The Failure of the Criminal Procedure Revolution

By Craig M. Bradley | Go to book overview

Introduction

"Criminal procedure" means the entire range of activities associated with bringing a criminal defendant to trial. It begins with investigation by the police, including searches of houses, cars, and so on, and lineups and photo displays of potential suspects; it proceeds through arrest, interrogation, arraignment, preliminary hearing, indictment by grand jury, trial, sentencing, appeal, and collateral challenges to conviction. The "criminal procedure revolution" refers to a series of constitutional decisions by the United States Supreme Court during the 1960s that "revolutionized" the criminal procedures of the states. For example, the Court required that unconstitutionally seized evidence must be excluded from state criminal trials, that police must warn criminal suspects of their constitutional rights before interrogating them (the Miranda warnings), and that indigent defendants must be given free counsel at any criminal trial that might lead to a prison sentence.

At the time these requirements were imposed, criticism of the Court's rulings was vehement. Many complained that the courts were "handcuffing the police." A rising crime rate was blamed on the Court's rulings, and Richard Nixon made the appointment of "law and order" Supreme Court Justices a major issue in his successful 1968 presidential campaign.

After Nixon had appointed four Justices, the pendulum swung in the opposite direction. Liberal critics of the "Burger Court" complained that constitutional guarantees of civil liberties were being "gutted" and that a reemergence of "police state" tactics by law enforcement authorities was imminent.

The dire predictions of both extremes have proved inaccurate. For example, the police have been able to adapt to giving the Miranda warnings to suspects without a major diminution in confessions. And, contrary to early expectations, the Burger Court did not overrule

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