Constitutional Criminal Law
Packer’s Two Models of the Criminal Process
Packer discussed two models of the criminal process that stand in contradiction with each other: the Due Process Model and the Crime Control Model. These two models are not mutually exclusive – both can operate simultaneously with the other. However, given the natural distinction between these two models, the operation of one will limit the extent of the operation of the other. This is because these two models are based on competing ideals that need prioritizing. While there is no absolute polarity between the ideals underlying these two models, these ideals are sources of great conflict in the area of criminal law, as manifested by conflicting rulings in many cases decided in the united States. (Packer, 1968).
The Crime Control model rests on the philosophy that “the repression of criminal conduct is by far the most important function to be performed by the criminal process.” (Packer, 1968). This model places a premium in the maintenance of public order. Ultimately, public order is important in order to secure that citizens enjoy certain liberties. There is therefore a need to maintain an efficient criminal process whereby criminal suspects may be screened, their guilt determined, and meted appropriate penalties. (Packer, 1968).
On the other hand, the Due Process Model does not negate the underlying principle of the Crime Control Model that there is a need to repress criminal activity. Rather, the Due Process Model scrutinizes the structure of the law whereby crime control would be operated, so as to ensure that only the guilty are punished and the innocent are left alone. This model recognizes that there are many factors that could cause or influence the wrongful conviction of innocents, which is the reason behind the protective stance it adopted. It is believed that the stigma and loss of liberty that go along with conviction for a criminal offense is “the heaviest deprivation that government can inflict on the individual.” Thus, there is a need to have sufficient standards that will ensure that no abuses will be committed to an individual by virtue of the government’s exercise of its power under the criminal process. (Packer, 1968).
The Warren Court
The conflict between these two modes of criminal process became intense in the 1960s, when people were becoming more aware of the importance of their individual rights. There was considerable movement away from the “infallibility of government and law enforcement.” It is at this time of great conflict that the Warren Court made controversial decisions which affected criminal law enforcement. (How did the Warren Court). Because of these controversial decisions, the Warren Court had been criticized as the court that made the most number of policies which it had no power to make. Armstrong cites Robert Bork, who stated that:
[The Warren Court] stands first and alone as a legislator of policy, whether the document it purported to apply was the Constitution or a statute. Other Courts had certainly made policy that was not theirs to make, but the Warren Court so far surpassed the others as to be different in kind. (Armstrong, 2003).
The Warren Court was known as a liberal court. It served during the years 1963 to 1969, at which time five liberals sat at the court. This court “created the revolution in constitutional criminal procedure,” which revolution centered on the upholding of essential civil rights. The Warren Court imprinted Earl Warren’s policies on every decision it promulgated, making the impression that the court has taken on an activist stance. Years later, this activist attitude of the Warren Court led to calls on the judiciary to exercise judicial restraint. (Earl Warren). Despite the revolution and political uproar that the Warren Court caused, its decisions, together with the policies underlying them, provide a fertile ground for discussion of the whole Due Process Model-Crime Control Model debate.
Decisions of the Warren Court relating to criminal procedure were focused on everyday policing, or the “routine contacts that take place between police officers and ordinary people.” As explained above, there is a perceived susceptibility of police officers or law enforcers to abuse their power in controlling crime, to the prejudice of civilians. Thus, there must be constitutional limitations that should address the possible kinds of abuses in the policing setting. (Tushnet, 2006).
Miranda v. Arizona, 384 U.S. 436 (1966)
The foremost case decided by the Warren Court on this aspect is what is popularly known as the Miranda case. Decided in 1966 and penned by Justice Warren himself, Miranda v. Arizona is claimed to be the most controversial opinion on criminal justice ever handed down by the United States Supreme Court. (White, 2004).
At the start of the opinion of the court, Justice Warren readily formulated the task of the court as to ascertain “the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.” (Miranda v. Arizona).
In Miranda v. Arizona, Miranda, an indigent Mexican was arrested by the police arrested and taken into a special interrogation room where a confession was secured from him. At the outset of the interrogation process, Miranda was not informed of his constitutional rights. An oral admission was elicited from him, after which he was directed to sign a statement verifying the alleged admission. The Court, noting that the atmosphere in such interrogations is police-dominated, held that it is not difficult to imagine how self-incriminating statements or admissions are easily obtained by police officers. (Miranda v. Arizona).
