Foreword: A New Agenda for Criminal Procedure

Abstract

A symposium issue on criminal procedure is a natural experiment in assessing the state of the intellectual art in the field. Ask a number of scholars to contribute pieces on what strike them as important contemporary perspectives and issues in criminal procedure—very broadly defined— and you get a map of the field’s sense of itself. This sort of experiment is especially interesting in criminal procedure, because few areas are so intellectually self-conscious, so prone to identity crises, so inclined to offer up new or revised “models” of themselves. The temptation and risk in such an introduction is to draw a generalization from the diverse contributions, one that says more about the introducer’s desire to find data for his own predisposition than about the contributions themselves. The temptation is even more dangerous here, where the contributions are very diverse and arguably reach beyond the boundaries of what we normally call criminal procedure. But I shall nevertheless venture forward and hereby aver that these papers—including, or especially, those that seem to reach beyond conventional “procedure”—cluster around a singular sense of the current crisis of the field: a doubt about whether our basic assumption that Bill of Rights regulation of police and prosecutorial practices should remain the focus of criminal procedure. I glean from these contributions a set of arguments, intimations, or indications that the focus for legal and scholarly concern must shift to the aspects of the system that are often ignored, in part because they simply do not reduce themselves to the sort of conventional constitutional doctrinal analysis and intellectual modeling on which the field as been built. And I detect a sense that the challenge of a new criminal procedure will be to find