Two Models of the Criminal Process PDF

Two Models of the Criminal Process Author(s): Herbert L. Packer Source: University of Pennsylvania Law Review, Vol. 113, No. 1 (Nov., 1964), pp. 1-68 Published by: The University of Pennsylvania Law Review Stable URL: https://www.jstor.org/stable/3310562 Accessed: 10-02-2020 14:23 UTC REFERENCES Linked references are available on JSTOR for this article: https://www.jstor.org/stable/3310562?seq=1&cid=pdf-reference#references_tab_contents You may need to log in to JSTOR to access the linked references. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms The University of Pennsylvania Law Review is collaborating with JSTOR to digitize, preserve and extend access to University of Pennsylvania Law Review This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 113 NOVEMBER 1964 No. 1 TWO MODELS OF THE CRIMINAL PROCESS * HERBERT L. PACKER f There are two more or less separable complexes of need to be investigated as one approaches the central q limits of criminal law. One complex of issues concern called the ideology of the criminal law, such as questi nature and purposes of criminal punishment. This is ge nized as relevant to what I have termed the central qu does not seem to be an equivalent recognition of the re other complex of issues, which concerns what may processes of the criminal law.2 The major premise of that the shape of the criminal process has an importa *This Article is a sketch for a portion of a work in progress criteria that a rational lawmaker should consider in determining wha to treat as criminal. Legal thought has not had much to say on th enough if by "legal thought" we mean thought about law; less still i thought by lawyers. The present Article is intended as a prolegomenon directing atte of problems necessarily affecting the behavior content of the crimin ance in this forum, given its nontechnical nature, can be explained broad construction to the "we" in Holmes's aphorism that "what time is education in the obvious more than investigation of the obsc It would be both premature and presumptuous to identify all aided in the enterprise whose first fruits are presented here. Th gratitude cannot, however, be evaded by the Dean and Faculty of Pennsylvania Law School, whose generous hospitality during a sab vided the ideal environment for pursuing the subject of these refle t Professor of Law, Stanford University. B.A. 1944, LL.B. 1949, Y Member, New York Bar. 1 See, e.g., DEVLIN, THE ENFORCEMENT OF MORALS (1959); HART AND MORALITY (1963). 2 There has been a tendency among students of the criminal procedural issues as if their resolution had nothing to do with judgm substantive uses of the criminal law, which apparently are thought See, e.g., Barrett, Police Practices and the Law-From Arrest to R 50 CALIF. L. REV. 11, 20 (1960). (1) This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 2 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 questions about the wise substantive use of the crim minor premise is that important trends in the dev criminal process that are now underway make the the uses of the criminal sanction an especially timely We will start by considering the spectrum of c least in theory open in fixing the shape of the cri by proposing a device for identifying and appraising distance between them. The device, a pair of model as a framework for considering the dynamism tha acterize present-day trends in the evolution of the Finally, after a summation of the trends and an at their continued potency, some tentative suggestion about the relevance of the criminal process to the elabo for the substantive invocation of the criminal sanction. I. VALUES AND THE CRIMINAL PROCESS A. Why Build Models? People who commit crimes appear to share the prevalent im pression that punishment is an unpleasantness that is best avoided They ordinarily take care to avoid being caught. If arrested, the ordinarily deny their guilt and otherwise try not to cooperate wi the police. If brought to trial, they do whatever their resources perm to resist being convicted. And, even after they have been convicted a sent to prison, their efforts to secure their freedom do not cease. It a struggle from start to finish. This struggle is often referred as the criminal process, a compendious term that stands for all th complexes of activity that operate to bring the substantive law of crim to bear (or to avoid bringing it to bear) on persons who are su pected of having committed crimes. It can be described, but onl partially and inadequately, by referring to the rules of law that gove the apprehension, screening, and trial of persons suspected of crim It consists at least as importantly of patterns of official activity that correspond only in the roughest kind of way to the prescriptions procedural rules. As a result of recent emphasis on empirical research into the administration of criminal justice, we are just beginning to b aware how very rough the correspondence is.3 3 See, e.g., Goldstein, Police Discretion Not To Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Criminal Justice, 69 YALE L.J. 5 (1960); LaFave, Detention for Investigation by the Police: An Analysis of Curre Practices, 1962 WASH. U.L.Q. 331. Both articles are based to some extent on ma terial gathered in the American Bar Foundation Survey of the Administration Criminal Justice in the United States. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 3 At the same time, and perhaps in part as a r accretion of knowledge, some of our lawmakin particularly the Supreme Court of the United St add measurably to the prescriptions of law that the operation of the criminal process. This accre the last few years, exponential in extent and ve with an interesting paradox: the more we learn criminal process, the more we are instructed about greater the gulf between Is and Ought appears t that very few people get adequate legal representat process; we are simultaneously told that the Co people to be afforded adequate legal representat process.4 We learn that coercion is often used to from suspected criminals; we are then told that coerced confessions may not be permitted to stand the police in gathering evidence often use meth norms of privacy protected by the fourth amendm evidence so obtained must be excluded from the criminal trial.6 But these prescriptions about how the process ought to operate do not automatically become part of the patterns of official behavior in the criminal process. Is and Ought share an increasingly uneasy co- existence. Doubts are stirred about the kind of criminal process we want to have. The kind of criminal process we have is an important determinan of the kind of behavior content that the criminal law ought rationally to comprise. Logically, the substantive question may appear to be anterior: decide what kinds of conduct one wants to reach through th criminal process, and then decide what kind of process is best calculat to deal with those kinds of conduct. It has not worked that way On the whole, the process has been at least as much a Given as th content of the criminal law. But it is far from being a Given in an rigid sense. The shape of the criminal process affects the substance of the criminal law in two general ways. First, one would want to know, before adding a new category of behavior to the list of crimes and therefore placing an additional burden on the process, whether it is easy or hard to employ the criminal process. The more expeditious the process, the greater the number of people with whom it can deal and, therefore, the greater the variety and, hence, the amount of anti- 4 Gideon v. Wainwright, 372 U.S. 335 (1963). 5 E.g., Haynes v. Washington, 373 U.S. 503 (1963); Escobedo v. Illinois, 378 U.S. 478 (1964). 6Mapp v. Ohio, 367 U.S. 643 (1961). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 4 UNIVERSITY OF' PENNSYLVANIA LAW REVIEW [Vol.113:1 social conduct that can be confided in whole or in par law for inhibition. On the other hand, the harder use, the smaller the number of people who can be han given level of resources devoted to staffing and o harder it is to put a suspected criminal in jail, the f of cases that can be handled in a year by a given num prosecutors, defense lawyers, judges and jurymen, pro etc. A second and subtler relationship exists be acteristic functioning of the process and the kinds which it can efficiently deal. Perhaps the clearest exam means the only one, is in the area of what have be victimless crimes, i.e., offenses that do not result i that he has been injured so as to impel him to bring t attention of the authorities. The offense of fornicatio In a jurisdiction where it is illegal for two persons no other to have sexual intercourse, there is a substan problem (or would be, if the law were taken serious who voluntarily have sexual intercourse do not oft have been victimized and therefore do not often c police. Consensual transactions in gambling and na the same problem, somewhat exacerbated by the f these forms of conduct rather more seriously t from the standpoint of the criminal law. To the di prehending a criminal when it is known that he has c are added the difficulties of knowing that a crime has In this sense the victimless crime always presents a to the criminal process than does the crime with an asc But this problem may be minimized if the criminal pr disposal measures that are designed to enhance the pro commission of such offenses will become known. If entrapped into committing offenses, if the police search a suspect without evidence that he has committ wiretaps and other forms of electronic surveillance becomes easier to detect the commission of offenses of this sort. But if these measures are prohibited and if the prohibitions are observed in practice, it becomes more difficult, and eventually there may come point at which the capacity of the criminal process to deal with victim- less offenses becomes so attentuated that a failure of enforcement occurs. In both of these ways, the characteristics of the criminal process bear a relationship to the central question of what the criminal law is good for. Both a general assessment of whether that process is a high-speed or a low-s;eed :::.strumen.t of social control: and a series of This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 5 specific assessments of its fitness for the handling of of antisocial behavior are called for if we are to have a basis for elab- orating the criteria that ought to affect the invocation of the criminal sanction. How can we provide ourselves with an estimate of the criminal process that pays due regard to its static and dynamic ele- ments? There are, to be sure, aspects of the criminal process that vary only inconsequentially from place to place and from time to time. But its dynamism is clear-clearer today, perhaps, than ever before. We need to have an idea of the potentialities for change in the system and the probable direction that change is taking and may be expected to take in the future. We need to detach ourselves from the welter of more or less connected details that make up an accurate description of the myriad ways in which the criminal process does operate or ma be likely to operate in midtwentieth-century America so that we begin to appraise the system as a whole in terms of its capacity deal with the variety of substantive missions we confide to it. One way to do this kind of job is to abstract from reality, build a model. In a sense that is what an examination of the constitu- tional and statutory provisions that govern the operation of the criminal process would produce. This, in effect, is the way analysis of the legal