Constitutional Criminal Procedure Research Articles

Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications

Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every sub-section of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutia of AEDPA, the hallmarks of our legal system, basic due process and constitutional supremacy, have been overlooked. This Article aims to re-focus the debate. The application and discussion of AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: where the state post-conviction process does not provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254 – in working out all of the (e)(2)’s and the (d)(1)’s – we have forgotten due process. It is time to return to it. More than a century ago in Frank v. Magnum and Moore v. Dempsey, the Court recognized the critical role that federal habeas review must play in ensuring that basic constitutional criminal procedure rights were adjudicated in a minimally “full and fair” manner by state courts. To be sure this fair-process check on state adjudications was of minimal, even trivial, significance during the Brown v. Allen era when federal habeas was viewed by the Court as providing a virtually unchecked opportunity to rework the underlying merits of the state adjudication. But the limitations on federal habeas review born during the Rehnquist and Burger Courts and enhanced through the enactment of the AEDPA compel a reasoned revisiting of due process in this context. After surveying the law defining the minimum standards of due process in the context of adjudicating constitutional criminal procedure rights – the “full and fair” mandate – this paper recommends a reading of §2254 that is both faithful to due process and consistent with the goals of the AEDPA.

ARGUMENTS OF VIRTUE AND CONSTITUTIONAL CRIMINAL PROCEDURE

Though Ronald Dworkin has directed his most recent book, Is Democracy Possible Here?, at a lay audience, its accessibility gives academics an opportunity to consider his more philosophically rigorous works with fresh eyes. In particular, it gives us a chance to re-evaluate Dworkin's distinction between principles and policies and to reconsider the place of arguments of virtue in his theory of constitutional interpretation. Furthermore, we are better able to understand various cases and doctrines in constitutional criminal procedure when we acknowledge the role of arguments of virtue in legal debates.

Arguments of Virtue and Constitutional Criminal Procedure

Though Ronald Dworkin has directed his most recent book, Is Democracy Possible Here?, at a lay audience, its accessibility gives academics an opportunity to consider his more philosophically rigorous works with fresh eyes. In particular, it gives us a chance to re-evaluate Dworkin's distinction between principles and policies and to reconsider the place of arguments of virtue in his theory of constitutional interpretation. Furthermore, we are better able to understand various cases and doctrines in constitutional criminal procedure when we acknowledge the role of arguments of virtue in legal debates.

The Exclusion of Improperly Obtained Evidence in Greece: Putting Constitutional Rights First

In contrast with England and Wales, where there is a discretion to exclude improperly obtained evidence, exclusion in Greece is automatic. Article 177 para. 2 of the Code of Penal Procedure mandates that evidence obtained by the commission of criminal offences is not taken into consideration. In addition, article 19 para. 3 of the Constitution prohibits the use of evidence obtained in violation of the right to privacy. Inspired by the rigidity of these exclusionary rules, the rights-centred approach that they reflect and the context of a constitutional criminal procedure within which they apply, this article sheds light on the protection of constitutional rights as a rationale for the exclusion of improperly obtained evidence. It does so against the background of the reliability-centred exclusionary doctrine in England.