The Court also considered that many violations of constitutional rights occur during custodial interrogations, which often lead to the defendants’ unwilling confession. The Court noted that prior to the Miranda v. Arizona case, it is known that the police resort to physical brutality only to obtain confessions. Justice Warren stated that while these practices resorting to violence may be the exception rather than the rule, they are sufficiently widespread to be a proper subject of concern. (Miranda v. Arizona).
According to the court, custodial interrogations are naturally psychologically coercive. Even if the police do not resort to physical violence, there is plenty of room for mental coercion since most of the interrogations occur in private. Thus most people are left unaware of what actually goes on inside the interrogation rooms. In fact, manuals used by law enforcement agencies instruct that interrogation should take place in the officer’s interrogation room, where the suspect would not have psychological advantage. The interrogators must also display an air of confidence to heighten the suspect’s feeling of unfamiliarity in his surroundings, thereby increasing the chances of his giving an admission. (Miranda v. Arizona).
Having laid down the premises consisting of the police practices to which the defendant Miranda was subjected, the court formulated the issues in this wise: first, whether or not the Fifth Amendment privilege relating to the right against self-incrimination should be held applicable to custodial interrogations, and second, whether confessions and admissions elicited from defendants in violation of their constitutional rights should be held admissible in evidence against them.
The court, upholding the constitutional principle of a person’s right against self-incrimination, held that:
The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation. (Miranda v. Arizona).
In order to give the proper context in this case, the court extensively discussed the history leading to the elevation of this right to constitutional status. As far back as 1886, in the case of Boyd v. United States, 116 U.S. 616, 635 (1886), the Framers of the Constitution were known to be aware of subtle encroachments on individual liberty. Slight deviations from legal modes of procedure are the root of unconstitutional practices. Thus, the privilege against self-incrimination was elevated to constitutional status and accorded very broad application. (Miranda v. Arizona).
The Fifth Amendment privilege should properly be seen as a limitation on the scope of the government’s power over its citizens. The government, in seeking to enforce punishment on an individual who allegedly committed a criminal act, must prove such commission by its own efforts, and not by “the cruel, simple expedient of compelling it from his own mouth,” Chambers v. Florida, 309 U.S. 227, 235-238 (1940). Therefore, as held in Malloy v. Hogan, 378 U.S. 1, 8 (1964), in order to avoid violating the Fifth Amendment, the defendant must be guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." (Miranda v. Arizona). Any confession coming form the defendant must possess the element of voluntariness, in order to be admissible in court as evidence against him.
It can be seen that the Fifth Amendment privilege rests on a more fundamental principle: the government must respect the dignity and integrity of its citizens and the inviolability of their human personality. Citing United States v. Grunewald, 233 F.2d 556, 579 (1957), the court noted that this respect is generally accepted to be part of an individual’s substantive right to lead a private life, which is the hallmark of democracy. (Miranda v. Arizona).
Therefore, following the principle enunciated above, the court held that there must be achieved a balance between the right of the citizen to lead a private life and the authority of the government to enforce its criminal justice system.
Resolving the issue of the Fifth Amendment privilege’s application to custodial interrogations, Justice Warren begun with the statement that the privilege had always enjoyed liberal construction, citing Albertson v. SACB, 382 U.S. 70, 81 (1965), Hoffman v. United States, 341 U.S. 479, 486 (1951), Arndstein v. McCarthy, 254 U.S. 71, 72-73 (1920) and Counselman v. Hitchock, 142 U.S. 547, 562 (1892). Justice Warren also discussed that since the underlying principle of the Fifth Amendment privilege is voluntariness on the part of the defendant in sating incriminatory statements, the protection must extend to custodial interrogations, where most psychological intimidation and coercion take place. Justice Warren also noted that the compulsion to speak may even be greater in custodial interrogations, rather than in court proceedings, because the former are made in isolated places. (Miranda v. Arizona).
Justice Warren summated the rules that must be followed during custodial interrogation to avoid infringement of the Fifth Amendment privilege, thus:
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere…
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest. (Miranda v. Arizona).