system has traditionally proceeded. The method has considerable utility as an index of current value choices; but it produces a model that will not tell us very much about some important problems that the system encounters and that will only fortuitously tell us anything useful about how the system actually operates. On the other hand, the kind of model that might emerge from an attempt to cut loose from the law on the books and to describe, as accurately as possible, what actually goes on in the real-life world of the criminal process would so sub- ordinate the inquiry to the tyranny of the actual that the existence of competing value choices would be obscured. The kind of criminal process we have depends importantly on certain value choices that are reflected, explicitly or implicitly, in its habitual functioning. The kind of model we need is one that permits us to recognize explicitly the value choices that underlie the details of the criminal process. In a word, what we need is a normative model, or rather two models, to let us perceive the normative antinomy that runs deep in the life of the criminal law. These models may not be labelled Good and Bad, and I hope they will not be taken in that sense. Rather, they represent an attempt to abstract two separate value systems that compete for attention in the operation of the criminal process. Neither is pre- sented as either corresponding to reality or as representing what the criminal process ought to be. The two models merely afford a con- This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 6 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 venient way to talk about the operation of a proces functioning involves a constant series of minute ad the competing demands of two value systems an future likewise involves a series of resolutions, o magnitude, of the tensions between mutually exclu I call these two models the Due Process Model and the Crime Control Model. In the next section I shall sketch their animat presuppositions, and in succeeding sections I shall present the models as they apply to a selection of representative problems arise at successive stages of the criminal process. As we examin succession this sampling of stage and substage of the criminal proc on which the models operate, we will move from the description o model stages to two further inquiries: first, where on a spectrum tween the extremes represented by the two models do our pre practices seem approximately to fall; second, what appears to b direction and thrust of current and foreseeable trends along each spectrum ? There is a risk in an enterprise of this sort that is latent in attempt to polarize. It is, simply, that values are too various pinned down to yes or no answers. When we polarize, we dist The models are, in a sense, distortions. The attempt here is on clarify the terms of discussion by isolating the assumptions that un lie competing policy claims and examining the conclusions to w those claims, if fully accepted, would lead. This Article does not m value choices, but only describes what are thought to be t consequences. B. Values Underlying the Models In this section we shall develop two competing systems of values, the tension between which accounts for the intense activity now observable in the development of the criminal process. The models we are about to examine attempt to give operational content to these conflicting schemes of values. Like the values underlying them, the models are polarities. Just as the models are not to be taken as describing real-world situations, so the values that underlie them are not to be regarded as expressing the values held by any one person. The values are presented here as an aid to analysis, not as a program for action. 1. Some Common Ground One qualification needs to be made to the assertion of polarity in the two models. While it would be possible to construct models tha exist in an institutional vacuum, it would not serve our purposes t This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 7 do so. We are not postulating a criminal proces any kind of society at all, but rather one that framework of contemporary American society. of room for polarization, but it does require the limits. A model of the criminal process that relatively stable and enduring features of the Am would not have much relevance to our central ta these elements of stability and continuity can be ro minimal agreed limits expressed in the Constit States and, more importantly, with unarticulated a be perceived to underlie those limits. Of course, Constitution is constantly appealed to by propon of many measures that affect the criminal pro naive would deny that there are few conclusive p reached by appeal to the Constitution. Yet assump the criminal process that are widely shared and tha common ground for the operation of any mode process. Our first task is to clarify these assumptio First, there is the assumption implicit in the ex of the Constitution 7 that the function of defining be treated as criminal is separate from and ant of identifying and dealing with persons as crim narrow the definition of criminal conduct must question of policy that yields highly variant result values held by those making the relevant decisio must be a means of definition that is in some sense anterior to the operation of the process is clear. our efforts to deal with the phenomenon of org appear ludicrous indeed (which is not to say tha means exhausted the potentialities for dealing with the limits of this basic assumption). A related assumption that limits the area of c the criminal process ordinarily ought to be invoked with the responsibility for doing so when it appear been committed and that there is a reasonable prosp ing and convicting its perpetrator. Although th prosecutorial discretion not to invoke the crimin strably broad, it is common ground that these offi dispensing power. If the legislature has decided t is to be treated as criminal, the decision-makers at 7 U.S. CONST. art. 1, ? 9. 8 See Note, The Void-for-Vagueness Doctrine in the Supr L. REV. 67 (1960). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 8 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 criminal process are expected to accept that basic de for action. The controversial nature of the occasional case in which that is not the role played by the relevant decision-makers only serv to highlight the strength with which the premise holds.9 This assum tion may be viewed as the other side of the ex post facto coin. J as conduct that is not proscribed as criminal may not be dealt with i the criminal process, so must conduct that has been denominated criminal be so treated by the participants in the process.'1 Next, there is the assumption that there are limits to the power of government to investigate and apprehend persons suspected committing crimes. I do not refer to the controversy (settled recent at least in broad outline) as to whether the fourth amendment's p hibitions against unreasonable searches and seizures applies to th states with equal force as to the federal government.l Rather, I refer to the general assumption that there is a degree of scrutiny an degree of control that have to be exercised with respect to the activit of law enforcement officers, that the security and privacy of the in vidual may not be invaded at will. It is possible to imagine a soci in which not even lip service is paid to this assumption. N Germany approached but never quite reached this position. But one in our society would maintain that every individual may be take into custody at any time and held without any limitation of ti during the process of investigating his possible commission of crime or that there should be no form of redress for violation of at least some standards for official investigative conduct. Although this assumption may not appear to have much in the way of positive content, its ab- sence would render moot some of our most hotly controverted prob- lems. If there were not general agreement that there must be some limits on police power to detain and investigate, the very contro- versial provisions of the Uniform Arrest Act,'2 permitting the police to detain for questioning for a short period even though they do not have grounds for making an arrest, would be a magnanimous con- cession by the all-powerful state rather than, as it is now perceived, a substantial expansion of police power. Finally, there is a complex of assumptions embraced within terms like "the adversary system," "procedural due process," "notice and an opportunity to be heard," "day in court," and the like. Common to them all is the notion that the alleged criminal is not merely an object to be acted upon, but an independent entity in the process who may, 9E.g., Poe v. Ullman, 367 U.S. 497 (1961). 0 HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 382-87 (2d ed. 1960). 11 Mapp v. Ohio, 367 U.S. 643 (1961); Ker v. California, 374 U.S. 23 (1963). 12 See pp. 28-29 infra. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 9 if he so desires, force the operators of the process to de independent authority (judge and jury) that he is guilty against him. It is a minimal asumption. It speaks in t not "must." It permits but does not require the accu himself or through his own agent, to play an act process; by virtue of that fact, the process becomes or h to become a contest between, if not equals, at least indep Now, as we shall see, much of the space between the occupied by stronger or weaker notions of how this c arranged, how often it is to be played, and by what r Control Model tends to deemphasize this adversary process; the Due Process Model tends to make it centr ground, and it is an important one, is that the process ha subjected to it, at least the potentiality of becoming an adversary struggle. So much for common ground. There is a good de on the narrowest view. Its existence should not be ove it is, by definition, what permits partial resolutions of tween the two models to take place. The rhetoric of process consists largely of claims that disputed terri common ground; that, for example, the premise of an ad "necessarily" embraces the appointment of counsel for e of crime, or conversely, that the obligation to pursu pected of committing crimes "necessarily" embraces i suspects without the intervention of counsel. We ma gently at such claims; they are rhetoric and no more in which they are made suggests an important truth common ground of value assumption about the crimi makes continued discourse about its problems possibl 2. Crime Control Values The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by the most important function to be performed by the criminal proce The failure of law enforcement to bring criminal conduct under tigh control is viewed as leading to the breakdown of public order an thence to the disappearance of an important condition of human free dom. If the laws go unenforced, which is to say, if it is perceived th there is a high percentage of failure to apprehend and convict in criminal process, a general disregard for legal controls tends to devel The law-abiding citizen then becomes the victim of all sorts of u justifiable invasions of his interests. His security of person and prop This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 10 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 erty is sharply diminished and, therefore, so is his li a member of society. The claim ultimately is that th is a positive guarantor of social freedom.13 In ord high purpose, the Crime Control Model requires that be paid to the efficiency with which the criminal pr screen suspects, determine