Introduction to Criminal Procedure

Part 1 INTRODUCTION

Chapter 1 Introduction to Criminal Procedure Chapter 2 Remedies

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize the constitutional basis for criminal procedure. � Explain the importance of precedent. � Compare the theory of criminal procedure to the reality. � Describe the public order (crime control) and individual rights (due process) perspectives of criminal

justice and how criminal procedure balances the two. � Outline the structure of the court system, including the responsibilities and jurisdictions of each level. � Summarize important issues and trends in criminal procedure. � Provide an overview of the criminal process.

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CHAPTER OUTLINE

Introduction to Criminal Procedure

C H

A P

T E

OUTLINE

Introduction: What Is Criminal Procedure? Emphasis on Constitutional Rights

Sources of Rights Rights of Relevance in Criminal Procedure The Incorporation Controversy

Significance of the Debate Views on Incorporation Outcome of the Debate

The Importance of Precedent Stare Decisis Distinguishing Cases

Theory versus Reality Competing Concerns in Criminal

Procedure Due Process

The Obstacle Course Quality over Quantity Insistence on Formality Faith in the Courts

Crime Control The Assembly Line Quantity over Quality Insistence on Informality Faith in the Police

Finding Court Cases and Tracing Their Progress Finding Cases Tracing the Progress of a Criminal Case How Cases Arrive at the Supreme Court

Important Issues and Trends in Criminal Procedure

Bright-Line Decisions versus Case-by-Case Adjudication

Subjectivity versus Objectivity Increased Faith in the Police Judicial Restraint Personal Privacy Criminal Procedure and the War

on Terror Criminal Procedure and Technology

The Criminal Process: An Overview Pretrial Adjudication Beyond Conviction

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

What Is Criminal Procedure?

American criminal procedure consists of a vast set of rules and guidelines that describe how suspected and accused criminals are to be handled and processed by the justice system. Of great significance is the relationship between the police and the people suspected of criminal activity. Criminal procedure arms the police with the knowledge necessary to preserve the rights of individuals who are seized, searched,

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4 Part 1 • Introduction

arrested, and otherwise inconvenienced by law enforcement officials. It also arms other actors—such as judges, prosecutors, and defense attorneys—with the necessary information to preserve the rights of individuals accused of criminal activity. In short, criminal procedure begins when the police first contact a person and ends well after his or her conviction.

At least three important themes run throughout criminal procedure. First, there is a concern with the constitutional rights of accused persons, as interpreted by the courts. People enjoy a number of important rights in the United States, but the bulk of criminal procedure consists of constitutional procedure or what the U.S. Constitution says—usually through the interpretation of the U.S. Supreme Court (i.e., the Court)— with regard to the treatment of criminal suspects.

Second, criminal procedure contains an important historical dimension, one that defers regularly to how sensitive legal issues have been approached in the past. The role of precedent, or past decisions by the courts, cannot be overemphasized. At the same time, though, the world continues to evolve, and it is sometimes necessary to part ways with the past and decide novel legal issues.

Third, criminal procedure creates something of a collision between two different worlds: the world of the courts versus that of law enforcement. What the courts require and what law enforcement actually deals with do not always harmonize. That is, in the real world, the influence of the courts may not always be as significant or relevant as might be expected. The following subsections will elaborate more fully on the importance of these three themes.

EMPHASIS ON CONSTITUTIONAL RIGHTS

The Preamble to the U.S. Constitution states,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Of particular relevance to criminal procedure are the terms justice and liberty. The Constitution helps ensure these through both setting forth the various roles of government and protecting the rights of people within the nation’s borders. Throughout the years, the courts have devoted a great amount of energy to interpret- ing the Constitution and to specifying what rights are important and when they apply.

However, the Constitution is not the only source of rights; there are others worthy of consideration. In addition, some rights are more important than others, at least as far as criminal procedure is concerned. Finally, the two-tiered system of government in the United States creates a unique relationship between the federal and state levels. Criminal procedure cannot be understood without attention to the interplay between federal and states’ rights.

Sources of Rights

In addition to the Constitution, important sources of rights include court decisions, statutes, and state constitutions. Most of the court decisions discussed in this section and throughout the text are U.S. Supreme Court decisions.