Furthermore, a person under custodial interrogation has the right to have counsel present at the interrogation. This will ensure that “the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.” the lawyer’s presence will undoubtedly reduce opportunities of law enforcers to coerce the person into confessing. This right may be waived, but such waiver would only be effective if made after having been sufficiently apprised of his rights. In addition, indigent persons must be informed that they would be provided with counsel if they cannot afford to hire one for themselves. After the person is apprise of his rights, the subsequent procedure would depend on his intelligent choice. Thus, if he chooses to exercise his privilege against self-incrimination, the interrogation must stop. If he requests the assistance of counsel, no interrogation should take place in the absence of such counsel. It is clear therefore that these rights effectively reduce the degree of control that law enforcers have in the criminal justice system.
On the issue of the admissibility of statements or admissions elicited during custodial interrogations in violation of the Fifth Amendment privilege, the court held that these statements are inadmissible against the defendant. “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” This rule had been consistently followed by the court in many earlier cases, such as in Townsend v. Sain, 372 U.S. 293 (1963), Lynumn v. Illinois, 372 U.S. 528 (1963) and Haynes v. Washington, 373 U.S. 503 (1963). In all these cases, the United States Supreme Court reversed the convictions of the accused because they were based on confessions elicited in violation of the Fifth Amendment privilege. (Miranda v. Arizona).
Escobedo v. Illinois, 378 U.S. 478 (1964).
The ruling in Miranda v. Arizona followed that made by the court in an earlier case, Escobedo v. Illinois, 378 U.S. 478 (1964). In said case, a 22-year-old man of Mexican descent was arrested together with his sister and taken into custody. He was interrogated in connection with the fatal shooting of his brother-in-law. He was interrogated despite his repeated requests for the assistance of his counsel. The interrogators ignored such request, despite the fact that the person’s counsel was present in the building. He was also not informed of his right to remain silent. As a result, the defendant made an incriminating statement, which was used against him at the trial. He was convicted of murder.
The Court, through Justice Goldberg, held that the admission elicited during the custodial interrogation is inadmissible against the defendant because it was elicited in violation of his constitutional rights. The court noted that this case involved, not a mere general inquiry into an unsolved crime, but a specific investigation on a particular suspect. At this point, the rights pertaining to a person under custody already attach, and their violation must result in the inadmissibility of any information that may be elicited from the suspect. Here, the accused was not informed of his constitutional right to keep silent, in violation of the Fifth Amendment privilege. Also, he was denied the assistance of counsel, in violation of the Sixth and Fourteenth Amendments. Thus the conviction was reversed and the case was remanded for further proceedings. (Escobedo v. Illinois).
Gideon v. Wainwright, 372 U.S. 335 (1963).
Another prominent case decided by the Warren Court in connection with criminal law is Gideon v. Wainwright, 372 U.S. 335 (1963). It was the case known for its ruling that the right of indigent persons to be provided with counsel must apply, across the board in all states, in all felonies, not only capital ones. Also, Gideon v. Wainwright was controversial because prior to this case, the general understanding was that the Sixth Amendment guarantee gave an accused the right to have his own, retained counsel, not the right to have counsel appointed at the expense of the state. This decision appeared to be another successful attempt by the Warren Court at judicial legislation, since this interpretation of the scope of the Sixth Amendment guarantee has not been expressed in preceding cases. (Strauss, 2002).
In said case, a person was charged with having broken and entered a poolroom with intent to commit a misdemeanor, a noncapital felony. He appeared in court without funds and without counsel. Relying on the Sixth Amendment, he asked the Court to appoint a counsel for him. However, the state court denied such request, on the ground that state law only provides for the appointment of counsel for indigent defendants in capital cases. Thus, trial proceeded without the assistance of counsel, and the defendant was convicted. Upon certiorari to the Supreme Court, Justice Black expressed the opinion of the court that the right to counsel is an essential right to guarantee a fair trial. (Gideon v. Wainwright).