guilt, and secure appro of persons convicted of crime. Efficiency of operation is not, of course, a crit applied in a vacuum. By "efficiency" we mean the to apprehend, try, convict, and dispose of a high pro offenders whose offenses become known. In a soc the grossest forms of antisocial behavior were ma which the crime rate was exceedingly low, the crimi require many more man-hours of police, prosecutori per case than ours does, and still operate with tolera the other hand, a society that was prepared to inc the resources devoted to the suppression of crim a rising crime rate without sacrifice of efficiency w maintain an elaborate and time-consuming set of However, neither of these hypotheses corresponds in this country. We use the criminal sanction to cov wide spectrum of behavior thought to be antisoci of crime is very large indeed. At the same time, wh are not available, it does not appear that we are dispo sector of the economy to increase very drastically th less the quality, of the resources devoted to the supp activity through the operation of the criminal pr have an important bearing on the criteria of efficien on the nature of the Crime Control Model. The model, in order to operate successfully, must produce a high rate of apprehension and conviction and must do so in a context where the magnitudes being dealt with are very large, and the resources for dealing with them are very limited. There must then be a premium on speed and finality. Speed, in turn, depends on informality and on uniformity; finality depends on minimizing the occasions for challenge. The process must not be cluttered with ceremonious rituals that do not advance the progress of a case. Facts can be established more quickly through interrogation in a police station than through the formal process of examination and cross-examination in a court; it follows that extrajudicial processes should be preferred to judicial processes, informal to formal operations. Informality is not enough; there must 13 For a representative statement see Barrett, supra note 2, at 11-16. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 11 also be uniformity. Routine stereotyped procedu large numbers are being handled. The model successfully on these presuppositions must be an adm a managerial, model. The image that comes to m line or a conveyor belt down which moves an endles never stopping, carrying the cases to workers who s tions and who perform on each case as it comes by t essential operation that brings it one step closer product, or, to exchange the metaphor for the reality The criminal process, on this model, is seen as a s in which each successive stage-prearrest investiga arrest investigation, preparation for trial, trial or e viction, and disposition-involves a series of rout whose success is gauged primarily by their tenden along to a successful conclusion. What is a successful conclusion? One that throws off at an early stage those cases in which it appears unlikely that the apprehended is an offender and then secures, as expeditious possible, the conviction of the rest with a minimum of occasi challenge, let alone postaudit. By the application of adminis expertness, primarily that of the police and prosecutors, an determination of probable innocence or guilt emerges. The p innocent are screened out. The probably guilty are passed qu through the remaining stages of the process. The key to the tion of the model as to those who are not screened out is what I shall call a presumption of guilt. The concept requires some explanation since it may appear startling to assert that what appears to be t precise converse of our generally accepted ideology of a presumpti of innocence can be an essential element of a model that does corre- spond in some regards to the real-life operation of the criminal process The presumption of guilt allows the Crime Control Model to deal efficiently with large numbers. The supposition is that t screening processes operated by police and prosecutors are reliab indicators of probable guilt. Once a man has been investigated with out being found to be probably innocent, or, to put it differently, onc a determination has been made that there is enough evidence of gu so that he should be held for further action rather than released from the process, then all subsequent activity directed toward him is based on the view that he is probably guilty. The precise point at which this occurs will vary from case to case; in many cases it will occur as soon as the suspect is arrested or even before, if the evidence of probable guilt that has come to the attention of the authorities is This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 12 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 sufficiently strong. But in any case, the presumption to operate well before the "suspect" becomes a "defen The presumption of guilt is not, of course, a even a rule of law in the usual sense. It simply exe of attitudes, a mood. If there is confidence in the formal administrative factfinding activities that early stages of the criminal process, the remaini process can be relatively perfunctory without any efficiency. The presumption of guilt, as it opera Control Model, is the expression of that confidence. It would be a mistake to think of the presumption opposite of the presumption of innocence that w thinking of as the polestar of the criminal process shall see, occupies an important position in the D The presumption of innocence is not its opposite; the presumption of guilt; the two concepts embod than opposite ideas. The difference can perhaps be example. A murderer, for reasons best known to h shoot his victim in plain view of a large number of p police arrive, he hands them his gun and says: glad." His account of what happened is corroborat witnesses. He is placed under arrest and led off to circumstances, which may seem extreme but wh acterize with rough accuracy the factfinding situ proportion of criminal cases, it would be plainly a that more probably than not the suspect did not c But that is not what the presumption of innocenc that until there has been an adjudication of guilt legally competent to make such an adjudication, th treated, for reasons that have nothing whatever to do outcome of the case, as if his guilt is an open questio The presumption of innocence is a direction to of are to proceed, not a prediction of outcome. The guilt, however, is basically a prediction of outcome of innocence is really a direction to the authorities t sumption of guilt in their treatment of the suspect. effect, to close their eyes to what will frequently probabilities. The reasons why it tells them th animating presuppositions of the Due Process Mo come to them shortly. It is enough to note at th presumption of guilt is descriptive and factual; th innocence is normative and legal. The pure Crime Con This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 13 unacceptable the presumption of innocence altho its real-life emanations are brought into uneasy com dictates of this dominant ideological position. F presumption of guilt assures the dominant goal through highly summary processes without any gr (as previously defined), for in the run of cases, the ing processes operated by the police and the prosec tain adequate guarantees of reliable factfinding. Ind a stronger one. It is that subsequent processe formal adjudicatory nature, are unlikely to prod finding as the expert administrative process that criminal process thus must put special weight on th trative factfinding. It becomes important, then strictions as possible on the character of the admin processes and to limit restrictions to those that excluding those designed for other purposes. A desire to avoid restrictions on administrative factf theme in the development of the Crime Control For this model the early administrative factf centrally vital. The complementary proposition is t stages are relatively unimportant and should be t possible. This, too, produces tensions with pr ideology. The pure Crime Control Model has many conspicuous features of the adjudicative pr works a number of ingenious compromises with model, however, there have to be devices for dealin after the preliminary screening process has resulte of probable guilt. The focal device, as we shal guilty; through its use adjudicative factfinding i mum. It might be said of the Crime Control Mo its barest essentials and when operating at its m it consists of two elements: (a) an administrative leading to exoneration of the suspect, or to (b) of guilty. 3. Due Process Values If the Crime Control Model resembles an assembly line, t Process Model looks very much like an obstacle course. Each successive stages is designed to present formidable impedime carrying the accused any further along in the process. Its ide not the converse of that underlying the Crime Control Mod does not deny the social desirability of repressing crime, althoug critics have been known to claim so. Its ideology is compose This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 14 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 complex of ideas, some of them based on judgments of crime control devices. The ideology of due pr deeply impressed on the formal structure of the law of crime control; yet, an accurate tracing of the str made is strangely difficult.14 What follows is on approximation. The Due Process Model encounters its rival on the Crime Con- trol Model's own ground in respect to the reliability of factfin processes. The Crime Control Model, as we have suggested preliminary way, places heavy reliance on the ability of investig and prosecutorial officers, acting in an informal setting in which distinctive skills are given full sway, to elicit and reconstruct a tole accurate account of what actually took place in an alleged crim event. The Due Process Model rejects this premise and substit for it a view of informal, nonadjudicative factfinding that str the possibility of error: people are notoriously poor observers o turbing events-the more emotion-arousing the context, the greate possibility that recollection will be incorrect; confessions and a sions by persons in police custody may be induced by physica psychological coercion, so that the police end up hearing wha suspect thinks they want to hear rather than the truth; witnesses be animated by a bias or interest that no one would trouble to disc except one specially charged with protecting the interests of accused-which the police are not. Considerations of this kin lead to the rejection of informal factfinding processes as definitiv factual guilt and to the insistence on formal, adjudicative, adve factfinding processes in which the factual case against the accu publicly heard by an impartial tribunal and is evaluated only after accused has had a full opportunity to discredit the case against Even then the distrust of factfinding processes that animates the Process Model is not dissipated. The possibilities of human being what they are, further scrutiny is necessary, or at least mu available, lest in the heat of battle facts have been overlooked suppressed. How far this subsequent scrutiny must be availab hotly controverted today; in the pure Due Process Model the an would be: at least as long as there is an allegation of factual error has not received an adjudicative hearing in a factfinding contex demand for finality is thus very low in the Due Process Model. This strand of due process ideology is not enough to sustain m.odel. It all that were at issue between the two models was a series of 14 For a perceptive account dealing with a wider spectrum of problems than those posed by the criminal process, see Kadish, Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 YALE L.J. 319 (1957). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 15 questions about the reliability of factfinding process but one model of the criminal process, the natu stituent elements would pose questions of fact, not o discussion is confined for the moment to the questio is apparent that more is at stake than simply an kinds of factfinding processes, alone or in combin produce the most nearly reliable results. The stum how much reliability is compatible with efficien informal factfinding will make some mistakes that backed up by adjudicative factfinding, the desirability backup is not affirmed or negated by factual dem dictions that the increase in reliability will be x p percent. It still remains to ask how much weight is competing demands of reliability (a high degree of p case that factual guilt has been accurately determine (a process that deals expeditiously with the larg that it ingests). Just as the Crime Control Model about the unlikelihood of error in a significant num also more lenient in establishing a tolerable level Process Model insists on the prevention and eliminat the extent possible; the Crime Control Model acce of mistakes up to the level at which they interfe repressing crime, either because too many guilty or, more subtly, because general awareness of the un process leads to a decrease in the deterrent efficacy o On this view reliability and efficiency are not p rather complementary characteristics. The system efficient; reliability becomes a matter of independent it becomes so attenuated as to impair efficiency. Process Model rejects. If efficiency suggests sho liability, those demands must be rejected. The aim at least as much to protect the factually innocent as factually guilty. It somewhat resembles quality co technology: tolerable deviation from standard var tance of conformity to standard in the destined u The Due Process Model resembles a factory that h stantial part of its input to quality control. This quantitative output. This is only the beginning of the ideological di the two models. The Due Process Model could dis to provide enhanced reliability for the factfindin produce a set of institutions and processes that w This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 16 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 from those posited by the demands of the Crime Co deed, it may not be too great an oversimplification t point of historical development the doctrinal press emanated from the demands of the Due Process Model have tended to evolve from an original matrix of concern with the maximization reliability into something quite different and more far-reaching.l5 T complex of values can be symbolized although not adequately describ by the concept of the primacy of the individual and the complementa concept of limitation on official power. The combination of stigma and loss of liberty that is embod in the end result of the criminal process is viewed as being the heav deprivation that government can inflict on the individual. Furth more, the processes that culminate in these highly afflictive sanctio are in themselves coercive, restricting, and demeaning. Power i always subject to abuse, sometimes subtle, other times, as in th criminal process, open and ugly. Precisely because of its potency subjecting the individual to the coercive power of the state, the crim inal process must, on this model, be subjected to controls and sa guards that prevent it from operating with maximal efficiency. Acco ing to this ideology, maximal efficiency means maximal tyranny. An while no one would assert that minimal efficiency means minim tyranny, the proponents of the Due Process Model would accept w considerable equanimity a substantial diminution in the efficiency w which the criminal process operates in the interest of preventing of cial oppression of the individual. The most modest-seeming but potentially far-reaching mechanis by which the Due Process Model implements these antiauthoritar values is the doctrine of legal guilt. According to this doctrine individual is not to be held guilty of crime merely on a showing tha in all probability, based upon reliable evidence, he did factually w he is said to have done. Instead, he is to be held guilty if and o if these factual determinations are made in procedurally regula fashion and by authorities acting within competences duly alloca to them. Furthermore, he is not to be held guilty, even though factual determination is or might be adverse to him, if various r designed to safeguard the integrity of the process are not give effect: the tribunal that convicts him must have the power to d with his kind of case ("jurisdiction") and must be geographically 15 It is instructive to compare, for example, the emphasis on diminished reliabili in early coerced confession cases like Brown v. Mississippi, 297 U.S. 278 (193 with the subsequent development of a rationale that stresses the assertedly lim roles assigned to the state and the accused in an adversary system, e.g., Roger Richmond, 365 U.S. 534 (1961). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 17 propriate ("venue"); too long a time must not have el offense was committed ("statute of limitations"); he been previously convicted or acquitted of the same or similar offense ("double jeopardy"); he must not fal gory of persons, such as children or the insane, who mune to conviction ("criminal responsibility"); and these requirements has anything to do with the fact whether he did or did not engage in the conduct tha the offense against him; yet favorable answers to an mean that he is legally innocent. Wherever the comp adequate factual determinations lies, it is apparent that that is aware of these guilt-defeating doctrines and is w them can be viewed as competent to make determination The police and the prosecutors are ruled out by lack the first instance and by lack of assurance of willingnes Only an impartial tribunal can be trusted to make de legal as opposed to factual guilt. In this concept of legal guilt lies part of the explanat parently quixotic presumption of innocence of which w A man who after police investigation is charged wit mitted a crime can hardly be said to be presumptively in we mean is factual innocence. But if any of a myriad of may be appropriately invoked to exculpate this partic is apparent that as a matter of prediction it cannot b confidence that more probably than not he will be foun Beyond the question of predictability this model tional reason for observing the presumption of innocen the state to prove its case against the accused in an a text, the presumption of innocence serves to force i qualifying and disabling doctrines that limit the use sanction against the individual, thereby enhancing his o secure a favorable outcome. In this sense the presumptio may be seen to operate as a kind of self-fulfilling proph ing up a procedural situation that permits the success defenses that have nothing to do with factual guilt, i proposition that the factually guilty may nonetheless be and should therefore be given a chance to qualify of treatment. The possibility of legal innocence is expanded enormously when the criminal process is viewed as the appropriate forum for correcting its own abuses. This notion may well account for a greater amount of the distance between the two models than any other. In theory the This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 18 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 Crime Control Model can tolerate rules that forbid ille reasonable searches, coercive interrogations, and the forcement is left primarily to managerial sanctions int What it cannot tolerate is the vindication of those rules in the criminal process itself through the exclusion of evidence illegally obtained or through the reversal of convictions in cases where the criminal process has breached the rules laid down for its observance. The availability of these corrective devices fatally impairs the efficiency of the process. The Due Process Model, while it may in the first instance be addressed to the maintenance of reliable factfinding techniques, comes eventually to incorporate prophylactic and deterrent rules that result in the release of the factually guilty even in cases in which blotting out the illegality would still leave an adjudicative factfinder convinced of the accused's guilt.6l Another strand in the complex of attitudes that underlies the Due Process Model is the idea-itself a shorthand statement for a complex of attitudes-of equality. This notion has only rec emerged as an explicit basis for pressing the demands of the Process Model, but it appears to represent, at least in its poten most powerful norm for influencing official conduct. Stated starkly, the ideal of equality holds that "there can be no equal where the kind of trial a man gets depends on the amount of m he has." 17 The factual predicate underlying this assertion is that ther gross inequalities in the financial means of criminal defendan class, that in an adversary system of criminal justice, an eff defense is largely a function of the resources that can be mustere behalf of the accused, and that a very large proportion of cri defendants are, operationally speaking, "indigent" 18 in terms of ability to finance an effective defense. This factual premise ha strongly reinforced by recent studies that in turn have been b cause and an effect of an increasing emphasis upon norms fo criminal process based on the premise. The norms derived from the premise do not take the form of insistence upon governmental responsibility to provide litera.ly 16 This tendency, seen most starkly in the exclusionary rule for illegally evidence, Mapp v. Ohio, 367 U.S. 643 (1961), is also involved in the rejection "special circumstances" approach to testing the deprivation of counsel, Gideon v. Wainwright, 372 U.S. 335 (1963), and in the apparently similar trend in confession cases, Mallory v. United States, 354 U.S. 449 (1957); Escobedo v. Illinois, 378 U.S. 478 (1964). 17 Griffin v. Illinois, 351 U.S. 12, 19 (1956). 18 The vacuity of the concept of indigence is exposed in ATT'Y GEN. COMM. ON POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE, REPORT 7-8, 40-41 (1963) [hereinafter cited as ATT'Y GEN. REP.]. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 19 opportunities for all criminal defendants to ch Rather, they take as their point of departure the n inal process, initiated as it is by government and co the likelihood of severe deprivations at the hands o poses some kind of public obligation to ensure that does not destroy the capacity of an accused to a meritorious challenges to the processes being inv The demands made by a norm of this kind are li nature to be quite sweeping. Although its im initially limited to determining whether in a partic was injured or prejudiced by his relative inability priate challenge, the norm of equality very quick level on which the demand is that the process in to minimize discriminations rather than that a mer determinations of discrimination be made or makea It should be observed that the impact of the e vary greatly depending upon the point in time a duced into a model of the criminal process. If one w scratch to decide how the process ought to work, t would have nothing very important to say on su example, whether an accused should have the eff counsel in deciding whether to enter a plea o decide, on quite independent considerations, that it thing to afford that facility to the generality o crime. But the impact of the equality norm become it is brought to bear on a process whose contour shaped. If our model of the criminal process affo are in a financial position to consult a lawyer be the right to do so, then the equality norm exerts p provide such an opportunity to all defendants and t to do so as a malfunctioning of the process from the accused is entitled to be relieved. In a sense role of the equality norm in affecting the real-wor It has made its appearance on the scene comparat therefore encountered a situation in which, in term it operates, the relative financial inability of most crime sharply distinguishes their treatment from of the financially capable. For that reason its impac substantial and may be expected to be even more so 1s E.g., id. at 8-11. 