PROCEDURAL DUE PROCESS OF LAW, CRIMINAL (Update)

Integral to the law's aspirations is the set of variables differentiating law and politics: reason and passion, rationality and bias, free inquiry and ideology, fairness and self-interest. The law's ardent hope is that these variables permit distinctions between what will endure and what will pass, for it is the relative mix of the enduring and the ephemeral that determines whether a nation is one of disinterested laws or of self-interested individuals. Thus it is that the Supreme Court strives to justify its decisions through well-reasoned opinions. The task of the Court is to resist the allure of politics and rest judgment on principle.

But is this task possible? The difficulties are legion. Disagreements abound concerning the correct interpretative methodology, the data relevant to the various interpretive approaches, and the proper role of the judiciary in a democratic scheme. These disagreements are compounded because the Supreme Court often does not speak with one voice but instead is spoken for by each of the Justices in a setting that seriously complicates a consistent ordering of preferences in enduring legal doctine. Super-imposed over all these difficulties is the fact that the Supreme Court is essentially a reactive institution, responding to problems generated for it by social factors beyond its control. No matter how fervently the Justices may wish to promulgate a consistent and principled jurisprudence, the diversity and unpredictability of the grist for the Court's mill make the task formidable.

The more open-ended the interpretive problem, the more formidable the task, and among the most open-ended of the Supreme Court's tasks is the interpretation of the twin due process of law clauses in the Fifth Amendment and fourteenth amendment. The language of these clauses is not confining, their historical purposes are unclear, and to the extent there is agreement concerning those purposes, their implications for contemporary issues are not obvious. The due process clause of the Fifth Amendment, for example, was adopted as part of a set of guarantees that the newly created central government would respect its proper sphere, and the similar clause of the Fourteenth Amendment was adopted to recognize and reflect the changes wrought in the country by the civil war. Neither was adopted with the contemporary set of issues in mind to which these clauses have been asserted to be relevant by litigants and judges.

For all these reasons, the Supreme Court's interpretation of the due process clauses is consistently as much a reflection of the times as the product of timeless interpretive methodologies. The nation's first century was a time of territorial expansion and of the creation and consolidation of governmental institutions in which criminal due process adjudication played virtually no role, and there were virtually no criminal due process cases. The second century brought an increasing emphasis on the role of individual rights, which culminated in the remarkable creativity of the Supreme Court's procedural revolution in the mid-1960s. The question now is what the third century will bring.

Certain trends are already apparent. The procedural revolution is over and the resulting legal landscape is stable. Whatever its theoretical attraction, the theory of total incorporation has substantially won, even though a majority of the Court has never adopted the theory. Most of the criminal provisions of the bill of rights have been found to be binding on the states through the due process clause of the Fourteenth Amendment. Furthermore, notwithstanding the dramatic reorientation of the Supreme Court owing to recent appointments, the Court has not overruled a single majority criminal procedure decision holding a Bill of Rights provision incorporated into the Fourteenth Amendment. The incorporationist controversy is so definitively over that the opinions of the Court addressing questions of state criminal procedure discuss directly the applicable Bill of Rights provision with at most a cursory reference to the due process clause of the Fourteenth Amendment. The casualness with which the distinction is drawn between Fourteenth Amendment due process and the specific provisions of the Bill of Rights is exemplified by the opinion for a unanimous court in Crane v. Kentucky (1986). In holding that due process was violated by the exclusion of testimony concerning the circumstances of a defendant's confession, the Court said that "whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the compulsory process or confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense."

Justices also appear to have little interest in giving either due process clause much independent significance. In those few instances in recent years in which the Court has discussed either clause directly rather than as a surrogate for some other constitutional provision, it typically has done so to deny that due process has any meaning independent of the specific provisions of the Bill of Rights. In Moran v. Burbine (1986) the Court held that there was no violation of due process when the police failed to inform a criminal suspect subjected to custodial interrogation of the efforts of an attorney to reach him. Due process also does not require appointed counsel for collateral review of a conviction (Pennsylvania v. Finley, 1987), not even for collateral review of capital convictions (Murray v. Giarratano, 1989). Similarly, in Strickland v. Washington (1984) the Court commented that although "the Constitution guarantees a fair trial through the Due Process Clauses, it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment." The Court applied this approach in Caplin & Drysdale, Chartered v. United States (1989) to find that the Fifth Amendment due process clause adds little or nothing to the Sixth Amendment right to counsel clause and in united states v. salerno (1987) to reach a similar conclusion concerning the relationship between Fifth Amendment due process and the requirement of bail in the Eighth Amendment.

