The Failure of the Criminal Procedure Revolution.

• Author: White, Welsh S.

For criminal procedure aficionados, the 1960s were an exciting period. In almost every year of that decade, the Supreme Court handed down a landmark criminal procedure decision establishing new rights for criminal suspects. In 1961, for example, Mapp v. Ohio(1) held that the Fourth Amendment's exclusionary rule applies in state as well as federal criminal cases. Two years later, Gideon v. Wainwright(2) held that indigent criminal defendants are entitled to representation by counsel at trial. In 1966, Miranda v. Arizona(3) reshaped the law of police interrogation,(4) and a trilogy of cases decided in 1967(5) sought to improve the fairness of police identification procedures.(6) As Craig Bradley(7) explains in his engaging and provocative book, The Failure of the Criminal Procedure Revolution, by the time Chief Justice Warren left the Court in 1969, criminal procedure had entered a new era. In place of the old regime, under which only the Court's "shock the conscience" or "fundamental fairness" test checked the states' freedom to regulate criminal procedure,(8) the Supreme Court had established what Judge Henry Friendly critically characterized as a constitutional code of criminal procedure.(9)

Bradley provides an interesting and generally accurate account of the criminal procedure changes effected by the Warren Court. In evaluating the criminal procedure revolution, he observes that the Warren Court decisions resulted in salutary changes that subsequent Supreme Court decisions have not altered. Not only are criminal defendants afforded substantially greater protections at trial,(10) but also "police respect for constitutional rights has increased considerably" (p. 37). In support of the latter statement, Bradley observes with approval that police receive training in criminal procedure, prosecutors place pressure on the police to follow the law, and "[t]he 'third degree' seems to have largely disappeared from the American scene" (p. 37).

Nevertheless, Bradley claims that "the criminal procedure revolution has failed because it does not provide adequate guidance to police as to what to do" (pp. 37-38). Using interesting hypotheticals devised by himself and Professor Albert Alschuler (pp. 52-54), as well as statistical data (pp. 46-47), Bradley maintains that the Court's decisions on search and seizure and on confessions are virtually incomprehensible.(11) As a result, the Court's criminal procedure rules provide inadequate guidance to the police and result in "disturbingly high numbers of cases lost due to evidentiary exclusion" (p. 44).

In the remainder of his book, Bradley offers an explanation for this unfortunate state of affairs and several suggestions for correcting it. In a chapter that is particularly interesting because it draws from the firsthand knowledge he gained as a Supreme Court clerk,(12) Bradley asserts that the lack of clarity in our constitutional criminal procedure rules cannot be attributed to the ideological makeup of either the Warren or the Burger-Rehnquist Courts, but is instead an inevitable byproduct of the way the Court operates as an institution (p. 62).

In seeking a corrective device to address this problem, Bradley examines the experience of six other countries.(13) While he does not endorse the specific approaches of any of these countries, Bradley suggests that their experiences provide at least two valuable lessons. First, a discretionary exclusionary rule may be preferable to a mandatory one.(14) Second, a legislative body can more effectively provide criminal procedure rules than a court (p. 130). Bradley then presents his primary proposal for improving constitutional rules of criminal procedure: Congress should appoint a special commission to codify rules of criminal procedure. The task of this commission would be largely limited "to codifying and clarifying current Supreme Court law, and to making the rules more comprehensive, rather than substantially changing the law's ideological content" (p. 145).

Anyone who is interested in either criminal procedure or the Supreme Court should read this book. Bradley is a fluent writer who makes the issues he discusses vivid and interesting. Moreover, his analysis is never superficial or ideological. He has formulated a thoughtful proposal and provided a sophisticated analysis of the benefits and detriments of its implementation. Even those who disagree with Bradley's principal positions will be impressed by his insights and will gain a deeper understanding of our criminal justice system from his book.