2o Griffin v. Illinois, 351 U.S. 12 (1956), is generally regar decision of the Supreme Court explicitly and exclusively g norm. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 20 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 There is a final strand of thought in the Due Proces presence is often ignored but which needs to be ca thought on the subject is not to be obscured. Th skepticism about the morality and the utility of the cr taken either as a whole or in some of its application a large and complicated one, comprehending as it do intellectual history of our times.21 To put the matt cannot improve upon the statement by Professor Pau [I]n summary we are told that the criminal law of just condemnation and punishment is a cruel visited by a smug society on the psychologically and ically crippled; that its premise of a morally autono with at least some measure of choice whether to com the values expressed in a penal code is unscientfi moded; that its reliance on punishment as an educat deterrent agent is misplaced, particularly in the c very members of society most likely to engage in conduct; and that its failure to provide for individu humane rehabiliation of offenders is inhuman and w This skepticism, which may be fairly said to be wi the most influential and articulate of contemporary lead opinion, leads to an attitude toward the processes of which, to quote Mr. Bator again, engenders a peculiar receptivity toward claims of injustice w within the traditional structure of the system itsel mental disagreement and unease about the very ba criminal law has, inevitably, created acute pressu to expand and liberalize those of its processes and which serve to make more tentative its judgment its power.23 In short, doubts about the ends for which power is being exercised create pressure to limit the discretion with which that power is exercised. The point need not be pressed to the extreme of doubts about or rejection of the premises upon which the criminal sanction in gen- eral rests. Unease may be stirred simply by reflection on the variety of uses to which the criminal sanction is put and by judgment that an increasingly large proportion of those uses may represent an unwise 21 A portion of the work in progress of which this paper is a part is concerned with the impact of modern skeptical doubts on the ideology of the criminal law. 22 Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prison- ers, 76 HARV. L. REV. 441, 442 (1963). 23 Id. at 442-43. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 21 invocation of so extreme a sanction.24 It would be an if doubts about the utility of certain uses of the crim to contribute to a restrictive trend in the criminal p end requires a choice among uses and finally an aban of the very uses that stirred the original doubts. There are two kinds of problems that need to any model of the criminal process. One is what The other is how the rules shall be implemented least as important as the first. As we shall see tim detailed development of the models, the distinctive d the two models is not only in the rules of conduct t but also in the sanctions that are to be invoked w sented that the rules have been breached and, no l the timing that is permitted or required for the sanctions. As I have already suggested, the Due Process Model locates at least some of the sanctions for breach of the operative rules in the criminal process itself. The relation between these two aspects of the process-the rules and the) sanctions for their breach-is a purely formal one unless there is some mechanism for bringing them into play with each other. The hinge between them in the Due Process Model is the availability of legal counsel. This has a double aspect: many of the rules that the model requires are couched in terms of the availability of counsel to do various things at various stages of the process-this is the conventionally recognized aspect; beyond it, there is a pervasive assumption as to the necessity for counsel in order to invoke sanctions for breach of any of the rules. The more freely available these sanctions are, the more important is the role of counsel in seeing to it that the sanctions are appropriately invoked. If the process is seen as a series of occasions for checking its own operation, the role of counsel is a much more nearly central one than is the case in a process that is seen as primarily concerned with expeditious deter- mination of factual guilt. And if equality of operation is a governing norm, the availability of counsel to some is seen as requiring it for all. Of all the controverted aspects of the criminal process, the right to counsel, including the role of government in its provision, is the most dependent on what one's model of the process looks like, and the least susceptible of resolution unless one has confronted the antinomies of the two models. I do not mean to suggest that questions about the right to counsel disappear if one adopts a model of the process that conforms more or 24 See pp. 66-68 infra. This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 22 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 less closely to the Crime Control Model, but only become absolutely central if one's model moves v spectrum of possibilities toward the pure Due Pr reason for this centrality is to be found in the underlying both models that the process is an adver the initiative in invoking relevant rules rests primar concerned, the state and the accused. One could that placed central responsibility on adjudicative a mitting magistrates and trial judges. And there a marginal but nonetheless important adjustments adjudicative agents that enter into the models w concerned.25 For present purposes it is enough to justments are marginal, that the animating presuppo lie both models in the context of the American crim gate the adjudicative agents to a relatively passive place central importance on the role of counsel. One last introductory note. What assumpti about the sources of authority to shape the real-wor criminal process? What agencies of government pick and choose between their competing demand limiting features of the American context come not a system of legislative supremacy. The distin institution of judicial review exercises a limiting shaping influence on the criminal process. Because Model is basically an affirmative model, emphasizing existence and exercise of official power, its valid ultimately legislative (although proximately admi the Due Process Model is basically a negative mod on the nature of official power and on the modes validating authority is judicial and requires an legislative law, to the law of the Constitution. T tensions between the two models are resolved by def Process Model, the authoritative force at work is working in the distinctively judicial mode of invokin nullity. That is at once the strength and the we Process Model: its strength because in our system Constitution provides the last and the overriding because saying no in specific cases is an exercise in f is a general willingness on the part of the officia process to apply negative prescriptions across th accident that statements reinforcing the Due Process 25 As, for example, in the role of judge in the plea of guilt This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 23 the courts while at the same time facts denying it are the police and prosecutors. II. THE MODELS IN OPERATION We turn now to some details of the Crime Control and Due Process Models. This is an effort, first, to convey a sense of the extraordinary complexity of the criminal process, no matter which model one visualizes as corresponding more closely to reality; even the Crime Control Model is a formidable consumer of human re- sources. Again, we shall try to document the existence throughout the process of recurrent themes that divide the two models, posing an essentially limited number of basic choices for shaping its real-life structure. Finally, this assortment of instances will serve to document the minor premise of the Article: that the present real-world criminal process tends by and large to resemble the Crime Control Model but that the current trend is pushing it a significant distance down the spectrum toward the Due Process Model. There are various ways of dividing the criminal process for purposes of description and analysis. We shall view it as consisting of three major stages or periods: the period from arrest through the decision to charge the suspect with a crime; the period from the decision to charge through the determination of guilt; and the stage of review and correction of errors that have occurred during the earlier periods. From the first period I have chosen two problems to illustrate the contrasting requirements of the two models: arrests for investigation, and detention and interrogation after a "lawful" arrest. From the second period I have again selected two problems: pretrial detention and the plea of guilty. From the third stage I have selected problems of direct appeal and collateral attack that raise issues of equality of access to the courts, of the special problems of criminal justice in a federal system, and of retroactivity in the application of changed norms in the criminal process. Finally, there is a postscript on the pervasive and strategically crucial problem of access to counsel. The themes here dealt with could be developed through applica- tion of the model technique to many other problems of the criminal process, including electronic surveillance, discovery in criminal cases, the presentation of the insanity defense, and the institution of the jury trial. As to each of these, and others as well, it can be asserted with some confidence that the antinomies of the two models show up in the same or similar form as those chosen for discussion, and also that an examination of the situation and the trend would produce This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 24 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 conclusions in line with those reached on the basis of t presented here. A. From Arrest to Charge 1. Arrests for Investigation The act of taking a person into physical custody is ordi- narily spoken of as an arrest. The term "arrest" carries with it important legal consequences, so that great controversy attends the question whether certain forms of physical restraint, such as stopping a person on the street for questioning, or taking him to the station house for a brief period of questioning without then and there intending to prefer any particular charge against him, is "really" an arrest. Since our discussion of the competing norms will refer to a number of different kinds of restraining conduct that may or may not be thought of as desirable depending on the dictates of the particular model, there is no reason not to refer indifferently to all of them as arrests, with the understanding that the term is