Truth and Crime

Dear Professor Amar,

       I accept your challenge to “get down to details.” Let’s begin with your suggestion that we substitute judges for juries in tort suits against the police. A detail: The Seventh Amendment would not allow us to deny the police defendant a jury trial. Moreover, juries will inevitably learn whether the plaintiff is a “bad guy” or a “good guy.” On a more fundamental and empirical level, the problem of windfall acquittals stemming from the exclusionary rule is minuscule (very few guilty defendants actually go free because of the bungling constables) compared with the problem of deliberately improper police conduct. Let us not permit an abstract possibility to preclude us from trying to solve a real problem.
       Your most recent letter confirms the accuracy of my characterization of you as a constitutional literalist. Surely you must agree that the framers of the Fifth Amendment did not intend to allow so transparent a circumvention of the privilege against self-incrimination as a compelled pretrial deposition of the criminal defendant. Yet you are content to argue that since they didn’t specifically forbid it, it should now be deemed permissible. This is literalism, which produces a result directly at odds with the spirit of the Fifth Amendment.
       Finally, I welcome your proposed discussion of the Eighth Amendment. Perhaps we can debate that important issue in the future.