I am one of those who disagree with Bradley's principal contentions. In this review, I will discuss several of his positions and my objections. Part I addresses Bradley's premise that the lack of clarity in the Court's criminal procedure decisions stems from the Court's limitations as an institution. While agreeing with Bradley that some of the Court's criminal procedure rules are hopelessly muddled, this Part challenges Bradley's claim that the Supreme Court could not have done any better. It asserts that the rules' lack of clarity stems more from the ideological differences between the Warren Court and its successors than from any inherent limitations of the Court. Part II addresses Bradley's suggestion that a discretionary exclusionary rule may be preferable to a mandatory one. While not disputing his claim that this approach works well in other countries, this Part maintains that it would not be efficacious in this country. Part III addresses Bradley's proposal that Congress empower a federal commission to enact a code of constitutional criminal procedure. For both theoretical and practical political reasons, this Part concludes that the proposed commission would not improve our system of justice. Finally, Part IV briefly addresses the question whether the Warren Court's criminal procedure revolution failed.

1. CLARITY IN CRIMINAL PROCEDURE

   What makes the rules of criminal procedure complicated? In many cases, the police precipitate the uncertainty by pushing for exceptions to a rule that seems clear. If the Court responds by establishing an exception, the police will interpret that exception, "apply [it] themselves and ... push [it] to the limit."(15) If in response the Court establishes further exceptions or broadens the existing one, the law is likely to become unclear.

   Miranda,(16) the Warren Court's landmark decision on confessions, may not be a model of clarity in every respect.(17) But the Court did seem clear in identifying the content of the warnings the police are required to give criminal suspects before subjecting them to custodial interrogation.(18) In response to Miranda, many police departments issued cards imprinted with the four specified warnings so that the police could read them to suspects.(19) Consistent with Miranda, one of the warnings invariably told suspects that they had the right to have an attorney present during police interrogation even if they could not afford to hire one.

   Police in Hammond, Indiana, added a phrase to this standard warning, however. After stating that the suspect had the right to the advice and presence of a lawyer even if he could not afford to pay for one, the warning continued, "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court."(20) This warning is arguably inconsistent with Miranda's requirement that the police inform the suspect that he will be provided with an attorney before any interrogation.(21) At best, it is confusing.(22) Nevertheless, in Duckworth v. Eagan,(23) the Court, in a 5-4 decision, held that the warning did not violate Miranda.

   Professor yale Kamisar has argued that because of the contradictory message contained in the Hammond, Indiana, warnings, Duckworth is inconsistent with Miranda.(24) I agree. My point, however, is not that Duckworth is wrong but that it creates an uncertain exception to a rule that prior to Duckworth appeared clear. Moreover, after Duckworth, what further exceptions are the police likely to seek? As Kamisar says, "Many new versions of the Miranda warnings are likely to emerge (and some once-disapproved formulations are likely to resurface)."(25) Duckworth sends the message to the police that the content of the required Miranda warnings is not nearly so inflexible as they may have thought. As a result, an area of the law that once seemed clear has become unclear.

   Many other post-Warren Court decisions have also obscured the meaning of Miranda.(26) To take another example, Miranda provided a seemingly clear rule governing a warned suspect's request for counsel: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."(27) In Edwards v. Arizona,(28) the Burger Court reaffirmed this rule but established an exception to it: once the suspect asserted his right to an attorney, the police would have to cease the interrogation until an attorney was made available to him "unless the accused himself initiate[d] further communications, exchanges, or conversations with the police."(29)

   On its face, the Edwards "initiation" exception to Miranda may not have seemed very significant. Taken in context, Edwards seemed to suggest that, once the accused invoked his right to an attorney, the police could not attempt further interrogation unless the accused on his own initiative indicated to the police that he had changed his mind and would prefer to discuss the criminal charges with the police without the presence of counsel. In Oregon v. Bradshaw,(30) however, the Court interpreted the "initiated further communications" exception much more broadly.

   In Bradshaw, the police gave the defendant his Miranda warnings and the defendant asserted his right to an attorney. The police then terminated the interrogation. A few minutes later, the defendant said, "Well, what is going to happen to me now?" After rewarning the defendant of his...