The Real-World Shift in Criminal Procedure

By Bibas, Stephanos | Journal of Criminal Law and Criminology, Spring 2003 | Go to article overview

The Real-World Shift in Criminal Procedure


Bibas, Stephanos, Journal of Criminal Law and Criminology


RONALD JAY ALLEN, WILLIAM J. STUNTZ, JOSEPH L. HOFFMAN, & DEBRA A. LIVINGSTON, COMPREHENSIVE CRIMINAL PROCEDURE. (NEW YORK: ASPEN LAW & BUSINESS, 2001). PP. XXXII, 1598.

MARC L. MILLER & RONALD F. WRIGHT. CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE MATERIALS, (NEW YORK: ASPEN LAW & BUSINESS, 2001). PP. LI, 1866.

For four decades, criminal procedure scholars have focused on federal constitutional rulings by the Supreme Court. (1) These scholars have emphasized the Warren Court's creation of new federal constitutional procedures for defendants and the pendulum-swing back towards prosecutors under the Burger and Rehnquist Courts. (2) The main actors in this drama were appellate judges, retrospectively reviewing convictions after jury trials. Scholars have emphasized Supreme Court constitutional rulings on the exclusionary role and Miranda warnings, which pitted probative evidence in court against federal constitutional rights. Many articles still volley back and forth over the latest major Supreme Court decision on Miranda, United States v. Dickerson. (3)

This focus on Supreme Court doctrine continues to role criminal procedure, in both scholarly articles and casebooks. But a shift is afoot. In the last few years, a competing school of thought has begun to challenge the reigning view. A new, younger breed of scholars has emerged, focused much more on how these abstract rules play out in the real world. Scholars are writing about criminal-procedure topics such as politics (4) and race (5) that do not fit comfortably within the traditional doctrinal approach. Recent major articles have addressed charging decisions, (6) plea bargaining, (7) and sentencing, (8) topics that traditionally have drawn less attention than have jury trials. (9) A few more articles consider state law, not just the United States Constitution. (10) And scholars are paying more attention to other actors in the process-not just juries and appellate judges, but also police, (11) prosecutors, (12) and informants. (13) (By "real world," then, I do not mean the dry approach of a how-to manual. Rather, I mean the myriad sources of law, procedural variants, actors, incentives, and political and social forces that shape, constrain, and contextualize doctrine.) The literature is still dominated by doctrinal analyses of Supreme Court case law and discussions of juries, but the real-world approach is coming into its own.

This coming real-world shift, however, has been slow to hit the classroom. Many professors came of age around the shift from the Warren to Burger Courts and have been shaped by these Courts' doctrinal changes. They are used to teaching criminal procedure as federal constitutional law. Besides, students find it simpler to focus on a single source of law. Professors are more familiar with teaching from case law than from police manuals, prosecutorial guidelines, and social-science literature. Many professors never practiced criminal law or practiced long ago, before the era of guidelines sentencing and other recent developments. Furthermore, bar examiners routinely build criminal procedure questions around Supreme Court doctrine. Most importantly, perhaps, many have invested years in teaching out of criminal procedure casebooks that reflect the traditional emphasis on Supreme Court doctrine. Until recently, no other casebooks existed.

Now, however, a new generation of casebooks is available. Marc Miller and Ronald Wright's book, Criminal Procedures, breaks away from Supreme Court doctrine. Instead of treating criminal procedure as a monolith, it looks at the variety of approaches taken by states and even occasionally by foreign countries. It looks beyond case law to emphasize statutes, procedural rules, and police and prosecutorial policies. It heeds the role of politics and race and includes social-science material that discusses the real-world impacts of procedures. And it explores these real-world materials and issues through classroom problems and drafting exercises, not just traditional Socratic exploration of case law. …

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