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Whenever the Supreme Court interprets the Constitution, it effectively makes an announcement concerning people’s rights. For example, the Fourth Amendment states that unreasonable searches and seizures are impermissible. The term unreasonable is not self-explanatory, however, so the Court has taken steps to define it. One definition of unreasonable appears in the recent decision of Wilson v. Layne (526 U.S. 603 [1999]), in which the Court held that it is unreasonable for the police to bring reporters along when serving a warrant, unless the reporters are there to serve a legitimate law enforcement objective.

Although the Constitution and the court decisions stemming from it reign supreme in criminal procedure, statutes also play an important role. Obviously, the Constitution and the courts cannot be expected to protect all of the interests that people represent. Statutes attempt to compensate for that shortcoming by establishing that certain rights exist. An example is Title VII of the 1964 Civil Rights Act. Among other things, it prohibits discrimination in employment. Another statute of relevance in criminal procedure (one that will be considered in some depth in Chapter 2) is 42 U.S.C. Section 1983. It allows private citizens to sue local law enforcement officials for violations of federally protected rights.

In addition, each state has its own constitution, which can be considered an important source of rights. The supremacy clause of Article VI to the U.S. Constitution makes it the supreme law of the land and binds all states and the federal government to it. However, nothing in the U.S. Constitution precludes individual states from adopting stricter interpretations of the federal provisions. In general, if a state constitution gives less protection than the federal Constitution, such a limitation is unconstitutional. But a stricter interpretation of the federal Constitution is perfectly reasonable. For example, the Supreme Court has interpreted the Fifth Amendment in such a way that it requires police to advise a suspect of his or her so-called Miranda rights when the suspect is subjected to custodial interrogation—an action that does not necessarily rise to the level of an arrest. A state, however, could require that Miranda rights be read whenever a person is arrested, regardless of whether he or she is interrogated.

Finally, although it is not a source of rights per se, the Federal Rules of Criminal Procedure are worth considering.1 Excerpts from the Federal Rules are reprinted through- out this book because they sometimes clarify important rulings handed down by the U.S. Supreme Court. Additionally, the Federal Rules set forth the criminal procedure guidelines by which federal criminal justice practitioners are required to abide.

Rights of Relevance in Criminal Procedure

Of the many rights specified in the U.S. Constitution (which, incidentally, is reprinted in the Appendix), the rights stemming from five amendments are of special importance in criminal procedure. Four of these—the Fourth, Fifth, Sixth, and Eighth Amendments— can be found in the Bill of Rights. Beyond the Bill of Rights, the Fourteenth Amendment is of special relevance in criminal procedure. Sometimes the First Amendment, which protects individual rights to assembly and speech, and the Second Amendment, which protects the right to bear arms, are relevant in criminal procedure, but only rarely.

• The Fourth Amendment is perhaps the most well known source of rights in criminal procedure. In fact, it is viewed to be so important that several books on criminal procedure devote the overwhelming majority of their chapters to it. The Fourth Amendment states,

1 Federal Rules of Criminal Procedure, issued by the 107th Congress, First Session, December 1, 2001. Available online: www.house.gov/judiciary/crim2001.pdf.

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

Several rights can be distinguished by reading the text of the Fourth Amendment. It refers to the right of people to be free from unreasonable searches and seizures, and it provides that specific requirements are to guide the warrant process. That is, a warrant must be issued by a magistrate or judge, supported by probable cause, and sufficiently specific as to what is to be searched and/or seized. Because of the complexity of the Fourth Amendment, this book devotes an entire section to its interpretation (see Part 2).

• The second constitutional amendment of special relevance to criminal procedure is the Fifth Amendment. It states,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This book also examines the Fifth Amendment in detail, focusing in particular on the role of the grand jury, the statement that no person shall be “twice put in jeopardy of life or limb” (known as the double-jeopardy clause), the statement that no one can be compelled “to be a witness against himself” (also known as the self-incrimination clause), and perhaps most important of all, the requirement that an individual cannot be deprived of life, liberty, or property without due process of law.

• The Sixth Amendment is also of great importance in criminal procedure. It specifies,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Of relevance to criminal procedure is the Sixth Amendment’s language concern- ing speedy and public trials, impartial juries, confrontation, and compulsory process. The Sixth Amendment also suggests that in addition to being public, trials should be open, not closed, proceedings. The Supreme Court has interpreted the Sixth Amendment as providing the right of the accused to be present at his or her trial and to be able to put on a defense.

6 Part 1 • Introduction

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Chapter 1 • Introduction to Criminal Procedure 7

• The Eighth Amendment is relevant in criminal procedure but to a limited extent. It states,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment’s language on bail and the nature of cruel and unusual punishment are addressed in Chapters 10 and 15, respectively.