The Black Box: The Reasons Behind Prosecutors' Declination Choices

This article explores some facets of internal regulation - efforts within the branch, and indeed within individual prosecutors' offices, to control and legitimize prosecutorial discretion. Our thesis is simple but profound. We believe that the office policies and practices of thoughtful chief prosecutors can produce the predictable and consistent choices, respectful of statutory and doctrinal constraints, that lawyers ordinarily expect from traditional legal regulation. Indeed, with regard to many legal and policy concerns, such as prosecutorial race and gender bias, we believe that internal regulation can deliver even more than advocates of external regulation could hope to achieve. We use more than a decade of detailed data from the New Orleans District Attorney's office (NODA) to explore this thesis. The database covers all cases handled by the NODA office between 1988 and 1999. It contains detailed information on around 430,000 charges and about 280,000 cases (involving 145,000 defendants), filed or adjudicated between 1988 and 1999. We find that declinations in New Orleans reveal an internal legal order at work. This legal order is practically hidden and virtually unknown to the scholarly and policy community; at the same time the values it incorporates are strangely familiar. This internal order responds not only to the policy priorities of the elected leaders of the office, but it also enforces and deepens the commands of the substantive criminal law and the adversarial criminal process. The inner workings of the NODA Office under Harry Connick suggest that while scholars and policy-makers have missed the importance of internal regulation, the best prosecutors have not. In this article we describe four distinct sources for the internal regulations visibly at work in New Orleans. Some internal regulations reflect procedural constraints, including constitutional criminal procedure, where prosecutors decline cases if they believe that the police violated the rules of search and seizure or other investigation constraints. This executive exclusion function can both predict the ultimate reaction of courts to these cases, and perhaps add to the procedural requirements that courts might impose. A second source of internal regulation comes from a most unexpected legal guest at the prosecutorial table, as prosecutors rely on doctrines in the substantive criminal law (particularly mens rea requirements) to sort cases. Third, some internal regulations derive from practical problems of proof and evidence, particularly when prosecutors account for the role and preferences of victims. Fourth, prosecutors account for various kinds of regularized policies, including the hostility to plea bargains examined in our earlier study. Together these four kinds of reasons have a surprisingly comfortable and familiar feel.

Pipe-Dreams of Truth and Fairness: Is Crawford v. Washington a Breakthrough for Sixth Amendment Confrontation Rights?

In the process of constitutionalizing criminal procedure, Europe lags far behind the developments that revolutionized the U.S. legal system in the 1960s and 1970s. While that process in the U.S., as is generally known, has been in decline ever since the mid-1980s, the pendulum in Europe started, if slowly, to swing upward just around that time. At the beginning of the twenty-first century, when constitutional criminal procedure in the U.S. appears, at best, to enjoy endangered species status in light of overbearing national security concerns, the Strasbourg European Court of Human Rights continues to sharpen the teeth of basic defense rights as guaranteed—in particular— by the fair trial provisions of art. 6 of the European Convention of Human Rights and Basic Freedoms (in the following, European Convention). Certainly, it would be naive to think that security concerns could not—or are at least not likely to—present a threat to liberty rights in Europe to the extent seen in the U.S. Still, within the

Yale Kamisar: The Enemy of Injustice

In the summer of 1978, Duke Law School hosted a conference in which a variety of speakers offered perspectives on Constitutional Criminal Procedure. One of the speakers argued that the Warren Court's criminal-procedure revolution created a backlash that ultimately made things worse for criminal defendants. In order to dramatize his point, he suggested, Kamisar is the enemy. When that speaker had finished, the Conference Moderator began his response by stating, First of all, Yale Kamisar is not the enemy of anything, except injustice. To those unfamiliar with Kamisar's work, it might seem implausible to suggest that any law professor should be given the credit or the blame for the Warren Court's landmark criminalprocedure decisions, much less a commentator's evaluation of the consequences of those decisions. Kamisar's scholarship, however, played a significant part in producing some of the Court's most important criminal-procedure decisions. Most famously, his articles on police interrogation during the early sixties provided the basis for the Court's decision in Miranda v. Arizona' and earned him the title of the father of Miranda. 2 Even earlier, his incisive critique of the Court's decision in Betts v. Brady 3 helped produce the Court's unanimous overruling of Betts in Gideon v. Wainwright. 4 Through his analysis of Betts and other cases in which indigent criminal defendants were convicted after trials in which they were not represented by attorneys, Kamisar convincingly demonstrated the fallacy of Betts's central premise: it is simply not possible to determine whether an unrepresented defendant received a fair trial by examining the defendant's trial transcript. His articles relating to the Fourth Amendment exclusionary rule, moreover, have shown that the

Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law

The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.

