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Do Criminal Due Process Principles Make a Difference? A Review of McBarnet's Conviction: Law, the State, and the Construction of Justice
Published online by Cambridge University Press: 20 November 2018
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- Copyright © American Bar Foundation, 1982
References
1 Doreen McBarnet, Conviction: Law, the State, and the Construction of Justice (London: Macmillan Press; Atlantic Highlands, N.J.: Humanities Press, 1981).Google Scholar
2 McBarnet reports British conviction rates ranging from 84 to 93 percent of more serious (felony type) prosecutions to 95 to 98.5 percent of less serious (misdemeanor type) prosecutions (pp. 2, 122). Note, however, that these rates do not take account of the screening out of potential prosecutions by police or prosecutorial decisions. American research indicates that a substantial number of potential prosecutions are filtered out at that level; e.g., Herbert Jacob, Urban Justice: Law and Order in American Cities 31 (Englewood Cliffs, N.J.: Prentice-Hall, 1973). Nevertheless, even recognizing some difficulties in comparing conviction rates, the British convictions/prosecutions rates seem higher than those reported in American jurisdictions; e.g., James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts 233 (Boston: Little, Brown & Co., 1977), reports felony court convictions/prosecutions rates of 68 percent (Baltimore), 75.5 percent (Chicago), and 72. 2 percent (Detroit), while Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 137 (New York: Russell Sage Foundation, 1979), reports a convictions/prosecutions rate of 51.2 percent (843 of 1,648 defendants) in the misdemeanor courts of New Haven.Google Scholar
3 Contrast, e.g., the popular complaints about the leniency of the criminal justice system expressed in the recent Attorney General's Task Force on Violent Crime and reported in public opinion polls (for the latter see Arthur L. Stinchcombe et al., Crime and Punishment—Changing Attitudes in America (San Francisco: Jossey-Bass Publishers, 1980) (discussing increase in fear of crime and punitive attitudes despite increase in liberal attitudes)) with the felony conviction rates reported supra note 2. While American conviction rates appear to be somewhat lower than those in Britain, the rate and length of imprisonment in the United States appear to be higher than in Britain and other Western countries. For a description of sentences in English magistrates courts, see Carter, James A. & Cole, George F., The Use of Fines in England: Could the Idea Work Here? 63 Judicature 154 (1979).Google Scholar
4 E.g., see the works cited in note 9 infra.Google Scholar
5 For a more traditional analysis of due process rules in English criminal law, see David Fellman, The Defendant's Rights Under English Law (Madison: University of Wisconsin Press, 1966).Google Scholar
6 For a brief introduction to Scots criminal law, see Bingaman, Charles C., Criminal Justice in Scotland: Notes from a Yankee in the Courts of Edinburgh, 62 A.B.A.J. 881 (1976).Google Scholar
7 McBarnet uses the term “rhetoric” to refer to grandiloquent statements of lofty principles in criminal procedure; she does not use the term to refer to the study of the structure of argument as such.Google Scholar
8 E.g., Ch. Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning (Dordrecht, Neth.: D. Reidel Publishing Co., 1980), argues that exceptions and fictions are commonly used in a legal system to correct for defects in legal rules and to allow modernization of archaic rules. Similar arguments supporting legitimate rule departures are found in Mortimer R. Kadish & Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford, Cal.: Stanford University Press, 1973).Google Scholar
9 E.g., Jerome Skolnick, Justice Without Trial: Law Enforcement in a Democratic Society (New York: John Wiley & Sons, 1967) (contrasting police practices to the principle of legality); Abraham S. Blumberg, Criminal Justice (Chicago: Quadrangle Books, 1967) (contrasting criminal trial court practices to the adversarial model).Google Scholar
10 The English Judges Rules require the police to give the following caution to suspects: “You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence” (p. 26).Google Scholar
11 American judges and commentators have observed that the law of search and seizure under the Fourth Amendment has developed only since the adoption of the exclusionary rule. E.g., see Justice Rehnquist's opinion for the Court in United States v. Robinson, 414 U.S. 218, 224 (1973): “Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States [1914] …, it is understandable that virtually all of this Court's search-and-seizure law has been developed since that time.“.Google Scholar
12 McBarnet indicates that ethical prescriptions in Britain allow a defendant's solicitor to discuss the case with the judge and, of course, allow the solicitor to counsel the defendant—but prohibit the solicitor from telling his client what the judge said (p. 73). Contrast that to the official recognition of plea bargaining expressed in Santobello v. New York, 404 U.S. 257 (1971).Google Scholar
13 See note 2 supra.Google Scholar
14 E.g., Herbert L. Packer, The Limits of the Criminal Sanction, especially 149–73 (Stanford, Cal.: Stanford University Press, 1968); Skolnick, supra note 9.Google Scholar
