The Models of Criminal Procedure

Abstract

Although contemporary criminal procedure doctrine is palatable to most members of American society, there are grave and often unnoticed dangers in ad hoc doctrinal development. Precedents without theoretical justification suffer from backbones only as sturdy as the relevant judicial majority and are particularly vulnerable to slow accretions of official power. The only insurance against doctrinal creep-and-crawl is a commitment to legal principles grounded in constitutional theory. In this article, I offer a range of connecting criminal procedure with constitutional theory. The poles of the theoretical spectrum were originally articulated by Professor Herbert Packer more than three decades ago: The model extols social control at the price of freedom and views the suppression of crime as the ultimate goal of the criminal justice system. Towards this end, the crime control model seeks maximum informality, uniformity, and finality in the criminal process. The due model is diametrically opposed to this approach and instead reveres autonomy and dignity at the price of social efficiency. This model is highly critical of the criminal justice system and seeks to check government at every turn. Although neither model reflects the current state of criminal procedure nor a thoroughly appealing normative approach, each provides a terminal point at the opposing ends of a rational continuum. These polar positions can thereby limit the playing field for discussion, accentuate the value judgments at stake, and, most importantly, facilitate comparison between other models. Within this framework, I examine three modern criminal procedure models founded on comprehensive constitutional theories. The neo-federalist model pursues the first principles of criminal procedure by placing heavy reliance on the text, context, and structure of the Constitution. In particular, it considers the pursuit of truth and the protection of the innocent to be the fundamental goals of the criminal justice system while conversely advocating the elimination or curtailment of criminal procedure which do not further these goals. The antidiscrimination model is primarily concerned with means rather than ends and takes a participational orientation to criminal procedure. It focuses on the decisionmaking machinery of government and the allocation of costs, demanding that minority groups have access to the political process and that burdens be spread across the relevant community. And finally, the individual rights model offers a sovereignty-based theory of criminal procedure grounded in neo-Kantian individualism. It designates zones of autonomy that must be reserved to the as well as the circumstances that would justify intrusion into these otherwise inviolate areas, providing interpretive content for the relevant constitutional guarantees. After considering their origins, mechanics, and criticisms, the criminal procedure models are run through a gauntlet of factual scenarios to test their merits and provide a springboard for scholarly discussion. Although I offer a preliminary assessment of the models, this article does not attempt to resolve the debate for all times but instead seeks to challenge the legal affinity for naked doctrine while suggesting some potential solutions to the theoretical vacuum.

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