• The Fourteenth Amendment has an important home in criminal procedure. It is a fairly long amendment, however, and only a small portion is relevant to the handling and treatment of criminal suspects. That portion states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The due process language of the Fourteenth Amendment mirrors that of the Fifth. Nonetheless, because the Fifth Amendment is part of the Bill of Rights, it is only binding on the federal government. The Fourteenth Amendment, by contrast, has been used by the Supreme Court to incorporate, or make applicable to the states, several of the rights provided for in the Bill of Rights. (The following subsection introduces the so-called incorporation controversy.)

The Fourteenth Amendment’s due process clause has been interpreted to consist of two types of due process: (1) substantive due process and (2) procedural due process. The essence of substantive due process is protection from arbitrary and unreasonable action on the part of state officials. By contrast, a procedural due process violation is one in which a violation of a significant life, liberty, or property interest occurs (e.g., Geddes v. Northwest Missouri State College, 49 F.3d 426 [8th Cir. 1995]). Procedural due process is akin to procedural fairness.

Summary. Figure 1.1 lists the constitutional amendments that are of particular importance in criminal procedure. As the following section will describe, certain rights that are provided for in each amendment may not be binding on the states. Also, even though a particular amendment may provide a particular right, the Supreme Court may have interpreted that amendment to apply only in certain circumstances. Such circumstances will be discussed throughout the text.

The Incorporation Controversy

The Bill of Rights, consisting of the first 10 amendments to the U.S. Constitution, places limitations on the powers of the federal government. It does not limit the power of the states, however. In other words, the first 10 amendments place no limitations on state and local governments and their agencies. Government power at the state and local levels is clearly limited by state constitutions.

Even though the Bill of Rights does not limit state and local governments, the Supreme Court has found a way to do so through the Fourteenth Amendment. In particular, the Court has used the Fourteenth Amendment’s due process clause,

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which holds that no state shall “deprive any person of life, liberty, or property, without due process of law,” to make certain protections specified in the Bill of Rights applicable to the states. This is known as incorporation.

The extent to which the Fourteenth Amendment should regulate state and local government power has been the subject of some disagreement—hence, the incorporation controversy. The basic question posed over the years has been, To what degree should the Fourteenth Amendment’s due process clause incorporate the various provisions of the Bill of Rights so as to restrict state and local law enforcement in the same way federal law enforcement is restricted by the Bill of Rights?

SIGNIFICANCE OF THE DEBATE The incorporation debate is significant because of three concerns. First, since most contact between citizens and the police occurs at the state and local levels, it is critical to determine the role of the federal Constitution at the state level. Comparatively few people have contact with federal law enforce- ment, so the Bill of Rights actually regulates a limited number of police/citizen contacts. Second, incorporation, according to some, threatens federalism. Under the doctrine of federalism, states have the authority to develop their own rules and laws of criminal procedure, but if the Fourteenth Amendment incorporates the Bill of Rights, this authority can be compromised. Third, the incorporation debate raises important concerns about the separation of powers. Namely, the Supreme Court has decided which rights should be incorporated—a decision that may better be reserved for Congress.

FIGURE 1.1 Constitutional Amendments Important to Criminal Procedure and Their Relevant Provisions

• Fourth Amendment: Protects from unreasonable searches and seizures. • Fifth Amendment: Provides protection from double jeopardy and self-incrimination

and for grand jury indictment in serious crimes. • Sixth Amendment: Provides for a speedy and public trial, impartial jury, con-

frontation, compulsory process, and assistance of counsel. • Eighth Amendment: Protects from cruel and unusual punishment. • Fourteenth Amendment: Includes the so-called due process clause, which has

been used to incorporate various other rights described in the Bill of Rights.

DECISION-MAKING EXERCISE 1.1

The First Amendment and Criminal Procedure

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Given what you have read so far, is the First Amendment relevant to criminal procedure?

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Chapter 1 • Introduction to Criminal Procedure 9

VIEWS ON INCORPORATION There are four leading views on the incorporation debate.2

One has won out over the others, but all of the views are important to consider, regardless.

• The total incorporation perspective holds that the Fourteenth Amendment’s due process clause incorporates the entire Bill of Rights. In other words, all protections specified in the Bill of Rights should be binding on the states. The primary proponent of this view was Supreme Court Justice Hugo Black (e.g., Adamson v. California, 332 U.S. 46 [1947]; Rochin v. California, 342 U.S. 165 [1952]).