Lawful Policing

Police compliance with the law is one of the most important aspects of a democratic society. Americans expect the police to enforce laws to promote safety and to reduce crime, victimization, and fear, but no one believes that the police should have unlimited power to do so. We expect police to enforce laws fairly according to law and rules that circumscribe their enforcement powers. The existence of these rules justify the claim that police are a rule-bound institution engaged in the pursuit of justice and the protection of individual liberties, as well as the battle against crime. This article reviews research on the extent to which police follow laws and rules, especially constitutional criminal procedure rules, addressing seizures, searches, interrogations, and deadly force. Also reviewed is research pertaining to police adherence to rules governing excessive force, corruption, and racial profiling.

About guilt and innocence: the origins, development, and future of constitutional criminal procedure

About guilt and innocence: the origins, development, and future of constitutional criminal procedure

Rationing Criminal Defense Entitlements: An Argument from Institutional Design

This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated—that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel’s “democratic experimentalism,” a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors—defense attorneys—have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to * Associate Professor and Alumni Faculty Fellow, Washington and Lee University School of Law.

Rationing Criminal Defense Entitlements: An Argument from Institutional Design

This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated - that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel's democratic experimentalism, a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors - defense attorneys - have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to suspects facing greater potential punishments. A set of default rules, drawn largely from the study of wrongful convictions, provides practical guidance for implementing these principles. This practice substantively revises the real meaning of constitutional entitlements and leaves some defendants indisputably with less than judicial pronouncements of constitutional law imply. But when rights are underfunded, that outcome is inevitable, as longstanding practice demonstrates. Explicitly confronting funding limits and allocating rights in light of them yields a more coherent, defensible allocation of entitlements.

What's Wrong with Gideon

Gideon v Wainwright' is an icon of criminal procedure. The case, decided in 1963, established the constitutional right of indigent felony defendants to have counsel appointed to represent them in state criminal courts.2 To many, the Court's conclusion in Gideon was a long-awaited and obvious one. Indeed, Robert F Kennedy, then Attorney General, speaking at The Law School on Law Day a year after Gideon was decided, wondered whether lawyers even needed a constitutional determination to spell out appropriate professional responsibilities for representing indigent defendants.3 Given its status, then, one might find it somewhat surprising that I take issue with the case. I have set this task for myself, but I must be clear about what I perceive to be the problem with Gideon. I have no quarrel with Gideon's conclusion establishing the constitutional right of indigent defendants to appointed representation. That principle is, of course, why Gideon is famous. What I find problematic about Gideon is the basis of the Court's opinion. Gideon, I believe, represents a break with a kind of constitutional decisionmaking in the criminal procedure areaa break that has negative consequences. Specifically, Gideon marks the beginning of a shift in the Court's articulation of the requirements of fair trials away from notions of fundamental fairness in the Due Process Clause and toward reference to the Bill of Rights via the process of incorporation. The effect of this shift is subtle but significant. Throughout the early due process cases comprising the infancy of constitutional criminal procedure, the Court demonstrated not only an interest in securing accurate determinations of guilt for state criminal defendants, but also an obvious concern about the relationship between the structure of

Justice for All? Two Bad Arguments (and Several Good Suggestions) for Resisting Double Jeopardy Reform

The government's latest proposals for double jeopardy law reform leave many unanswered questions and causes for concern regarding their scope and impact. However, the merits of such proposals can only be properly evaluated by viewing them in the broader context of constitutional criminal procedure. It is contended that the true significance of the double jeopardy prohibition is rooted in the constitutional value of the finality of acquittals. Two further supposed rationales for the prohibition, drawn from the Law Commission's recent analysis, are canvassed and conclusively rejected. The common law's ancient ban on double jeopardy is underpinned neither by the well-motivated desire to avoid distressful trials, nor by the promotion of investigative efficiency. Further reform debates would be facilitated by general assent to this clarification.