15 I should note, however, that McBarnet's treatment of the innocence issue appears to be partly in response to the ambiguity of some of the order-maintenance types of offenses she discusses—e.g., disorderly conduct. Her points about the degree to which these offenses are fluid and police-defined are well taken, and there is genuine room for argument about whether these defendants are really “guilty” in any objective terms. This kind of definitional ambiguity is usually absent in more serious crimes like robbery or assault, however. This distinction may simply point out the need to be more explicit and specific about the nature of the crimes being discussed—and to avoid overly broad generalizations.Google Scholar
16 The ways in which the rituals and symbols of legal proceedings are used to contain the conflict of values and ideals in criminal justice and to reduce the ambiguity of questions of guilt and liability have also been explored by American legal realists, e.g., Thurman W. Arnold, The Symbols of Government (New York: Harcourt, Brace & World, 1935), reprinted in Herbert Jacob, ed. Law, Politics and the Federal Courts 23–38 (Boston: Little, Brown & Co., 1967).Google Scholar
17 On this point, see also J. H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press, 1977) (arguing that torture did not become an aspect of English law, as it did in continental Europe, because the evidence required for conviction in England was never so demanding as to require the defendant's confession). See McBarnet at 118.Google Scholar
18 For brief introductions to English and Scottish criminal court systems, see H. G. Hanbury & D. C. M. Yardley, English Courts of Law 107–25 (New York: Oxford University Press, 1979); Scott, Ian R., Criminal Prosecutions in England and Wales, 3 Justice System J. 38 (1977); Bingaman, supra note 6.Google Scholar
19 Compare McBarnet's analysis of the two tiers of justice to the three-tier description of turn-of-the-century American criminal justice in Lawrence M. Friedman & Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California—1870-1910, especially 14–15, 311–15 (Chapel Hill: University of North Carolina Press, 1981). Friedman and Percival distinguish between big show trials, a middle layer that focused on control of serious crime, and a bottom layer that focused on petty offenses and the maintenance of discipline. Like McBarnet, Friedman and Percival conclude that the big show trials served a “propaganda” function:. Rights, due process, fairness can be important, not only in themselves, but also in propaganda. They seem timeless and classless, socially neutral, in a word. The idea that this kind of justice exists may be a kind of soothing syrup for the masses. The big trials, we argued, were designed to show criminal justice at work, though in a misleading way. The real day-by-day work went on unobserved, underneath. Id. at 316.Google Scholar
20 For other discussions of the linkages between law and political ideology, see Murray Edelman, The Symbolic Uses of Politics (Urbana: University of Illinois Press, 1964); Mark Tushnet, Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 Tex. L. Rev. 1307 (1979).Google Scholar
21 Thomas Y. Davies, Organizational Behavior and the Distribution of Case Outcomes in a California Court of Appeal (unpublished Ph.D. dissertation, Northwestern University, 1980).Google Scholar
22 Id. at 235–46. Estimates derived from the cases studied indicated that only 2.5 percent (12 of 464) of the appeals in prison sentence cases were reversed compared to 17.5 percent (14 of 80) of the nonprison cases. Similarly, only 3.1 percent (13 of 424) of the cases identified as having no doubt about factual guilt were reversed compared to 10.6 percent (9 of 85) of the cases raising some doubt. It is interesting that the severity of the sanction appears to exhibit the stronger relationship to reversal; since the harmless error rule depends, in part, on the strength of the evidence, one would expect some relationshp between the degree of doubt and reversals, but there is no legal basis for expecting a relationship between the severity of the sanction (seriousness of the crime) and reversals. (Discrepancies in the total number of cases shown in parentheses stems from the deletion of cases with missing information.).Google Scholar
23 By saying that the distribution of reversals is “consistent with” the hypothesis, I mean that the standard scientific test of rejection of the null hypothesis is satisfied, but that is not to say that a causal relationship has been “proved” in any absolute sense. There is a possibility that the observed relationship may stem from a difference in other characteristics of prison and nonprison cases. This possibility is difficult to deal with because any such differences would be introduced in trial court processes long before the cases would reach the appellate court. As a result, quasi-experimental research techniques such as random assignment of cases cannot be employed to control for any systematic differences that may exist between the two sets of cases.Google Scholar
24 One recent description of the criminal process written from the perspective of a defense attorney repeatedly notes that most criminal defendants are factually guilty of some offense. Seymour Wishman, Confessions of a Criminal Lawyer 10, 16, 41–42, 221 (New York: Times Book Co., 1981).Google Scholar
25 Cf. Bazelon, David L., Foreword—The Morality of the Criminal Law: Rights of the Accused, 72 J. Crim. L. & Criminology 1143 (1981); Packer, supra note 14, at 170–71.Google Scholar