• The second leading view on incorporation is that of selective incorporation, or the fundamental rights perspective. It favors incorporation of certain protections enumerated in the Bill of Rights, not all of them. Further, this perspective deems certain rights as being more critical, or fundamental, than others. The Supreme Court’s decision in Snyder v. Massachusetts (291 U.S. 97 [1934]) advocates this perspective, arguing that the due process clause prohibits state encroachment on those “principle[s] of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.”

• The third view on incorporation can be termed total incorporation plus. This view holds that the Fourteenth Amendment’s due process clause incorporates the whole Bill of Rights as well as additional rights not specified in the Constitution, such as the “right to privacy.” This view can be found in such Supreme Court cases as Adamson v. California and Poe v. Ullman (367 U.S. 497 [1961]).

• Finally, some people believe that the topic of incorporation deserves case-by-case consideration. That is, no rights should be incorporated across the board. Rather, the facts and circumstances of each individual case should be weighed in order to determine if any protections listed in the Bill of Rights should apply at the state or local level.

OUTCOME OF THE DEBATE So, Which perspective has won out? Arguably, the selective incorporation, or the fundamental rights, perspective is the winner. The Supreme Court has consistently held that some protections listed in the Bill of Rights are more applicable to the states than others. The Fourth Amendment, in its view, lists several fundamental rights. By contrast, the Fifth Amendment’s grand jury clause has not been deemed fundamental and is not binding on the states (Hurtado v. California, 110 U.S. 516 [1884]).

To an extent, part of the total-incorporation-plus perspective has won out, as well. While not all of the Bill of Rights is binding on the states, the Supreme Court has repeatedly emphasized Americans have a fundamental right to privacy. This is despite the fact that the Constitution makes no mention of privacy. It is commonly said (as will be noted in the section on the Fourth Amendment) that people do not enjoy an expectation of privacy in public places. It would seem, then, that certain rights not listed in the Constitution have been identified as well as incorporated.

Figure 1.2 lists the rights that have been deemed fundamental by the Supreme Court and, as a result, incorporated to the states.3 The Supreme Court cases responsible for these incorporation decisions are listed, as well.

2 J. Dressler, Law Outlines: Criminal Procedure (Santa Monica, CA: Casenotes Publishing, 1997), pp. 2-3–2-4. 3 Some scholars believe that the Ninth Amendment to the U.S. Constitution (also referred to as the penumbra clause) implies that all of the rights not specifically spelled out in the Constitution are automatically protected nonetheless. But to demonstrate this, a court would have to recognize a particular right as fundamental in case law. Privacy could be considered one such right.

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THE IMPORTANCE OF PRECEDENT

To many students of criminal procedure, legal research is a less than desirable pursuit. Even so, it is essential in everyday practice because of the importance of precedent. A precedent is a rule of case law (i.e., a decision by a court) that is binding on all lower courts and the court that issued it. A past decision may not be available in each case, but when one is, the courts will defer to it. This is the doctrine of stare decisis.

Stare Decisis

Stare decisis is a Latin term that means to abide by or to adhere to decided cases. Most courts adhere to the principle of stare decisis. That is, when a court has handed down a decision on a specific set of facts or legal questions, future court decisions that involve similar facts or questions will defer to the previous decision. In short, stare decisis is simply the practice of adhering to a previous decision or precedent.

Why does stare decisis occupy such an important position in the U.S. court system? The answer is that it promotes consistency. It is well known that accused criminals enjoy the right to counsel (Gideon v. Wainwright, 372 U.S. 335 [1963]), but what if from one year to the next, the Supreme Court vacillated on whether this right were constitu- tionally guaranteed? The criminal process, not to mention the rights of the accused, would be unpredictable and vary from one point to the next.

It is important to note that the practice of deferring to precedent is not always possible or desirable. First, stare decisis is usually only practiced by courts in a single jurisdiction. Suppose, for example, that a federal circuit appeals court handed down a decision. All the district courts within that circuit would then abide by the appeals court decision. Courts outside that circuit would not be bound to adhere to the decision

FIGURE 1.2 Rights Incorporated to the States

Right Deciding Case

First Amendment freedom of religion, speech, and assembly and the right to petition for redress of grievances

Fiske v. Kansas, 274 U.S. 380 (1927)

Fourth Amendment prohibition of unreasonable searches and seizures Wolf v. Colorado, 338 U.S. 25 (1949) Fifth Amendment protection against compelled self-incrimination Malloy v. Hogan, 378 U.S. 1 (1964) Fifth Amendment protection from double jeopardy Benton v. Maryland, 395 U.S. 784

(1969) Sixth Amendment right to counsel Gideon v. Wainwright, 372 U.S.

