The Constitution and Criminal Procedure: First Principles
By Akhil Reed Amar
Yale University Press; 271 pages; $20
Akhil Reed Amar, a professor of law at Yale, is the acknowledged “dean” of the so-called “truth school” of criminal-justice reform. This school, which is growing in influence among academics, judges, and legislators, maintains that the object of criminal trials must be the truth. To reach this goal, its advocates argue, the barriers that stand in the way of convicting the truly guilty should be lowered. This can be done by reinterpreting the relevant sections of the Constitution in accordance with their original historical meaning. Among the barriers targeted by the truth school are the Fourth Amendment’s exclusionary rule–which forbids the introduction into trial of evidence obtained in violation of that amendment–and the Fifth Amendment’s prohibition on eliciting the truth from criminal defendants by compelling them to testify.
On an abstract level, Amar’s argument is hard to disagree with. Who can be against the truth? The problem is in the details. In this provocative and often brilliant book, Amar shows us what his Truth School would look like. It is a beautiful blueprint, but the plans would not pass a safety inspection in the real world of cops, robbers, prosecutors, defense attorneys, and judges.
Amar offers several radical recommendations. Besides his proposals to abolish virtually all exclusionary rules and require criminal defendants to testify against themselves in pretrial depositions, he would limit search warrants to the point of virtual disuse and, with them, the requirement of probable cause. He would instead substitute a blanket rule decreeing that all searches that are not “unreasonable”–an issue to be decided on an ad hoc basis by juries–satisfy the Fourth Amendment standard.
In fairness, Amar would attribute these views not to himself but to the framers of our Bill of Rights. Historians differ, however, as to the original meaning of the Fourth and Fifth amendments. Not only can the devil cite scripture, but special pleaders can find in the open-textured words and often ambiguous history of these hastily drafted amendments almost anything they want to claim is the right (or left) approach. It is unlikely that Amar’s prescription for a wholesale reinterpretation of established doctrine will soon prevail. Nonetheless, his writings are too influential to be ignored, even if the provocative issues he raises are more usefully (and honestly) argued on the level of the policies they point to than on the level of what the Constitution dictates.
What are the policy implications of Amar’s proposals to change our current interpretations of the Fourth and Fifth amendments to bring them more in line with the “search for truth”? These proposals should be evaluated on two bases: Will they, in fact, produce more truth? And if so, will they undercut other values more important than truth?
O n the first question, Amar tries to have it both ways. He rightfully criticizes the current exclusionary rule for not serving as an effective to police misconduct. His “better way” is to let citizens sue the government for making mistakes in its quest for evidence. But if this kind of tort remedy were to work effectively, it would, of necessity, deter some searches that are today conducted by errant cops who do not fear the occasional exclusion of illegally obtained evidence. The upshot might be fewer questionable searches, less evidence, and hence, less truth. Amar gives no reason to believe his way will be more selective in searching for “true” rather than “false” evidence. It may prove to be a more effective deterrent to unreasonable searches, but unless reasonableness is tautologically defined to include only searches that turn up evidence of guilt, the more effective the deterrent, the less truth it is likely to uncover.
Amar advocates that all criminal defendants be compelled to give pretrial depositions, but his book is vague about whether these depositions would substitute for or supplement police interrogation. In a recent public debate with this reviewer, however, Amar stated clearly that he would accept the trade-off and give up police interrogation for compelled pretrial depositions. Such a trade-off would diminish considerably the ability of the police to get at the truth, since jailhouse interrogation in the absence of a lawyer is more likely to “break” a guilty defendant than a courtroom deposition conducted with the assistance of counsel is. That is why I believe that few police officers–or prosecutors–would accept a blanket prohibition on police interrogation in exchange for compelled pretrial depositions. They might accept it for white-collar cases, since white-collar defendants almost never submit to police interrogations. But “street” criminal defendants do, and many waive their Miranda rights and confess or provide leads. Thus Amar’s better way of getting confessions might also produce less truth than the current approach does.
O n the question of whether the proposals of the truth school will denigrate other values more important than truth, we have a long history from which to learn. If truth were the only goal of the criminal trial, that goal would not be difficult to reach. First, we would reintroduce the techniques of the Inquisition, the Star Chamber, and the Stalinist secret police. They knew how to get at the truth without any interference from civil libertarians seeking to burden their single-minded pursuits with such as privacy, bodily integrity, fairness, and civility. Throughout our history, those who have sought the Holy Grail of truth have shown impatience with process. The first victim in the search for truth has too often been liberty.
Second, if our only goal were to maximize truth, we would lower the burden of proof in criminal cases from “beyond a reasonable doubt” to “a preponderance of the evidence.” Why would anyone seeking more truth prefer “10 guilty go free” to “one innocent … wrongly convicted”? Indeed, under our present rule a jury is told that if it believes that a defendant “probably” did it, it must acquit him, because “probably” is not enough. A system that sought a greater quantity of truth would instruct the fact finder to accept a disputed fact if it were more likely than not that the fact was true.
Third, we would never allocate fact finding to 12 randomly selected individuals whose major qualification is that they know nothing about the matter in dispute. Nor would we allocate it to judges, who are also not scientific experts. We would have relevant professionals–scientists, accountants, engineers, forensic specialists–decide all criminal cases. We would employ the methodologies of science, not democracy, to arrive at justice.
The point is that we all agree–certainly Amar, who loves juries and supports a high burden of proof, agrees–that our democratic system of fact finding is already a compromise between the search for truth and the search for fairness. The real question is how to strike an appropriate balance among the often conflicting values of truth on the one hand and considerations such as privacy and equality on the other.
It is precisely on this difficult issue that Amar is at his weakest. His absence of hands-on experience with our current criminal-justice system–his lack of feel for how it actually works–puts him at a perceptible disadvantage when seeking to strike this exquisitely delicate balance. Nonetheless, his book is a valuable contribution to the debate, because it gives those with experience an abstract architectural plan against which to evaluate today’s imperfect reality of criminal justice.