Quasi-Affirmative Rights in Constitutional Criminal Procedure

Constitutional criminal procedure is often seen as starkly libertarian, consisting exclusively or almost exclusively of negative rather than positive rights. But constitutional criminal procedure actually is replete with rights best understood as - affirmative conditions placed on actions that government cannot realistically be expected to forego. Although the traditional objections to affirmative rights also apply to quasi-affirmative rights, they apply less forcefully. This is particularly true in constitutional criminal procedure, where the pervasiveness of quasi-affirmative rights, the special severity of criminal penalties, and the reliance on evidentiary exclusion as a remedial device all make quasi-affirmative rights less objectionable than they may be elsewhere. Nonetheless, courts often fail to distinguish quasi-affirmative rights from affirmative rights. They appear to shy away from doctrinal paths in constitutional criminal procedure that seem to place any kind of affirmative obligation on government, even when the obligation in question is actually only quasi-affirmative. The result has been the underdevelopment of constitutional criminal procedure overall. This article presents four examples of quasi-affirmative rights in constitutional criminal procedure that courts have failed to develop, in each case largely because the right in question seems affirmative rather than negative. The first example involves the government's obligation to make provision for reasonably expeditious processing of warrant applications before claiming that exigent circumstances excused the failure to obtain a warrant in a particular case. The second concerns the government's duty to tape-record custodial interrogations of criminal suspects. The third has to do with the responsibility of police departments to promulgate rules reasonably constraining the discretion of individual officers in deciding whether and how to carry out searches and seizures. The fourth pertains to the obligation of the government to provide court-appointed counsel with some minimally adequate level of financial support. In each of these instances, judicial aversion to the proposed new right appears to have rested in significant part on an exaggerated sense of the jurisprudential difficulties it would raise. Recognizing the distinction between quasi-affirmative and affirmative rights may therefore make courts less reluctant to develop new quasi-affirmative rights in constitutional criminal procedure. It may also help courts to develop those rights in ways that minimize their dangers. The dangers are likely to be most effectively minimized by judicial strategies designed to promote ongoing dialog between the judiciary on the one hand and the political branches on the other. Two classes of such strategies seem particularly promising, and in fact are already in use in criminal procedure. The first consists of announcing rules that are in some sense reversible the by the political branches. The second relies on rules that, at least initially, require the government only to pay attention to a problem and to articulate the reasons for its response or lack thereof.

The Stubborness of Pretexts: An Essay on the Fourth Amendment

On May 29, 2001, the Supreme Court decided Arkansas v. Sullivan, a seemingly unremarkable per-curiam opinion that facilitated the conviction of a small-time meth-dealer whose trial was aborted by pre-trial rulings that were affirmed by his state's highest court. The Supreme Court reversed, ruling that in suppressing Sullivan's drugs, the state courts had ruled flatly contrary to this Court's controlling precedent, Whren v. United States. Five years earlier, Whren had confronted the very question before it in Sullivan: does the Fourth Amendment's injunction against unreasonable searches and seizures prevent the prosecution from using evidence that police discovered by way of a so-called 'pretext'? Whren held that it does not; Sullivan followed suit. The pretext problem had been percolating in the Supreme Court for at least four decades before its putative burial in 1996 by Whren. Indeed, it is one of those areas of criminal procedure where 'confused patchwork,' to lift a term of Justice White's, would be apt. 'Pretext' refers to an action that was done for fishy reasons. In other words, calling something a 'pretext' is not so much a criticism of the action as it is of its motive. And while in just six years Whren already has been cited over 1000 times in court opinions and has been the central subject of some 50 law-review articles, the criteria of pretexts seem to be taken as given; it is their consequences that get all the play. Because I am far from persuaded that we have reached agreement on what those criteria are, I hope to establish them here. In this Essay, therefore, I will reflect on 1) how Whren's failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure; and 2) the extent to which the Court in Sullivan compounded that failure, which I hope I can lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure

INTROD U CTION .. 1030 I. IDENTIFYING AND JUSTIFYING PROPHYLACTIC RULES, SAFE HARBORS, AND INCIDENTAL RIGHTS 1032 A. Constitutional Prophylactic Rules 1037 B. Constitutional Safe Harbor Rules 1044 C. Constitutional Incidental Rights 1047 II. (RE)FORMULATING PROPHYLACTIC RULES, SAFE HARBORS, AND INCIDENTAL RIGHTS . 1051 A. Fostering a Dialogue Between the Supreme Court and Other Federal and State Actors 1052

Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure

The Miranda conundrum runs something like this. If the Miranda decision represents interpretation, and all unwarned statements taken during custodial interrogation are compelled within the meaning of the self-incrimination clause, the impeachment and fruits exceptions to Miranda should fall. If it is not interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part I, I introduce and define the terms constitutional prophylactic rule, constitutional safe harbor rule, and constitutional incidental and attempt to legitimate their use. I further demonstrate that criminal procedure is so flush with such prophylactic and safe harbor rules and incidental rights that trying to eliminate them now, by either reversing a large number of criminal procedure cases or constitutionalizing all of those holdings, would do more harm than good. I propose that we accept the fact that these rules and rights are a fixed part of our landscape, and focus instead on minimizing their risks and maximizing their benefits. Thus, in Part II, I suggest that we can highlight their benefits; encouraging dialogue and cooperation between the federal judiciary and state and federal executive and legislative officers, fostering experimentation with new procedures that may work better, and providing the flexibility to respond to new empirical and social science data without reversing decisions; and cabin their risks; infringing on principles of federalism and separation of powers, hardening rules that should be flexible enough to respond to changing facts, and deflecting attention away from actual violations; by caution, deference, and what I call and truth-in-labeling. Caution requires the Court to refrain from creating prophylactic or safe harbor rules and incidental rights except where it clearly identifies the mandate of the clause at issue and/or the values underlying that clause, and then explains why a rule or right is necessary to protect or adjudicate that clause. Deference requires the Court to warn the other branches of the federal government and all branches of the state governments that some action is necessary, and act itself only if the other actors fail to offer alternative procedures that are within an acceptable range of functionality. Truth-in-labeling requires the Court to identify each doctrinal rule it creates as being either an explicit rule or remedy, or a prophylactic or safe harbor rule or incidental right, so that there is a clear signal that modification may be permissible. Finally, in Part III, I examine Chief Justice Rehnquist's embarrassing failure, in Dickerson v. United States, to acknowledge much less resolve the Miranda conundrum. Inexplicably, Miranda is no longer a prophylactic rule (dashing all hopes for dialogue with other branches and improved alternatives), though neither is it true interpretation. Thus, an opportunity for a Court description of the status and justification for the Miranda warnings, as well as an acknowledgment of the status and justification for the host of other Court-created rules and rights that do not precisely track the clause that they concern, was squandered.

Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Constitutional criminal procedure decisions are often characterized today by pseudo-empirical statements about the importance of law enforcement and the sanctity of individual liberty. Without seriously taking account of empirical research, the Supreme Court strikes down rules of criminal procedure because they "fail to protect privacy...and impede effective law enforcement." The Court upholds other rules, again without really assessing the empirical evidence, because they embody a "carefully crafted balance designed to fully protect both the defendant's and society's interests." As we all recognize, these are purely rhetorical statements intended to render authoritative the Court's decisions. In this respect, the 1999 Term was business as usual. Without so much as discussing or even citing in a footnote the considerable research that had been conducted on police custodial interrogation in the 1990s, the Chief Justice, writing for a seven-member majority in Dickerson v. United States, concluded that there was no adequate justification for overruling the requirement of Miranda warnings. Writing for the Court in Wardlow as well, the Chief Justice acknowledged the empirical nature of the question - whether flight from a police officer amounted to reasonable suspicion - but stated that there were "no available empirical studies dealing with inferences drawn from suspicious behavior" and, therefore, that the Court had to rely on its own "commonsense judgements about human behavior." These types of assertions, we argue, are not self-evident or common sense. They are contested empirical claims that are hotly debated in legal and social scientific circles. And, we suggest, there are data and studies that discuss these empirical issues. Though we have differences of opinion as to the outcome in some of these cases, and though we have sharply disagreed in the past about the soundness of other criminal procedure decisions, in this Foreword we put aside our differences and link arms to call for a new generation of criminal procedure jurisprudence, one that places empirical and social scientific evidence at the very heart of constitutional adjudication. We are calling for a mode of judicial decision-making and academic debate that treats social scientific and empirical assessment as a crucial element in constitutional decision-making, thereby making criminal procedure decisions more transparent. By more transparent, we mean to describe adjudication that expressly articulates the grounds for factual assertions and, as a result, more clearly reflects the interpretive choices involved in criminal procedure decision-making. We are not so naive or idealistic as to think that increased attention to empirical evidence will guarantee right answers in criminal procedure cases. But use of empirical evidence will produce a clearer picture of the existing constitutional landscape and spotlight the normative judgments at the heart of criminal procedure cases.

Enduring Principles and Current Crises in Constitutional Criminal Procedure

Akhil Amar informs his readers that he will attempt to analyze the Fourth, Fifth, and Sixth Amendments from the perspectives of text, history, and structure, in order to lay bare their first principles. The first principle is summed up concisely: the Constitution seeks to protect the innocent. My Review Essay will show that Amar's vision of the animating principle behind the Bill of Rights is myopic and his analysis fails to mesh with the empirical world of criminal law practice. My critique breaks down into two general categories. The first concerns his legal and historical analysis. History and wisdom indicate that Amar's animating principle -- the pursuit of truth -- is not the only, or even, perhaps, the most important, principle at work in the Bill of Rights. For example, Amar may be accurate in stating that warrantless searches were not a concern of the framers when the Fourth Amendment was adopted. However, to conclude from this that the Court's current warrant preference is backwards ignores the fact that only a warrant or well delineated exception can effectuate the values underlying the Amendment under current social conditions. This is because the Fourth Amendment was not designed primarily to protect the innocent, but was instead a profoundly anti-government amendment designed to control governmental power. The second category of criticisms I will level concerns whether Amar's suggested reforms will actually take us any closer to his first principle, protecting the innocent, or to others primary principles in the Bill of Rights, such as fairness and equality. I conclude that his suggestions will do neither. For example, elimination of the exclusionary sanction will do little to ensure reliable convictions, as only a small fraction of guilty defendants are released on this basis. However, it will ensure that police officers lack guidance on how to conduct a lawful search, and that minorities and disfavored groups disproportionately suffer from harassment by law enforcement officers. In actuality, the bulk of miscarriages of justice are produced not from any constitutional jurisprudence that Amar will reform, but rather through inaccurate eyewitness testimony, high pressure plea bargaining, defendants' inability to obtain exculpatory evidence from the government, lack of funding for criminal defense attorneys, defendants' inability to adequately investigate the facts, and vague and malleable criminal laws. Yet both Amar and the Court have failed to suggest any clause of our constitution as a remedy for these serious failings. Finally, Amar's proposed first principle fails to address some of the most significant issues in constitutional criminal procedure. These problems, in what I consider to be descending order of importance, concern race relations in law enforcement and the Court's unwillingness to extend either Equal Protection or Fourth Amendment protection to minorities in any useful manner; the ongoing collapse of the criminal/civil divide, rendering the application of the Fourth, Fifth, and Sixth Amendments uncertain; and the excessive and multiple punishments inflicted upon defendants from the combination of federal and state criminal statutory explosions and the lack of any viable protection under present Fifth Amendment Double Jeopardy and Eighth Amendment Excessive Fines and Cruel & Unusual Punishment jurisprudence.