335 (1963) Sixth Amendment right to a speedy trial Klopfer v. North Carolina, 386 U.S.

213 (1967) Sixth Amendment right to a public trial In re Oliver, 333 U.S. 257 (1948) Sixth Amendment right to confrontation Pointer v. Texas, 380 U.S. 400 (1965) Sixth Amendment right to an impartial jury Duncan v. Louisiana, 391 U.S.

145 (1968) Sixth Amendment right to compulsory process Washington v. Texas, 388 U.S.

14 (1967) Eighth Amendment prohibition of cruel and unusual punishment Robinson v. California, 370 U.S.

660 (1962)

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(although some courts often do as a matter of professional courtesy). Perhaps more important, if a case coming before a court is unique and does not resemble one decided in the past, the court may distinguish it.

Distinguishing Cases

When a previous decision does not apply to the current facts, a court will distinguish the case, saying, in effect, that this case is different and cannot be decided by looking to past rulings. Another way of understanding what it means to distinguish a case is to think of the present set of facts as unique and never before considered by an appellate court.

Since only a handful of cases make it to the appellate level, and even fewer still arrive at the Supreme Court, there is an untold number of cases waiting to be distinguished. This is a critical point. The case law in place currently addresses only a minute quantity of possible constitutional questions. Countless contacts occur between the police and citizens, and several of them may give rise to important constitutional questions. Yet they may never see the inside of a courtroom. So, while this book may appear heavy on case law, a thorough understanding of criminal procedure would require a review of the nearly infinite possible factual circumstances that could arise in the criminal process.

An example of a case that was distinguished is Terry v. Ohio (392 U.S. 1 [1968]). In that case, the Supreme Court held that police officers can stop and frisk suspects with reasonable suspicion, not probable cause (the latter standard appearing in the text of the Fourth Amendment). The Court felt that a stop-and-frisk is different from a search or a seizure and, as such, should be governed by a different set of standards. Had the Supreme Court not decided Terry, or any case like it, stop-and-frisk encounters would probably still be considered seizures and therefore subject to the Fourth Amendment’s requirement for probable cause. Terry will be considered in more detail later, as will many other distinguished cases.

In nearly every class on criminal procedure, students ask, “What if . . . ?” The “what-if” question reflects a concern over possible factual circumstances not already addressed in published court decisions. In order for a “what-if” question to be answered, a court decision must result. Otherwise, the best approach to answering such a question is to look to the past and find a decision that closely resembles the hypothetical scenario. In this vein, every case discussed throughout this text should be thought of as a distinguished case. Every decision was based on a different set of factual circumstances and was deemed by the reviewing court as worthy of being distinguished. Were it not for distinguished cases, criminal procedure case law could be adequately covered in a matter of minutes, even seconds.

THEORY VERSUS REALITY

Criminal procedure consists mostly of rules and guidelines that have been handed down by the courts so as to dictate how the criminal process should play out. As already mentioned, many of these rules and guidelines have come from the U.S. Supreme Court, which has decided on thousands of occasions how the Constitution should be inter- preted. However, in some circumstances, court decisions may not really have a great deal of influence. That is, some court decisions are made in the theory world, which is somewhat disconnected from the day-to-day operations of law enforcement. In contrast, the police occupy a position that is very definitely in the real world. Understandably, there can be differences, even tensions, between the worlds of theory and reality.

The fact that theory and reality may differ is a subject that receives little direct attention in criminal procedure textbooks. Indeed, that certain Supreme Court decisions may not really matter, or might even be flatly ignored, is a controversial notion, to say

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the least. Americans are taught that the courts—and the Supreme Court, in particular— are charged with interpreting the Constitution and the laws of the United States. They are further taught that law enforcement should accept such interpretations uncritically and without much reflection. While this is mostly true, theory and reality can still differ for at least four reasons.