26 McBarnet states that 99 percent of the defendants in the Crown Courts are represented by counsel but that only 2 percent of the prosecutions occur in the Crown Courts; in the lower courts where 98 percent of the prosecutions occur, only 19 percent of the defendants have counsel (pp. 122, 125).Google Scholar
27 But see McBarnett at pp. 135–38.Google Scholar
28 E.g., Daniel J. Meador, Criminal Appeals: English Practices and American Reforms (Charlottesville: University Press of Virginia, 1973). But see Bazelon, David L., New Gods for Old: “Efficient” Courts in a Democratic Society, 46 N.Y.U.L. Rev. 653 (1971).Google Scholar
29 Contrast the “special circumstances” test for appointment of counsel to represent indigent defendants formulated in Betts v. Brady, 316 U.S. 455 (1942), to the flat requirement of appointed counsel in all felony prosecutions set out in Gideon v. Wainwright, 372 U.S. 335 (1963). One fact the Warren Court had before it in the Gideon case was that there had been only a marginal increase in the appointment of counsel under the flexible “special circumstances” test. See Anthony Lewis, Gideon's Trumpet 151–52 (New York: Random House, 1964), citing a statistical study presented in the American Civil Liberties Union amicus curiae brief in Gideon showing that of 139 state appeals involving appointment of counsel issues (in states that had not adopted an automatic appointment of counsel standard), the state appellate courts found the special circumstances test of Betts to be met in only 11.Google Scholar
30 Mapp v. Ohio, 367 U.S. 643 (1961).Google Scholar
31 Gideon v. Wainwright, 372 U.S. 335 (1963).Google Scholar
32 Douglas v. California, 372 U.S. 353 (1963).Google Scholar
33 Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar
34 Boykin v. Alabama, 395 U.S. 238 (1969).Google Scholar
35 McBarnet discounts the significance of the English “Judges' rules” as a tradition of judicial control over criminal justice. She comments: “In England the Judges' rules demonstrate the knack of reiterating the rhetoric but qualifying it in a way that can negate it” (p. 63). As an example, she cites Principle (c): “… every person at any stage of an investigation should be able to communicate privately with a solicitor, provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administation of justice by his doing so.” Id. (McBarnet's emphasis). For a recent discussion of the role of the appellate judge in the English legal system, see Patrick Devlin, The Judge (New York: Oxford University Press, 1979). See also Robert Stevens, Law and Politics: The House of Lords as a Judicial Body 1800–1976 (Chapel Hill: University of North Carolina Press, 1978).Google Scholar
36 See note 2 supra.Google Scholar
37 E.g., Carter v. Kentucky, 101 S. Ct. 1112 (1981) (holding that a criminal defendant remaining silent at trial has a right to a jury instruction that his silence is not evidence of guilt); Lakeside v. Oregon, 435 U.S. 333 (1978) (holding that an instruction against drawing “adverse inference” from the defendant's silence may be given even over defendant's objection); Griffin v. California, 380 U.S. 609 (1965) (holding that a California rule permitting adverse comment on defendant's failure to testify violated the Fifth Amendment).Google Scholar
38 Compare McBarnet's discussion of bail and pretrial proceedings in Britain with the description of American proceedings in Jeff Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wis. L. Rev. 441.Google Scholar
39 One member of the Court of Appeal made the following comment to me during an interview regarding the flexibility of the case-law method:. Of course, it's not hard to write a case the other way, as I'm sure you must realize. You can always find authority on paper to support the other decision. That doesn't mean we aren't trying to get the right decision here that's in accord with the law as it exists, but there are differences in philosophy that sometimes will lead to differences of opinion. Davies, supra note 22, at 148.Google Scholar
40 Id. at 160–73.Google Scholar
41 One commentary that generally argues against viewing the Burger Court as undercutting the due process concerns of the Warren Court nevertheless notes that there has been a significant retreat in the area of police practices. This commentator's description of the Burger Court's opinions regarding police practices is interesting in light of McBarnet's analysis:. Even when defense claims are upheld by the Burger Court, it is argued, the opinions raised questions that encourage state court evasion of the Court's own decisions; considerations are balanced so neatly that each case appears limited to its facts; and doubts never before entertained are expressed about the future course of precedent. These qualities undoubtedly are found in several of the Court's leading opinions, but almost all of those are opinions dealing with Mapp, Miranda, and Fay. Israel, Jerold H., Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L. Rev. 1319, 1421–22 (footnotes omitted) (1977). For a more critical appraisal of the Burger Court's decisions regarding criminal due process, see Chase, Edward, The Burger Court, the Individual, and the Criminal Process: Directions and Misdirections, 52 N.Y.L. Rev. 518 (1977).Google Scholar