The failure of the Court to overrule prior criminal decisions and to give independent force to the due process clauses does not mean that the creative energies of the Court are quiescent. Rather, they are finding outlets in different directions. Through the mid-1960s the Court's agenda was to tame the unruly manner in which the criminal justice process operated, particularly in the states. Employing the due process clause of the Fourteenth Amendment as its primary weapon, the Court succeeded in subjecting the state criminal justice process to the formal limits on governmental power in the Bill of Rights and in breaking down resistance to its innovations in the lower state and federal courts. One measure of this success is the increasingly common phenomenon of state supreme courts using state law to impose greater constraints on state officials than the federal constitution requires.

Because its previous messages have been largely absorbed by the lower courts and perhaps in response to increasingly conservative politics in the country, the Court has refocused the target of criminal procedural due process analysis from the specific provisions of the Bill of Rights to the question of the appropriate remedy. There are three interrelated variables driving the refocusing: first, a concern that exclusion of evidence premised upon the policy of deterring undesirable state action has a reasonable chance of advancing that goal; second, an increasingly intense belief that finality is an important value in adjudication; and third, an emphasis on accuracy in outcome.

The primary remedies that the Court has employed to effect its revisions of criminal procedure were the exclusionary rule and the threat of reversing convictions. Cases such as gideon v. wainwright (1963), mapp v. ohio (1961), and miranda v. arizona (1966) fit a general pattern of announcements of new rules to be enforced by the threat of excluding evidence seized in violation of those rules or the reversals of convictions if the rules are not followed. The theory was that law enforcement officials would not jeopardize convictions by ignoring the new rules and that the threats of exclusion and reversal would thus deter unwanted behavior.

The present Court perceives two difficulties with this theory. First, as the new rules became accepted, and thus became the norm, the power of exclusion or the threat of reversal to affect law enforcement behavior diminished. It is one thing to exclude evidence or reverse a conviction because the police broke into a person's house, in the process apparently lying about whether they possessed a search warrant, as occurred in Mapp, but it is another to exclude evidence where the police made every effort to comply with the Court's pronouncements, as the Court refused to do in United States v. Leon (1984). Second, the nature of Supreme Court innovation is that it begins with the core problem an area poses and then expands into peripheral areas. As the cases press the logic of the original innovations further, the relationship between the cases and the policies underlying the original innovations becomes increasingly attenuated. It is one thing to sanction state officials for extensively interrogating an individual without warning him of his rights or allowing him to consult counsel, as occurred in Miranda, but it is another to do so because the state official gave a set of Miranda warnings differing somewhat from the language specifically approved in Miranda, as the Court refused to do in California v. Prysock (1981).

The Supreme Court has fashioned a number of principles to limit the exclusionary rule to situations in which there are reasonable prospects that deterrence will operate. Chief among these limiting principles is the good faith exception to the exclusionary rule fashioned in Leon. Exclusion of evidence is not likely to deter behavior if the law enforcement personnel had a good-faith belief in the correctness of their conduct. Similarly, the Court has refused to extend the exclusionary rule into peripheral areas where deterrence is unlikely to result, such as the grand jury setting (united states v. calandra, 1974) and civil matters such as forfeiture proceedings (United States v. Janis, 1976) and deportation proceedings (Immigration and Naturalization Service v. Lopez-Mendoza, 1984).

The Court has also limited those who may litigate the legality of state action to restrict exclusion of evidence to cases where a deterrent effect is likely. Because law enforcement officials will not typically know in advance who the culprit is or who will be permitted to litigate the legality of their behavior, they will not jeopardize an investigation through illegal action so long as someone affected by their behavior may be in a position to complain. Thus, in Rakas v. Illinois (1987), the Court held that the passengers of a car could not contest the legality of a search of the car that included a search of the glove compartment, which had been used with the owner's apparent knowledge. In Rawlings v. Kentucky (1980) the Court held that the defendant could not contest the validity of the search of an acquaintance's purse where, again, the defendant had placed items with the knowledge of the purse's owner.