• First, the Supreme Court sometimes makes decisions on excruciatingly detailed mat- ters that have almost no applicability to most law enforcement officers most of the time. A good example is the Supreme Court’s recent decision in Atwater v. City of Lago Vista (533 U.S. 924 [2001]), a case that will be considered more fully later. (See Chapter 5 on warrantless searches and seizures.) The Court decided that the Fourth Amendment does not prohibit the police from arresting people for seat-belt viola- tions. On one level, this decision seems significant, but how many police officers are now going to arrest people for seat-belt violations? Probably very few police will take up this cause because they usually have more important matters to address.

• Second, the Supreme Court frequently hands down restrictive decisions that would seem to have dramatic effects on the nature of law enforcement but that actually involve issues already being addressed by many police agencies. For example, the Supreme Court’s decision in Tennessee v. Garner (471 U.S. 1 [1985]) made it a violation of the Fourth Amendment for the police to use deadly force to apprehend an unarmed and nondangerous fleeing felon. However, prior to Garner, many police agencies had already adopted restrictive deadly force policies—policies that, in many instances, were more restrictive than what was handed down in Garner. Police agency policy, therefore, can differ from, and even be more restrictive than, decisions reached by the Supreme Court. To illustrate this, several excerpts from police agency manuals and guidelines are reprinted throughout subsequent chapters.

• The third reason for the theory/reality dichotomy is that the courts sometimes hand down decisions that can be effectively circumvented or ignored by the police. Clearly, it is not in the best interest of law enforcement to ignore the courts, and it is probably quite rare that the police do so, but it can be done. For example, in Kyllo v. United States (533 U.S. 27 [2001]), the Supreme Court held that a search occurs when the police to scan a private residence with an infrared thermal imager without first obtaining a warrant. The consequence of conducting such a scan without a warrant is that any evidence subsequently obtained will not be admissible in court. However, in reality, what is to prevent the police from scanning someone’s house if there is no intent to secure evidence?

• Finally, what the courts say and the police do can differ simply as a consequence of the U.S. legal system. It is well known, for example, that a police officer cannot stop a motorist without some level of justification. On how many occasions, though, are motorists stopped without justification? That is, how many people are pulled over every day simply because a police officer is suspicious of them? This cannot be

DECISION-MAKING EXERCISE 1.2

Traditional Legal Doctrine Meets High-Tech Crime

In Katz v. United States (389 U.S. 347 [1967]), the Supreme Court decided that searches occur when a government actor infringes on a person’s reasonable expectation of pri- vacy. Assume federal agents have a trained drug dog sniff

passengers’ luggage on a baggage carousel in an airport. Does this constitute a search? Is Katz equipped to deal with a situation such as this, or is the situation such that it calls for a distinguished case?

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established for certain, but it does happen. It can happen because the legal system cannot do much to prevent it. Someone who is wrongfully stopped can file a complaint, but research shows that many such complaints are resolved in favor of the police.4 A lawsuit can be filed, but as will be noted in Chapter 2, such suits rarely are successful. And if nothing worthy of arresting the motorist is discovered, then it is doubtful that the illegal stop will draw attention in court.

In fairness to the law enforcement community, it is not the case that the police (or other criminal justice officials) regularly trample people’s constitutional rights. Most law enforcement officials are responsible, professional, and upstanding enforcers of the law, as are most judges and prosecutors. But the fact cannot be ignored that the reality of everyday law enforcement and the somewhat distant nature of certain court decisions do not always meet. It is for this reason that distinctions between theory and reality are pointed out throughout later chapters. Police department policy manual excerpts also appear throughout the book. They help bridge the gap between theory and reality by illustrating the procedures law enforcement officials must follow in addition to those laid out by the Supreme Court.

COMPETING CONCERNS IN CRIMINAL PROCEDURE

Criminal procedure is an exciting topic because of the inherent tension it creates between two competing sets of priorities. On the one hand, there is a serious interest in the United States in controlling crime, with some Americans advocating doing whatever it takes to keep criminals off the streets. On the other hand, because of their country’s democratic system of government, Americans value people’s rights and become angry when those rights are compromised or threatened. These two competing sets of values have been described by Herbert Packer as the crime control and due process perspectives.5

The values each opposing perspective subscribes to are probably familiar to many readers because the due process/crime control debate invariably pops up all through- out criminal justice. Almost without exception, whenever there is disagreement as to how best to approach the crime problem—be it through court decisions or legislative measures—the due process/crime control distinction rears its head. A delicate balance has to be achieved between the two perspectives.

The due process perspective closely resembles a liberal political orientation. Liberals often favor protection of people’s rights and liberties to a higher degree than

4 For an informative review, see J. L. Worrall, “If You Build It, They Will Come: Consequences of Improved Citizen Complaint Review Procedures,” Crime and Delinquency 48 (2002): 355–379.

