encourage, the ex parte warrant procedure because they believed that, in general, the legality of searches should be determined by juries applying the Fourth Amendment's reasonableness standard. On this view, then, the problem addressed by the Fourth Amendment is not the police circumvention of warrants, but the police immunity from civil judgments that warrants afford.(16)

   Accordingly, Amar favors a return to the Fourth Amendment's text and to the original understanding. Police officers should not be required to get warrants and should not be required to demonstrate probable cause before they search and seize. Instead, searches and seizures should be judged according to the Fourth Amendment's "reasonableness" standard, with reasonableness determined primarily by juries adjudicating tort actions brought for damages.

   Amar's commitment to traditional tort remedies is also reflected in his opposition to the exclusionary rule. Amar argues that in many situations, the exclusionary rule requires the suppression of evidence, the discovery of which was not caused by the illegal activity. The exclusion of otherwise reliable evidence therefore gives guilty defendants a windfall, while doing nothing to compensate innocent victims of lawless police activity.(17) In contrast, a beefed-up system of civil remedies would compensate innocent victims who deserve compensation while also providing an optimal level of deterrence.(18)

   Amar's proposals for Fifth Amendment reform reflect a similar concern about guilt and innocence. On his view, the Self-Incrimination Clause(19) makes sense only as an effort to prevent wrongful conviction of the innocent.(20) Coerced self-incrimination is a problem because innocent people can be made to appear guilty if they are forced to testify in their own defense. Modern Fifth Amendment doctrine once again turns this concern on its head. On the one hand, the privilege sometimes leads to the conviction of the innocent when potential defense witnesses rely on their Fifth Amendment privilege to refuse to testify, thereby preventing defendants from presenting exculpatory evidence to the jury.(21) On the other hand. modern Fifth Amendment doctrine protects the guilty by excluding perfectly reliable evidence gained as the "fruit" of compelled statements.(22)

   In one of the most insightful moves in the book, Amar ties these Fifth Amendment difficulties to the scope of immunity currently accorded defendants whose statements are compelled. Under modern doctrine, a defendant is entitled to "use" and "derivative use" immunity.(23) The prosecution is not only precluded from using the compelled statements themselves; it is also prohibited from using evidentiary fruits of those statements, including physical evidence that is secured as the result of information conveyed by the defendant. Often, the derivative use restriction puts the prosecution in a difficult position: Once the defendant has made compelled statements, the prosecution may be unable to prove that its evidence derives from an independent source.(24)

   Amar's insight is that most of these problems in Fifth Amendment law can be resolved by abolishing derivative use immunity. Under his proposal, defendants would remain free to decline to testify at their own trials, and compelled pretrial statements would continue to be inadmissible. A defendant could be compelled to speak prior to trial, however, and the prosecution could use his statements to develop new leads, including physical evidence and additional witnesses, that could be presented at trial.(25) Therefore, abolition of derivative use immunity would continue to shield the innocent from being made to appear guilty when they take the stand. Moreover, it would eliminate the problem that sometimes prevents innocent defendants from calling witnesses who might vindicate them. Under current law, prosecutors have a legitimate reason for refusing to immunize these witnesses, because the immunization imposes on the prosecution the burden of proving that evidence they later develop against the witnesses was independent of their testimony at trial.(26) If derivative use immunity were abolished, prosecutors could no longer object to the immunization of defense witnesses because they would not lose any evidence that they would have had otherwise.

   Amar's proposal not only provides additional protection for the innocent, it also reduces the amount of undeserved protection for the guilty. There is no reason to doubt the reliability of physical or testimonial evidence gained as a result of a defendant's compelled statements.(27) The abolition of derivative use immunity would allow the prosecution to examine the defendant under oath in a controlled and civilized environment, with failure to cooperate subjecting the defendant to contempt sanctions. Although the defendant's statements themselves would remain inadmissible at trial, wholly reliable evidence developed through the defendant's testimony would be admissible.(28)

   In his penultimate chapter and appendix to the book, Amar presents a grab bag of proposals for reform of Sixth Amendment law,(29) including reforms designed to make the criminal jury a more viable...