Why do we need criminal procedure?

Suppose that we had statutes that had proclaimed certain conduct to be criminal but no police, prosecutors, or courts to implement the statutes. If criminals were not afraid of being caught and prosecuted, it would hardly deter them from committing crimes, and it would send a powerful message that, as a society, we were not serious about punishing wrongdoers.

Suppose, by contrast, that we were determined to crack down on crime. We would establish a criminal process that would go as far as possible in investigating crimes and punishing criminals. The police would wiretap everyone’s phone, stop and search everyone walking down the street who looked suspicious, come into any home of office without knocking, and beat confessions out of suspects. In court, the defendant would not be allowed a lawyer, only the prosecutor could present a case, and a judge could convict the defendant on flimsy evidence.

Obviously, neither of these situations would be tolerable. We need a criminal process to investigate and apprehend people who may have committed crimes and to adjudicate their guilt or innocence in order to control crime, but the process has to be consistent with our values and traditions as a free society. This conflict of objectives produces great controversy about the content of the law. How far should we allow the police, prosecutors, and courts to go? To think about that question, we need to spell out in more detail the conflicting values inherent in criminal procedure.

A first value of criminal procedure is truth-seeking. The criminal process should identify, apprehend, and punish persons who have committed crimes, but it also should exonerate those who have committed crimes. Truth-seeking is an important value at every stage of the criminal process. It certainly is important in the final determination of guilt or innocence at trial, but it also applies at earlier stages of the process. Police need to make accurate determinations of when there is sufficient reason to investigate a crime or arrest a particular person, and prosecutors need to decide correctly when charges should be brought against someone.

The system also needs to seek the truth efficiently. We want the system to work reasonably well in implementing the criminal law, given that resources are limited and mistakes inevitable. Because resources are limited we cannot have a perfect system, but the police have to solve a reasonable number of crimes, and the courts cannot make many mistakes in convicting those who are brought to trial.

A focus on efficiency suggests that police and prosecutors should determine early in the process which accused persons probably did not commit a crime and screen those out of the process. Everyone else can then be passed through he process expeditiously to ultimate conviction, assuming the police, prosecutors, and the courts are pretty good at separating the innocent from the guilty, most of the accused who become involved in the process are in fact guilty. It makes since, therefore, to let the agents of the process to do their job through procedures that are in for mal and routine. Police, for example, should not be burdened with cumbersome procedures or hypertechnical requirements about what they must do in investigation crimes, seizing evidence, or interrogating suspects, burdens which would only diminish the system’s ability to determine the truth.

But the system must not be to efficient. Truth-seeking is an imperfect process, and efficient truth-seeking can be a dangerous process. Resources are limited, and limited resources for police, investigator, lawyers, and judges means that mistakes will be made. Indeed, even the best-designed and most fully funded system will produce mistakes. If mistakes are to be made, they should be made in the direction of making sure that an innocent person is not convicted, which necessarily means that some guilty persons will be set free, too.

From this perspective, informal, routine procedures are particularly dangerous. Police, prosecutors, and criminal court judges see too much crime, so they tend to see crime everywhere. We need rules to control their conduct, judges to carefully apply those rules, and other judges to review those decisions. This perspective leads us to value an adversarial system, with substantial legal protections lead to the release of persons who actually have committed crimes.

This conduct is not only about truth-seeking and efficiency. In the criminal justice system, the government brings its power to bear against an individual. But people are not simply problems of criminal control to be dealt with by bureaucratic procedure. The dignity and the status of an individual are essential value of criminal procedure. A criminal sanction can be imposed only after a process that respects that dignity and status, even if the process is slow, cumbersome, and likely to err on the side of the individual.

To prevent mistaken convictions and to respect the dignity of the individual we have a presumption of innocence. It may be factually true that someone who has been investigated and arrested by the police and charged by the prosecutor is probably guilty, but that probability is legally irrelevant, just the opposite; through the process, up to the moment of conviction, the accused is presumed to be legally innocent, the state must meet a heavy burden to overcome the presumption, and it must follow all the rules in doing so.

The adversary process and presumption of innocence serve another purpose, we are justifiably afraid of the wonderful exercise of the great government power in the criminal process, and there is a particular concern that the power will be applied unequally. Police, prosecutors, and courts have a great deal of discretion in how they exercise their power, and American history is full of incidents in which the power has been exercised in the disadvantage of the poor, minorities, or other unpopular groups.

How do we balance these conflicting objectives in criminal procedure? Do we want the process to look more like the assembly line or an obstacle course. The conflict between these objectives generates all the arguments about what kind of criminal procedure we should have, just as it generates the body of law we have. There is widespread agreement among participants in the system and scholars of criminal procedure that things are a mess. The conflict has created a body of law that is inconsistent and unpredictable. In this passage, as you think about what you think the rules should be, consider as well whether, given the conflicting objectives of criminal process, it is possible to have clear rules at all.