used in the sense of physical description, not of operational legal norm. Two crucial issues arise at this stage of the process: (1) on what basis are the police entitled to make an arrest, and (2) what conse- quences, if any, will flow from their making an "illegal" arrest? These are the issues that divide our two polar models, and that may in addition be thought of as representing a paradigm of the kind of division that will occur over numerous other issues that arise in the process of investigation and apprehension. The Crime Control Model. Of course the police should be entitled to arrest a person when they have probable cause to think that he has committed a particular criminal offense, but it would be absurd to sug- gest that an arrest is permissible only in that situation. The slight in- vasion of personal freedom and privacy involved in stopping a person on the street to ask him questions, or even taking him to the station house for a period of questioning and other investigation, is justified in a wide variety of situations that only by the exercise of hypocrisy could be described as involving "probable cause." To give only a few examples: (1) people who are known to the police as previous offenders should be subject to arrest at any time for the limited purpose of deter- mining whether they have been engaging in antisocial activities, espe- cially when a crime has taken place of the sort they have committed in the past and it is known that it was physically possible for them to have committed it; (2) anyone who behaves in a way that arouses sus- picion that he may be up to no good should be subject to arrest for This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 25 investigation; it may turn out that he has committe more importantly, the very fact of stopping him for on the street or at the station house, may prevent t a crime; (3) those who make a living out of crimi be made to realize that their presence in the commu they persist in their criminal occupations; period activity, whether or not they involve an arrest, wil attitude home to them. In short, the power of the police to arrest people for the purpose of investigation and prevention is one that must exist if the police are to do their job properly; the only question is whether arrests for in- vestigation and prevention should be made hypocritically and deviously, or openly and avowedly. It causes disrespect for law when there are great deviations between what the law on the books authorizes the police to do and what everyone knows they actually do. The police have no reason to abuse this power by arresting and holding law-abiding people. The innocent have nothing to fear. It is enough of a check on police discretion to let the dictates of police efficiency determine under what circumstances and for how long a person may be stopped and held for investigation. But if laws are thought to be required limiting police discretion to make an arrest, they should either provide very liberal outer limits so as to accommodate all possible cases or, preferably, should require nothing more explicit than behavior that is reasonable under all the circumstances. The question of appropriate sanctions for breach of whatever rules are devised to limit police arrest powers is, as a practical matter, at least as important to the ends of crime control as is the nature of the substantive rules themselves. The most appropriate sanction is discipline of the offending policemen by those best qualified to judge whether his conduct has lived up to professional police standards-his superiors in the police department. Discipline by his superiors may make him a better policeman; in cases where that seems improbable, he should be dismissed from the force. Civil remedies for the arrested person, administered in the ordinary courts, are also a possibility, al- though they are less likely to serve the end of educating the erring police officer. The one kind of sanction that should be completely inadmissible is the kind that takes place in the criminal process itself: dismissal of prosecution, suppression of evidence, etc. That kind of sanction for police misconduct simply gives the criminal a windfall without affecting the conduct of the erring police. This is particularly true in the light of the fact that any set of rules for the governance of police conduct is apt to be quite technical, leading to a certain This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 26 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 number of good faith mistakes.26 The policeman mistake may never know or be only dimly aware that h sulted in a criminal's going free. His own conduct likely to be changed by measures that affect him person do not have the fortuitous effect of conferring benefit and thus reducing the effectiveness of law enforcement There are, generally speaking, two kinds of devic the police adequate scope in making arrests for inve first is what might be called the direct method: expli broad powers to stop and question persons, irrespective o are reasonably suspected of having committed a partic second is the indirect method: framing broad enough criminal conduct to give the police the power to arrest "probable cause" basis a wide variety of people who suspicious conduct. Vagrancy laws, disorderly con laws making it a crime not to give an account of one to police interrogation are all examples. It is not too imp of these methods is used; often a combination of the tw the desired result. The Due Process Model. It is a basic right of free men-basic in the sense that his other rights depend upon it-not to be subject to physical restraint except for good cause. The only measurable stand- ard of cause is the time-honored prescription that no one may be arrested except upon a determination-preferably made independently by a magistrate in deciding whether to issue a warrant, but in situations of necessity by a police officer acting upon probative data subject to subsequent judicial scrutiny-that a crime has probably been com- mitted, and that he is the person who probably committed it. Any less stringent standard opens the door to the probability of grave abuse, as repeated investigations of police practices have shown. A society that covertly tolerates indiscriminate arrest is hypocritical; but one that approves its legality is well on the way to becoming totali- tarian in nature. It is far from demonstrable that broad powers of arrest for investigation are necessary to the efficient operation of the police The argument that they are necessary is open to a serious charge o inconsistency since it is also argued that changes in the law ar necessary to bring it into conformity with prevalent though un acknowledged practices. If arrests for investigation are actually no 26 See the famous mot of Mr. Justice Cardozo in People v. Defore, 242 N.Y. 1 21, 150 N.E. 585, 587 (1926): "the criminal is to go free because the constable ha blundered." This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 27 tolerated on a wide scale, it makes no sense to assert that lega them is necessary to protect efficiency from being impaired. end, however, arguments about what is required by efficiency ar of the mark. A totally efficient system of crime control wou totally repressive one since it would require a total suspension of of privacy. We have to be prepared to pay a price for a regim fosters personal privacy and champions the dignity and inviol of the individual. That price inevitably involves some sacrifi efficiency; consequently, an appeal to efficiency alone is never suf to justify any encroachment on the area of human freedom. I be shown that efficient law enforcement will be so heavily impai failure to adopt the proposed measure that the minimal condit public order necessary to provide the environment in which viduals can be allowed to enjoy the fruits of personal freedom themselves cease to exist or be gravely impaired. No one has ously suggested that we are at or near that point. The practical consequence of enlarging police authority to individuals for questioning is not likely to be that all classes population will thereupon be subjected to interference. If tha the consequence, the practice would carry its own limiting fe because the popular outcry would be so great that these mea could not long be resorted to. The danger, rather, is that they w applied in a discriminatory fashion to precisely those elements in population-the poor, the ignorant, the illiterate, the unpopula are least able to draw attention to their plight and to whose suff the vast majority of the population are the least responsive. R for law, never high among minority groups, would plunge to low if what the police are now thought to do sub rosa becam officially sanctioned practice. The need, then, is not to legalize practices that are prese illegal but widespread. Rather, it is to reaffirm their illegality an the same time to take steps to reduce their incidence. This br to the question of sanctions for illegal arrests. To the extent poss these sanctions should be located within the criminal process since it is the efficiency of that process that they seek so mistake promote, the process should penalize, and thus label as ineff arrests that are based on any standard less rigorous than pr cause. Of course and as a minimal requirement, any evidence is obtained directly or indirectly on the basis of an illegal arrest be suppressed. Beyond that, any criminal prosecution commen the basis of an illegal arrest should be dismissed, preferably prejudice, but at the least with the consequence that the entire p This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 28 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 if it is to be re-invoked, must be started over again fr all records, working papers, and the like prepared in th first illegal proceeding impounded and destroyed. Many illegal arrests do not result in criminal pr of their undoubted vices) and are therefore not amenab imposed in the criminal process itself. A variety of d marshalled to provide effective sanctions against arr gation. The ordinary tort action against the poli demonstrated to be of very limited utility. It should be by provision for a statutory action against the gov employing the offending policeman, with a high enoug covery to make suit worthwhile. Since an importan is performed by attorneys who bring suits against officers, there should also be provision for allowing ad fees in cases where the action is successful. Measures of this kind will give governmental units a stake in proper police activity and incentive to discourage illegal activity that they do not now hav Direct disciplinary measures against the offending police officer a also desirable, but it is unrealistic to expect these to be initiated by departmental authority. Outside scrutiny is needed, both to insure tha the law is being impartially enforced and, perhaps even more im portantly, to reassure the general public that the police are not a la unto themselves. To this end there is need to set up civilian (i.e., nonpolice) boards to which complaints about illegal police activity may be directed and which can at least initiate, if not conduct, di ciplinary proceedings in cases where preliminary investigation show that the complaint may be meritorious. The Situation and the Trend. The legal power of the police to stop persons on the street, search them for weapons, and require them to answer questions about their identity and business is ambiguous. There is no doubt that the police, like any other person, may approach others and ask them questions. The question is what the police ma do if the person refuses to stop or to answer questions. Strangel enough, there is no authoritative holding on whether the police ma constitutionally be authorized to restrain a person who refuses t stop and answer questions when there is no probable cause to arres him. The proposed Uniform Arrest Act would give the police the power to "stop any person abroad who he has reasonable ground suspect is committing, has committed or is about to commit a crim 27 The confused state of the law has been demonstrated by many commentator E.g., Remington, The Law Relating to "On the Street" Detention, Questioning an Frisking of Suspected Persons and Police Arrest Privileges in General, 51 J. CRIM L., C. & P.S. 386 (1960). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 29 and may demand of him his name, address, busine whither he is going." 28 It goes on to provide that any pe tioned who fails to give a satisfactory account of himself tained" for further questioning and investigation, the "detention" not to exceed two hours. The Act has bee only three states and has apparently been construed out o one of them.29 It is silent on the question of remedie person wrongfully detained under its provisions. "There is no doubt that it is common police practic question suspects as to whom there are no sufficient arrest." 3 The knowledgeable commentator who ex opinion goes on to say that its truth is not easy to docum clear that many persons so stopped who do not give a sat count of themselves are taken to the station house for fu gation. In the District of Columbia,31 where the police ha category of arrest denominated as a "taking into custody able cause," a recent study showed that in a one-year peri 3,743 such arrests. This represented less than one per total arrests in the District-415,925-during the perio such arrests are apparently made only for investigatio the more relevant figure is the percentage of arrests for fall into the category of arrests for investigation. H centage is twenty-eight, or about one in every four f Most such arrests were made on the street, but a substan were made in the suspects' homes. The present sanctions for illegal arrest are essentially exclusion in a criminal prosecution of evidence obtain conducted incident to an illegal arrest;32 tort actio offending police officer;33 complaint to the police depart with rare exceptions, disposes of the complaint through d channels and without "civilian" scrutiny.34 Recent Supreme Court decisions make it quite clear th tention of suspects in the absence of probable cause mu by the constitutional standards that prevail for a tech 28 The text of the act is set forth in Warner, The Uniform Arr L. REV. 315, 320-21 (1942). 29 De Salvatore v. State, 52 Del. 550, 163 A.2d 244 (1960). 30 Remington, supra note 27, at 389. 31 WASH., D.C., COMMISSIONERS' COMM. ON POLICE ARRESTS FOR REPORT AND RECOMMENDATIONS 9 (1962). 32Mapp v. Ohio, 367 U.S. 643 (1961). 33 See Foote, Tort Remedies for Police Violations of Individual Ri L. REV. 493 (1955). 34 See Note, The Administration of Complaints by Civilians Ag 77 HARV. L. REV. 499 (1964). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 30 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 such detention would be held to be a violation of the fourth amend- ment.35 And it seems quite likely that detention, whether on th street or at the station house, would be considered an arrest (or use the language of the fourth amendment, a "seizure") in the consti- tutional sense.6 If this judgment is right, it would follow that th provisions of the Uniform Arrest Act, referred to earlier, would now be held unconstitutional by the Supreme Court, even though ther might have been substantial doubt about that proposition as recent as 1941, when the act was first proposed. It is one thing for a court to declare a procedure unconstitutional It is quite another to translate that declaration into operative fact. By and large, all that courts have available is the sanction of nullity. They can reverse criminal convictions based on evidence obtained throug an unlawful arrest. They can (and perhaps will) go farther an reverse such convictions or nullify at an earlier stage of the proce whenever it is shown that an illegal arrest has taken place. But th is still only a retail operation, and the problem is a wholesale one. One indication of further trend may be that the Commissioners o the District of Columbia, acting in response to the study already d scribed, have directed the police department to discontinue the practic of making arrests for investigation.7 That action, not in itself perhap of major significance, may provide a microcosmic example of a proces that appears to be underway on many fronts in the administratio of criminal justice in this country. The legal norm ostensibly says one thing. There is some suspicion that actual practice is quite differen However, it is only when investigation of the actual practice, spurred by developing legal norms, shows the magnitude of the discrepanc that the tension between norm and practice is partially resolved b reform. The increase in visibility itself contributes to the evolutio and refinement of the norm, which in turn stimulates and keeps alive a interest in the development of actual practice. How long such a cyc of reform may sustain itself is not clear. It does seem, however, that such a cycle is now underway in the area of arrests for investigatio and that it is slowly but perceptibly pushing practice in the direction of the Due Process Model. 35 See, e.g., Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 15-16 (1948). 36 The question of when a technical "arrest" takes place was left open in Henry v. United States, 361 U.S. 98 (1959), and Rios v. United States, 364 U.S. 253 (1960 Cf. United States v. Bonnano, 180 F. Supp. 71 (S.D.N.Y. 1960). But see Unite States v. Bufalino, 285 F.2d 408, 420 n.3 (2d Cir. 1960). 37 But not without some backing and filling. See Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CORNELL L.Q. 436, 444-4 (1964). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 31 2. Detention and Interrogation After a " Once a person suspected of crime has been someone has to decide whether a prosecutio initiated and, if so, what specific offense or off Typically, this is a job for the prosecutor; y ordinarily not even know that the suspect is in there is a question whether the charge against t be evaluated by some impartial authority in orde he should be held for judicial action. Since t whether the suspect should be held in custod judicated or released pending that determina to be afforded for making that decision. Bo whether or not to hold for the institution of ch or not to release pending further steps in th at least, made at a preliminary hearing befor when he sits in this capacity, is known as a m provides typically a terminus ad quem for the apprehending phase of the criminal process, a m the criminal investigation into a criminal prose However, prior to the independent magist be determined to what extent the accused may in the postarrest investigation: (1) May the poli definitely or must they bring him before a ticular time? (2) If the latter, what sanction posed for failure to comply with the requisite suspect be interrogated by the police during th what limitations? (4) If the accused admit period, what restrictions, if any, are there on t of this evidence at his trial? (5) Should the ac assistance of counsel during the time betwe preliminary hearing and, if so, under what con consequences for failure by the police to adhere The Crime Control Model. The police ca solve crimes by independent investigation al information is usually the suspect himself. W many crimes could not be solved at all. T reasonable opportunity to interrogate the suspe has a chance to fabricate a story or to decide th The psychologically optimal time for getting th from the suspect is immediately after his arres chance to rally his forces. Any kind of outside This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 32 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 diminish the prospect that the suspect will cooperate tion; therefore, he should not be entitled to sum friends, and most importantly, he should not be a lawyer. The first thing that a lawyer will tell him to the police. Once he obtains that kind of reinforce of getting any useful information from him sink to Of course, the police should not be entitled to indefinitely for interrogation nor would they w point of diminishing return in interrogation is reach anyhow, the police do not have extensive enough r to go on interrogating indefinitely. But no hard be laid down about how long the police should be p rogate the suspect before bringing him before a gravity of the crime, its complexity, the amount of tion that the suspect appears to have, all of these ar in determining how long he should be held. The stan the length of time under all the circumstances d reasonable to suppose that legitimate techniques of i be expected to produce useful information, or that e tion may be expected to produce convincing proof pect's innocence or of his guilt. The suspect should not be held incommunicad circumstances. His family is entitled to know wh should not be entitled to talk with him, since th effectiveness of the interrogation. Occasionally, it not to notify them at all, as where a confederate does not know that his partner in crime has been ap The point of all these illustrations, however, fast rules cannot be laid down if police efficiency is It follows that good faith mistakes in applying these case should not be penalized. If the police err by too long, he has no complaint, because by hypothe basis for belief that he has committed a crime. Th plaint to the extent that police resources are thereby be used inefficiently; but the redress for that is int cipline in flagrant cases and a general program of in tive management that minimizes such occasions. Any trustworthy statement obtained from a period of police interrogation should of course b evidence against him. Criminal investigation is a and anything that aids the search should be enco to be sure, a danger that occasionally police w This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 33 professional standards and will use coercive measu fession from a suspect. That is not to be condone time we should keep in mind that the evil of a co that it may result in the conviction of an innocen way of laying down hard and fast rules about wh conduct are coercive. It is a factual question in e the accused's confession is unreliable. A defendan a confession is introduced into evidence should have to convince the jury that the circumstances under which it was elicited were coercive that more probably than not the confession was untrue. reaching a determination on that issue, the trier of fact should course be entitled to consider the other evidence in the case and, it points toward guilt and tends to corroborate the confession, should be entitled to take that into account in determining whether, mo likely than not, the confession was untrue. To say this is not to say that the unlawful use of force by th police on an accused is ever to be condoned. It is simply to say that its use is not in itself determinative of the reliability of a co fession and should therefore not in itself be conclusive against th admissibility of a confession. The sanctions available for mistreatin a person in custody are ample, if vigorously pursued, to ensure th this kind of conduct will be found only in rare instances. It is throug the raising of professional standards by internal administrati methods, rather