The Substantive Origins of Criminal Procedure

Article excerpt

The focus of Fourth and Fifth Amendment law is day-to-day criminal investigation: police searches and seizures, interrogation of suspects, and so forth. In this Article, Professor Stuntz argues that Fourth and Fifth Amendment history has a very different focus. The Fourth and Fifth Amendments arose out of heresy and seditious libel investigations, in a time when police forces did not exist. In the late nineteenth century, when the Supreme Court first took a hand in crafting Fourth and Fifth Amendment doctrine, the key cases involved railroad and antitrust regulation - a far cry from ordinary criminal investigations, and far removed from the common concerns of police misconduct. In both the eighteenth and nineteenth centuries, Fourth and Fifth Amendment law's primary effect seems to have been to make it harder to prosecute substantively controversial crimes: heresy, sedition, or unpopular trade offenses at the time of the Founding, regulatory offenses in the late nineteenth century. Criminal procedure 's history thus has little to do with day-to-day criminal investigation - little to do with the police - but has a great deal to do with substance, with what conduct the state may criminalize. This unusual history, Professor Stuntz contends, is crucial to any understanding of the strange features of the current law of criminal investigation. In particular, it goes far toward explaining that law's failure to come to grips with police violence, surely the most important category of police misconduct.

I. INTRODUCTION

Consider the following anomaly: The law of criminal procedure closely regulates when a police officer can look in the glove compartment of my car or ask me questions about a crime, but it pays almost no attention to when (or how often or how hard or with what weapon) he can strike me. We have very detailed law governing a host of evidence-gathering issues, but surprisingly little - and surprisingly lax - legal regulation of police coercion and violence. This state of affairs is both strange and wrong. It is also a product of criminal procedure's odd history.

One aspect of that history is familiar. Fourth and Fifth Amendment law are the traditional guardians of a particular kind of individual privacy - the ability to keep secrets from the government. The most famous and important search and seizure cases of the eighteenth, nineteenth, and twentieth centuries involve government officials rummaging through private papers, subpoenaing private documents, or eavesdropping on telephone conversations.(1) Similarly, the privilege against self-incrimination arose in part from claims that one should not be required to disclose one's thoughts or beliefs under pain of criminal punishment.(2) This strand of thought about the privilege has mostly died out today, but as recently as a generation ago privacy was the dominant explanation for why the privilege existed.(3) And the privilege at its heart has always protected a form of secrecy - the right not to share one's testimony with the government.

But there is another, less noticed strand of Fourth and Fifth Amendment history. Privacy protection in the past had little to do with ordinary criminal procedure. The Fourth and Fifth Amendments arose out of heresy investigations and seditious libel cases, not murders and robberies. In the late nineteenth century, when the Supreme Court first took a hand in crafting Fourth and Fifth Amendment law, the key cases involved railroad regulation and antitrust - again, a far cry from ordinary criminal litigation. In both the eighteenth and nineteenth centuries, the law's primary effect seems to have been to make it harder to prosecute objectionable crimes - heresy, sedition, or unpopular trade offenses in the seventeenth and eighteenth centuries, regulatory offenses in the late nineteenth century. To a surprising degree, the history of criminal procedure is not really about procedure at all but about substantive issues, about what conduct the government should and should not be able to punish. …