DECISION-MAKING EXERCISE 1.3

Theory and Reality Collide

In Miranda v. Arizona (384 U.S. 436 [1966]), the U.S. Supreme Court decided that the police must advise suspects who are custodially interrogated of their Fifth Amendment privilege against self-incrimination. This case will be revisited in great detail later in the book, but for now, it illustrates that (1) custody occurs when a reasonable person would

believe the suspect is not free to leave (an arrest being a prime example of such action) and (2) interrogation refers to actions by the police that are reasonably likely to elicit a response from the suspect. Assume that the police arrest a man but do not interrogate him. Assume further that the man confesses to a crime. Does Miranda apply?

5 H. L. Packer, The Limits of the Criminal Sanction (Palo Alto, CA: Stanford University Press, 1968).

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their conservative counterparts. By contrast, the crime control perspective is the one most frequently subscribed to by conservative law-and-order types.

Of course, in reality, there can be a great deal of overlap between the two orientations. Liberals occasionally favor conservative crime control policies, and conservatives can be concerned with protecting the rights of American citizens. That is to say, although the two groups frequently stand in stark contrast to each other, they do sometimes meet in the middle. Regardless, the values espoused by each group—be it an interest in crime control, an interest in civil rights, or an interest in both—are here to stay. Given that, it is useful to consider each perspective in more detail, focusing special attention on the implications for criminal procedure.

Due Process

Packer’s due process perspective is, first and foremost, concerned with people’s rights and liberties. It also gives significant weight to human freedom. Due process advocates believe that the government’s primary job is not to control crime but rather to maximize human freedom, which includes protecting citizens from undue government influence. Proponents of due process favor minimizing the potential for mistakes, as explained by Packer:

People are notoriously poor observers of disturbing events. . . . [C]onfessions and admissions by persons in police custody may be induced by physical or psychological coercion so that the police end up hearing what the suspect thinks they want to hear rather than the truth; witnesses may be animated by a bias or interest that no one would trouble to discover except one specially charged with protecting the interests of the accused (as the police are not).6

Due process advocates also believe that each suspect is innocent until proven guilty, just as Americans are taught. In addition, they place greater emphasis on legal guilt (whether a person is guilty according to the law) rather than factual guilt (whether a person actually committed the crime with which he or she is charged).

Underlying the due process/crime control perspectives are four ideals: (1) The criminal process looks, or should look, something like an obstacle course; (2) Quality is better than quantity; (3) Formality is preferred over informality; and (4) A great deal of faith is put in the courts.

THE OBSTACLE COURSE The “obstacle course” idea is rooted in a metaphor, of course. A criminal process that resembles an obstacle course is one that is complex and needs to be navigated by skilled legal professionals. Further, it is one that is somewhat difficult to operate in a predictable fashion. It is not a process that prides itself on speed and efficiency—values of great importance in the crime control perspective. In fact, the opposite could be said. The obstacle-course metaphor also stresses that each case must pass through several complicated twists and turns before a verdict can be rendered.

QUALITY OVER QUANTITY Another way to distinguish between due process and crime control is in terms of quantity and quality. The due process view favors quality—that is, reaching a fair and accurate decision at every stage of the criminal process. It stresses that each case should be handled on an individual basis and that special attention should be paid to the facts and circumstances surrounding the event. In addition, the concern with quality is one that minimizes the potential for error. For example, due

6 Ibid., p. 163.

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Chapter 1 • Introduction to Criminal Procedure 15

process advocates are in favor of allowing several death penalty appeals because the possibility of executing the wrong person should be avoided at all costs.

INSISTENCE ON FORMALITY Due process advocates do not favor informal processes. Because of the potential for human error and bias, they favor a full-blown adversarial criminal process. They also believe that early intervention by judges and other presumptively objective parties (besides, say, the police) is in the best interest of people accused of breaking the law.

FAITH IN THE COURTS Another value inherent in the due process perspective is intense faith in the courts as opposed to law enforcement. Due process advocates correctly point out that the job of a judge is to interpret the U.S. Constitution. This, they argue, helps provide protection to people charged with crimes. Faith in the courts also corresponds with the above-mentioned insistence on formality. When guilt or innocence is determined in court, an air of fairness and objectivity must be maintained.