than through the happenstance outcome of a crimina prosecution, that improper police conduct is being eliminated. It follows a fortiori from what has been said that factors less probably coercive than the use of force, like an overly long period o detention unaccompanied by physical abuse, should not count co clusively against the admissibility of a confession. The Due Process Model. A valid decision to arrest must be based on probable cause to believe that the suspect has com crime. To put it another way, the police should not arrest the basis of the information at that time in their hands a case exists that, subject to the vicissitudes of the litigation process, seems likely to result in a conviction. It follows that if proper arrest standards have been employed, there is no necessity to obtain additional evidence from the mouth of the defendant. He is to be arrested so that he may be held to answer the case against him, not so that a case against him that does not exist at the time of his arrest can be developed. Once a suspect has been arrested, he should be brought befor a magistrate without unnecessary delay, which is to say, as soon as it is physically possible to do so, once the preliminary formalities o This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 34 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 recording his arrest have been completed. Anyon arrest has the right to test the legality of his arrest, is probable cause to hold him, in a judicial procee tical matter that right is diluted through delay un promptly brought before a magistrate. Since a sus be at liberty pending the judicial determination of cence, there must be as promptly as possible after ar in which the conditions of his release, as for exa determined. This right, too, is diluted by delay un promptly brought before a magistrate. And the su the assistance of counsel, a right that he most acut as soon as he is arrested. As a practical matter he ceive that right unless he is promptly advised of prompt production before an impartial judicial office his right is not to be diluted by delay. It is never proper for the police to hold a suspect of interrogation or investigation. Of course, some must always elapse between his arrest and his pr magistrate, and it would be unrealistic to expect the complete silence toward him during that period. H a decisive difference between an interrogation con relatively brief span of time necessary to get th magistrate and an interrogation whose length is time necessary to get him to confess. Any such in by that fact alone be held illegal. As soon as a suspect is arrested, he should be t that he is under no obligation to answer questions, th no detriment by refusing to answer questions, th questions in his own interest to clear himself of s anything he says may be used in evidence, and, ab entitled to see a lawyer if he wants to do so. If the suspect does make self-incriminatory statem arrest and before he is brought before a magistrate, in evidence against him should be barred under an conditions: (1) the failure of the police to apprise h including his right to the assistance of a lawyer; (2 confession was made during a period of detention t was necessary to get him promptly before a magi the confession was made under other coercive circ the use of force against him. Any confession m circumstances should be regarded as "involuntary excluded at the trial. Any further evidence secure This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 35 an involuntary confession should likewise be e deprive the police of any incentive to obtain suc The rationale of exclusion is not that the confession is untrust- worthy, but that it is at odds with the postulates of an accusatory system of criminal justice in which it is up to the state to make i case against a defendant without forcing him to cooperate in the process. It follows, then, that the existence of other evidence of guilt has no bearing on the admissibility of the confession or on the necessity for reversing a conviction based in part on such a confession. It als follows that the procedure for determining the admissibility of a con- fession must be such as to avoid any possibility of prejudice to th defendant through the process of determining admissibility. Spe cifically, in a jury trial the issue of the admissibility of a confessio should be litigated on a record made before the judge and out of th hearing of the jury so that the trial judge has the clear and undivided responsibility for deciding whether the jury should hear the confession and so that a reviewing court can have an unambiguous basis for d ciding whether the trial judge reached the proper conclusion. The Situation and the Trend. The power of the police to inter rogate a suspect between his arrest and his production before a magis- trate is generally recognized; but there is a strong and apparentl accelerating judicial trend toward limiting the duration and the circum stances of such interrogation. The Supreme Court has laid dow increasingly strict standards for determining when a confession i "involuntary" and therefore inadmissible in evidence against the accused.38 It has become clear that the criterion of voluntariness is not the trustworthiness of the confession, but rather its compatibility with the asserted postulates of an accusatorial system in which the case against the accused must be established "by evidence independently and freely secured" and which precludes the state "by coercion [to] prove its charge against an accused out of his own mouth." 39 Although the criterion has ostensibly been applied on a case-by-case basis, there appears to be a trend toward general and automatic standards for determining whether the circumstances of the interrogation were such as to be "inherently coercive." This trend has been most dramatically manifested in federal criminal prosecutions where the Supreme Court, in an exercise of its supervisory power over the administration of fed- eral criminal justice, has laid down a rule rejecting confessions that are secured during a period of detention that exceeds what is required 38 See, e.g., Haynes v. Washington, 373 U.S. 503 (1963), and Gallegos v. Colo- rado, 370 U.S. 49 (1963), neither of which involved particularly gross forms of "coercion." 39 Rogers v. Richmond, 365 U.S. 534, 541 (1961). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 36 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 to bring the accused before a magistrate "without unnec The states have so far been left free of this requireme general, not applied it to their criminal prosecution length of detention has been a factor conspicuously Supreme Court in reversing state criminal convicti on a confession, and there have been intimations that or something like it may eventually be applied to th from specific intimations in confession cases, there ha tendency to extend restrictions originally applied to tions to state prosecutions as well.42 There has bee tendency to move from rules that require case-by-case of prejudice to the accused to rules setting forth g of police and prosecutorial conduct.43 These develop presage the ultimate extension to state criminal prosec outlawing the admissibility of confessions secured d detention whose length and purpose is determined b efficiency in securing confessions rather than by the of time between arrest and production before a magist It has become a firmly established principle that co in part on involuntary confessions (so deemed by incre standards) must be reversed regardless of the streng dence of guilt in the case. And, in a most recent d states have been told that they must establish procedu the admissibility of confessions that do not give jur opportunity to hold either the substance of a confe that one was made against the defendant.44 Running through most of the problems that ari preliminary phase of the criminal process is the pe access to counsel. It has a twofold relationship with lems posed for resolution by our competing models acting as both their cause and effect. The importa either enhanced or diminished depending on the v the rules that ought to govern arrest, search, and in the other hand, if one starts with a position on the ut 40 McNabb v. United States, 318 U.S. 332 (1943); iallory v. United States, 354 U.S. 449 (1957). 41 Perhaps directly, by giving that rule constitutional status, cf. Wong Sun v. United States, 371 U.S. 471 (1963), or indirectly, through a requirement of access to counsel immediately after arrest, cf. Escobedo v. Illinois, 378 U.S. 478 (1964). 42 Compare Mapp v. Ohio, 367 U.S. 343 (1961), with Wolf v. Colorado, 338 U.S. 25 (1949). Compare Gideon v. Wainwright, 372 U.S. 335 (1963), with Betts v. Brady, 316 U.S. 455 (1942). Compare Malloy v. Hogan, 378 U.S. 1 (1964), with Adamson v. California, 332 U.S. 46 (1947). 43 Compare Rochin v. California, 342 U.S. 165 (1952), and Irvine v. California, 347 U.S. 128 (1954), with Mapp v. Ohio, 367 U.S. 643 (1961). 44 Jackson v. Denno, 378 U.S. 368 (1964). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 1964] TWO MODELS OF THE CRIMINAL PROCESS 37 of counsel at this stage of the process, that view determinative of many of the other rules. And, as the availability of counsel is bound to have impo for the effectiveness with which the applicabili rules, whatever they may be, is challenged. A concrete instance of this ubiquitous probl whether the admissibility of a confession should access to counsel during the period between arr before a magistrate. So far, the Supreme Court general limitation on the admissibility of confe which access to counsel becomes an absolute limitat has been somewhat later-roughly the point at whic being formally charged with a crime by indictm becomes "the accused." However, there are signs be pushed back to an earlier stage in the criminal p of cases in which confessions have been held involu has been laid upon the "special circumstance"- the suspect was denied an opportunity to consult informed of his right to remain silent. More signif has just held, by a bare majority, that a "princ induced to confess by an interrogation conducte requests to see his lawyer and despite his law see him is entitled to have his confession excluded from evidence.45 While the court spoke of the "particular ci of the case, this decision casts considerable doubt on th vitality of cases decided only a few years ago in whic secured under similar conditions were upheld.46 It seems v that this view, if it continues to be adhered to by a m Court, can be confined to explicit requests for legal as ignorant, inexperienced defendant, for whom the Cou special solicitude in the past, no less than the sophistica his rights and tries to insist upon them, will presumably equivalent protection, which may ultimately mean that no will stand unless given by a defendant who, having been f by the police of his right to remain silent and to cons nonetheless "freely" chooses to speak. Needless to say, as that would be only inches away from one that ruled ou any statement made by an accused to the police before his before a magistrate. 45 Escobedo v. Illinois, 378 U.S. 478 (1964). 46 See Crooker v. California, 357 U.S. 433 (1958); Cicenia v. La 504 (1958). This content downloaded from 136.206.89.26 on Mon, 10 Feb 2020 14:23:52 UTC All use subject to https://about.jstor.org/terms 38 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:1 It may be worthwhile calling attention to features of ment that are typical of what seems to be a general ten evolution of the criminal process: (1) a tendency to states

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