Intimately related to the Court's concern about the deterrent efficacy of its remedies is its growing emphasis on finality of decision. As the time increases between alleged state misbehavior and judicial intervention, the likelihood that reversals will affect behavior decreases. In addition, permitting federal relitigation of issues is an intelligent tactic if the work product of the state courts is not trusted, as was the case three decades ago; but as greater confidence in that work product is achieved, departures from finality are less desirable. A system that allows multiple attacks on the legitimacy of its work product undermines itself in various ways. Allowing repetitive relitigation of issues increases the probability of aberrational results simply because a litigant will eventually come before a court that for whatever reason—randomness, bias, or simple lack of attention—will act aberrationally. Reversals in such cases are not likely to advance deterrence of undesirable behavior or any other significant value. Allowing relitigation may also detract from the primary values of the penal system by encouraging individuals to deny responsibility for their acts. Regardless of whether confession is good for the soul, it is less likely to occur while avenues of appeal remain open.

Finality has been advanced in various ways. In particular, the scope of habeas corpus has been reduced. In stone v. powell (1976) the Court held that fourth amendment issues could not be relitigated on habeas corpus if the defendant had been provided an adequate opportunity to litigate the issue at trial. In Teague v. Lane (1989) the Court held that the retroactivity of new constitutional rulings is limited to cases still pending on direct appeal at the time the new decision is handed down. In a series of cases, the Court has also developed a strict "waiver" rule to the effect that failure to raise an issue in a timely manner in state court precludes litigating it in federal habeas corpus unless failure to raise it amounted to ineffective assistance of counsel or unless a miscarriage of justice would result.

The third variable informing the Court's recent due process jurispurdence is a heightened focus on accuracy in adjudication. As the Court has become convinced that little remains of the disrespect for individual rights that it believed previously characterized the criminal justice process, it has become increasingly concerned with encouraging accurate outcomes. On the one hand, this has resulted in a further tightening of the avenues on appeal for a convicted defendant. In a series of cases beginning with Chapman v. California (1967), the Court has held that harmless error—error that does not cast doubt on the outcome of the trial—does not justify reversing a conviction. In nix v. williams (1984) the Court held that a conviction would not be reversed as a result of the admission of evidence illegally seized that would have been inevitably discovered by legitimate means. On the other hand, the Court has extended rights integral to the accuracy of convictions. For example, the Court has continued in its broad reading of the right to counsel, holding in evitts v. lucey (1985) that a defendant convicted of a crime is guaranteed effective assistance of counsel on a first appeal as a matter of right, even though a state is not required to provide for an appeal, and in ake v. oklahoma (1985) that a state must guarantee a criminal defendant access to a competent psychiatrist to assist in evaluation, preparation, and presentation of the defense.

The present state of due process adjudication is accurately captured by the holding in James v. Illinois (1990). In James the Court held that the principle that illegally obtained evidence can be used to impeach defendants' testimony so that exclusionary rules do not encourage perjury—first fashioned in Walder v. United States (1954)—did not extend to defense witnesses other than the defendant. Allowing the state to impeach witnesses other than the defendant would increase significantly the value of illegally obtained evidence, thus substantially impairing the efficacy of the exclusionary rule. Increasing the incentive of law enforcement officials to obtain evidence illegally would in turn put core constitutional values at risk. As significant as finality and accuracy are, they remain less significant than the core values of the various provisions of the Bill of Rights.

The implication of decisions like James is that criminal due process has evolved from a club to beat recalcitrant officials into line with the Court's innovations into a more subtle tool for adjusting the margins of the various doctrines. This use of procedural due process will surely continue for the foreseeable future. The next stage in the development of due process is presently unknowable, but its origins are predictable. The nation is in the midst of a subtle devolution of political authority from the central government to the states. Due process jurisprudence has mirrored this trend, as the Court has shown an increasing reluctance to intervene in the criminal justice process. As state officials become aware of their increasing autonomy, they will take advantage of it to rework state criminal processes. As innovations are implemented over the next decades, they will be subjected to constitutional challenges, and out of that process will come the next stage in the continuing evolution of the meaning of the due process clauses for criminal procedure.

Ronald J. Allen
(1992)

(see also: Automobile Search; Criminal Justice System.)

Bibliography

Amsterdam, Anthony G. 1970 The Supreme Court and the Rights of Suspects in Criminal Cases. New York University Law Review 45:785–815.

Blasi, Vincent A., ed. 1983 The Burger Court: The Counter-Revolution That Wasn't. New Haven, Conn.: Yale University Press.

Nowak, John E. 1979 Due Process Methodology in the Postincorporation World. Journal of Criminal Law and Criminology 70:397–493.

Wilkes, Donald E., Jr. 1985 The New Federalism in Criminal Procedure: Death of the Phoenix? Pages 166–200 in Bradley D. McGraw, ed., Developments in State Constitutional Law. St. Paul, Minn.: West Publishing Co.