Crime Control

In contrast to the due process perspective, the crime control perspective emphasizes the importance of controlling crime, perhaps to the detriment of civil liberties. From a cost/benefit perspective, crime control advocates believe that the benefit of controlling crime to society at large outweighs the cost of infringing on some individuals’ due process protections. Another way to distinguish between the due process and crime control perspectives is to consider the distinction between means and ends: Crime control is more concerned with the ends, with wiping out crime, or at a minimum, with mitigating its harmful effects. By contrast, due process is concerned with the means, with the methods by which people are treated by criminal justice officials. The result— either crime or the absence of it—is not of great concern to due process advocates.

Additional differences between the due process and crime control perspectives are illustrated in Figure 1.3.

THE ASSEMBLY LINE The metaphor of an “assembly line” suggests that the criminal process should be automatic, predictable, and uniform. In other words, every criminal should be treated the same, with minimal variations in terms of charges and sentences. The assembly- line metaphor further suggests that the criminal process should be quick and efficient.

FIGURE 1.3 The Values of Due Process versus Crime Control

Crime Control Values Due Process Values

• Follows “assembly line” metaphor • Follows “obstacle course” metaphor • Emphasizes quantity over quality • Emphasizes quality over quantity • Favors informality • Prefers formality • Has faith in the police • Has faith in the courts • Makes presumption of guilt • Makes presumption of innocence • Seeks to benefit society • Seeks to benefit suspects • Is concerned with ends, not means • Is concerned with means, not ends • Seeks to maximize police authority • Seeks to maximize human freedom • Seeks to control crime at all costs • Seeks to protect people’s rights at all costs • Puts emphasis on factual guilt • Puts emphasis on legal guilt

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16 Part 1 • Introduction

The goal of the crime control perspective is to move criminals through the justice process as swiftly as possible. A full-blown adversarial criminal process, replete with hearings and other pauses in the interest of the accused, is anathema to the crime control view.

QUANTITY OVER QUALITY As just mentioned, the due process model stresses quality over quantity. The crime control model, by contrast, favors quantity over quality, a view that is consistent with the assembly-line metaphor. The goal is to move as many offenders as possible through the criminal justice system with as little delay as possible. If mistakes are made along the way and someone is wrongfully charged or convicted, so be it. That is, the overall goal of ensuring that as many criminals are dealt with as possible is superior to protecting any individual’s constitutional rights.

INSISTENCE ON INFORMALITY Whereas the due process perspective favors the formality of the criminal process, with particular emphasis on the courts, the crime control perspective favors informality. The courts are to be avoided; instead, justice should be meted out beyond the walls of a courtroom. Plea bargaining, for instance, is favored because of its swift, behind-the-scenes nature (not to mention that it eliminates the need to go to trial). An insistence on informality suggests further that the law enforcement establishment should be more involved in making determinations of guilt, not the courts.

FAITH IN THE POLICE Finally, whereas the due process perspective places a great deal of faith in the courts, the crime control perspective puts a high degree of trust in the police. All Americans are taught that each suspect is innocent until proven guilty in a court of law. Clearly, the courts are charged with making this determination. However, crime control advocates favor so-called street justice, giving the police vast discretion in deciding how to deal with people suspected of being involved in criminal activity. A fitting quote describing the crime control perspective is, therefore, “All criminals are guilty until proven innocent.” In other words, all suspects should be considered guilty; if the courts determine otherwise, then so be it.

DECISION-MAKING EXERCISE 1.5

Due Process or Crime Control

In two decisions, United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Supreme Court created what is known as the “good faith” exception to the exclusionary rule. This exception, as well as the exclusionary rule, is discussed toward the end of Chapter 2. But for now, realize that both cases are important in that they held that violations of people’s constitutional rights are permissible, under limited circumstances, when the police

make honest mistakes. For example, if a police officer relies on a search warrant that was obtained on the basis of a reasonable mistake, he or she could serve the warrant, search for evidence, and seize it, even if these actions violated the rights of the person searched. The key is that the mistake must be a reasonable one. How, then, would you characterize both the Leon and Sheppard decisions: as prioritizing crime control or due process?

DECISION-MAKING EXERCISE 1.4

Due Process or Crime Control

How should the Miranda decision from Exercise 1.3 be charac- terized: as due process-oriented or crime control-oriented? In other words, does Miranda prioritize the suspect’s due process

rights or the interest of the police in controlling crime? What about the Supreme Court’s decision in Kyllo v. United States, mentioned in the “Theory versus Reality” section?

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