Methodology and Criteria in Due Process Adjudication. A Survey and Criticism

Abstract

THE apparently chaotic array of Supreme Court decisions on the due process requirements of the Fifth and Fourteenth Amendments presents an imposing challenge to anyone who would formulate a unifying rationale.It is difficult, for example, to imagine what general, systematic principle of law could be deduced from the following conclusions: a criminal conviction based on a confession obtained by physical and mental coercion violates due process regardless of its testimonial reliability," but a conviction based on incriminating evidence obtained by acts concededly violative of the due process clause is not itself violative of due process;2 the privilege against self-incrimination 3 and the right to be free of convictions based upon unconstitutional searches and seizures 4 are not protected by due process of law, but a conviction for illegally possessing narcotics based on the evidential use of narcotics unwillingly pumped out of the accused's stomach does violate due process ;5 the use of illegally obtained evidence to procure a conviction is not violative of due process when the illegality consists of breaking into the accused's office and rifling through his papers, 0 but does violate due process (at least in the eyes of two members of the Court) when the illegality consists of repeated and unauthorized entries for the purpose of installing a microphone and stringing wires to a neighboring garage ;7 due process is violated by the denial of an opportunity for the accused to retain counsel, s but not (necessarily) by the denial of an opportunity to have counsel appointed where a private retainer is financially impossible.

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