42 Several of the appellate judges I interviewed acknowledged a temptation to “slough over” due process rules where factual guilt seemed clear. See Davies, Thomas Y., Gresham's Law Revisited: Expedited Processing Techniques and the Allocation of Appellate Resources, 6 Justice System J. 372, 382 (1981); Davies, supra note 22 at 244–46.Google Scholar
43 The Attorney General's Task Force on Violent Crime: Final Report, Recommendation 40, 55–56 (Washington, D.C.: U.S. Department of Justice, 1981).Google Scholar
44 For a brief introduction to the debate, see the exchange between Professor Yale Kamisar, a proponent of the rule, and Judge Malcolm Wilkey, an opponent. Kamisar, Yale, The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment More than “an Empty Blessing,” 62 Judicature 337 (1979);Wilkey, Malcolm R., A Call for Alternatives to the Exclusionary Rule: Let the Congress and the Trial Courts Speak, 62 Judicature 351 (1979). For a more extensive discussion of the arguments pro and con the exclusionary rule, see Geller, William A., Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Wash. L.Q. 621.Google Scholar
45 The rhetoric of this criticism is typified by President Reagan's recent description of the exclusionary rule as “rest[ing] on the absurd proposition that a law-enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant or how heinous the crime.” Chicago Sun-Times, Sept. 29, 1981, at 24, col. 1.Google Scholar
46 For a brief review of empirical research questions relating to the exclusionary rule, see Geller, William A., Is the Evidence in on the Exclusionary Rule? 67 A.B.A.J. 1642 (1981).Google Scholar
47 One member of the Attorney General's Task Force on Violent Crime, political scientist James Q. Wilson, has observed that the exclusionary rule has little if any impact on prosecutions for violent crime:. [I]t would be a mistake, I think, to argue that the rule has contributed materially to the increase in crime. Very few prosecutions for the kinds of crime we most fear—mugging, burglaries, robberies—involve searches that might be challenged as unreasonable or confessions that might be forced. A large fraction of the efforts by defense attorneys to exclude evidence they claim was illegally gathered occurs in trials of narcotics dealers, gamblers, pornographers and others engaged in consensual crimes. James Q. Wilson, The Evidence Is in—Can We Use It? Washington Post, Oct. 21, 1981, at A-27, col. 2.Google Scholar
48 Spiotto, , The Search and Seizure Problem—Two Approaches: The Canadian Tort Remedy and the U.S. Exclusionary Rule, 1 J. Pol. Sci. & Admin. 36, 39 (1973).Google Scholar
49 Spiotto, , Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Studies 243, 253 (1973). I have previously criticized the methodological shortcomings of other aspects of this study in Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw.U.L. Rev. 740 (1974).Google Scholar
50 Brief of Americans for Effective Law Enforcement, Inc., and the International Association of Chiefs of Police, Inc. as Amici Curiae in Support of Petitioner, at 11–17, Appendix, filed in California v. Krivda No. 71–651, Supreme Court of the United States. Of course, how significant one finds these 16 cases depends on how one weighs the relative importance of crime control values versus due process values.Google Scholar
51 Data obtained from computer printouts provided by the California Bureau of Criminal Statistics, October, 1981.Google Scholar
52 See also Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Rep. No. GGD-79-45 (Apr. 19, 1979) (federal prosecutors dropped only 0.4 percent of potential prosecutions because of illegally seized evidence; evidence was excluded in only 1.3 percent of 2,804 cases by the courts); Brian Forst et al., What Happens After Arrest? 67–68 (Washington, D.C.: Institute for Law and Social Research, May 1978) (less than 1 percent of potential prosecutions were declined by prosecutors because of illegally seized evidence; only 2 percent of the prosecutions initiated were later dropped because of due process problems); Kathleen B. Brosi, A Cross-City Comparison of Felony Case Processing (Washington, D.C.: Institute for Law and Social Research, Apr. 1979) (finding that the exclusionary rule has “little impact on the overall flow of criminal cases after arrest”).Google Scholar
53 The scarcity of violent crime cases involving the rule makes it a rather expensive subject for research since one would have to sift through a large volume of cases to locate even a small sample of cases where the rule was applied.Google Scholar
54 Because there are differences in the kinds of issues which defendants and the state may raise on appeal and by way of writ petition in California, it is necessary to combine reversals and granted writ petitions to obtain a comparison of the success of defendants and the state in appellate cases each initiated. With regard to search and seizure issues, the state initiated and won 5 appeals and 7 pretrial writ petitions for a total of 12 successes, while defendants initiated and won 8 appeals and 3 pretrial writ petitions for a total of 11 successes. Davies, supra note 21, at 312.Google Scholar
55 Davies, supra note 22, at 248, 250.Google Scholar
56 Even Marxist analysis, which presumes that law is an aspect of the ideology of the capitalist state, recognizes that there will be imperfections in the fit between law and economic relationships and that these imperfections will allow the law to exert an independent influence to some degree. See Tushnet, supra note 20, at 1346–50.Google Scholar