The court explained the rationale for the state’s duty to provide indigent defendants with counsel. Justice Black’s well-written decision carefully attempted to strike a balance between the interest of the state to prosecute criminals and its duty to protect the fundamental rights of its citizens. According to the court, the adversary system of criminal justice requires that a defendant be represented by counsel, to assure that proceedings would proceed fairly. This right to counsel would be rendered inutile if a person would be deprived of such an assistance by virtue of his poverty. Inasmuch as the government spends huge sums of money to establish mechanisms for the criminal system, such as the compensation of judges and prosecutors, the state also needs to spend on the employment of lawyers to assist indigent defendants. This is so, if the government wants to prove its commitment and recognition of the right to counsel as a fundamental right of its citizens. (Gideon v. Wainwright).
Mapp v. Ohio, 367 U.S. 643 (1961).
Finally another case decided by the Warren Court regarding the criminal justice system that needs to be discussed is Mapp v. Ohio, 367 U.S. 643, 655 (1961). It dealt with the issue of the admissibility of items seized after an illegal search. In said case Mapp was suspected of having information relating to a suspected bomber. The police were not armed with a search warrant. However, they insisted on conducting the search and in the process, they were able to retrieve some pornographic materials in the house, which led to Mapp’s conviction for possession of lewd materials. The Supreme Court ruled that the seized materials are inadmissible in evidence, because they were fruits of an illegal search. (How did the Warren Court).
The Fourth Amendment to the United States Constitution provides for protection against unlawful and unreasonable searches and seizures. Violation of this right leads to the operation of the exclusionary rule, which proscribes the use of illegally seized materials against the defendant in court. Again the Warren Court in this decision demonstrated its inclination to protect civil rights of citizens, at the expense of limiting the scope of the government’s power to prosecute people for crime.
Limitations of the Warren Court
The strongest criticisms of the innovations introduced by the Warren Court in the field of criminal justice relate to its excessive attention on constitutional regulation of criminal procedure and the lack of consideration of substantive criminal law or punishment. Although the Warren Court has definitely moved towards the strengthening of civil rights, there is neglect of equally important considerations such as the improvement of the criminal justice system and its ultimate goals such as the punishment and rehabilitation of criminal offenders. (Brown, 2002).
Armstrong, V.C. (2003). Impeach Earl Warren: The Warren Court's Legacy Fifty Years Later, Part I. Eagle Forum’s Court Watch. Retrieved November 29, 2006, from http://www.eagleforum.org/court_watch/alerts/2003/feb03/02-21-03Brief.shtml
Brown, D.K. (2002). The Warren Court, Criminal Procedure Reform, and Retributive Punishment. Washington and Lee Law Review. Retrieved November 28, 20006, from http://papers.ssrn.com/sol3?cf_dev?AbsByAuth.cfm?per_id=41886
Earl Warren (1891-1974). Michaelariens. Retrieved November 28, 2006, from http://www.michaelariens.com/ConLaw/justices/warren.htm
Escobedo v. Illinois, 378 U.S. 478 (1964). Retrieved November 29, 2006, from http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0378_0478_ZS.html
Gideon v. Wainwright, 372 U.S. 335 (1963). Retrieved November 28, 2006, from http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=372&invol=335
How did the Warren Court use judicial review to protect the rights of citizens? Retrieved November 28, 2006, from http://www.socialstudieshelp.com/Lesson_106_Notes.htm
Miranda v. Arizona, 384 U.S. 436 (1966). Retrieved November 30, 2006, from http://supreme.justia.com/us/384/436/case.html
Packer, H.L. (1968). Two Models of the Criminal Process.
Strauss, D.A. (2002). The Common Law Genius of the Warren Court. Retrieved November 28, 2006, from http://126.96.36.199/search?q=cache:3h5SAZ7umrkJ:www.law.uchicago.edu/academics/ publiclaw/resources/25.strauss.warren.pdf+%22warren+court%22+miranda&hl=en&gl= ph&ct=clnk&cd=20
Tushnet, M. (2006). Observations on the New Revolution in Constitutional Criminal Procedure. Georgetown Law Journal. Retrieved November 29, 2006, from http://www.findarticles.com/p/articles/mi_qa3805/is_200606/ai_n16618981
White, W.S. & Arbor, A. (2004). Miranda’s Waning Protections: Police Interrogation Practices after Dickerson. The University of Michigan Press. Retrieved November 30, 2006, from http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/White204.htm