About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure

About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure

About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure

About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure

Synopsis

This remarkably original and vital work argues that the problems are rooted in a disjunction between prevailing values and the prevailing doctrinal regime in constitutional law. Dripps asserts that the Fourteenth Amendment's more general standards of due process and equal protection encompass the values that ought to govern the criminal process.

Excerpt

Scholars and judges who agree on little else agree that the constitutional law of criminal procedure is in disarray. Although nominally grounded on the Constitution, the Supreme Court's criminal-procedure cases typically do not reflect much concern for text, history, or structure. And precedent, in criminal-procedure circles, is a bit of a bad joke. The Warren Court overruled precedent on a regular basis, while the Burger and Rehnquist Courts have distinguished the Warren Court landmarks in accord with theories that leave the old cases with no justification of their own.

If the resulting body of law were highly functional, few would care about the weakness of the constitutional justifications or the arbitrary distinctions in the cases. But the current body of law is highly dysfunctional. Consider three statistics.

Roughly speaking, half of all arrests don't lead to convictions. That can only mean that the police detect many guilty offenders the courts fail to convict, that the police arrest a great many innocent people, or that arrest is routinely used as a kind of informal punishment. The most likely interpretation is that some combination of these phenomena explains the nonconviction rate.

Nationwide, 25% of the conclusive DNA tests performed at the request of the police exonerate the suspect. There is no reason to suppose that the processes of police investigation are any better in cases that do not involve tissue samples that can be tested by the DNA technique. The same factors that implicate the innocent in rape and murder cases where DNA testing is often possible—misidentification, poor defense work, prosecutorial misconduct, informant perjury, and false confessions—are at work in other cases too. Our trial process is being asked to negate far more false accusations than criminal justice professionals previously believed.

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