It is my pleasure to write the foreword to this inaugural criminal law issue. The issue consists of four timely and incisive articles that underscore the importance of the procedural and fair trial guarantees embodied, respectively, in the Fourth and Sixth Amendments to the United States Constitution. A common theme underlies the message conveyed by the distinguished authors: the extent to which the interpretation of criminal procedural fights by both the Supreme Court and state appellate courts affect the everyday administration of justice in the United States.
The right to a jury trial, enshrined in the Sixth Amendment, is the overarching symbol of our adversary system of adjudication. That hallowed protection, which puts a body of citizens as a bulwark against a powerful judge and prosecutor, reaches a climax when a criminal defendant's life is at stake. Similarly, jury unanimity has been a historic condition precedent to the deprivation of a defendant's life or liberty. Paradoxically, the State of Florida, one of thirty-five states that impose capital punishment for the most egregious homicides, requires a simple majority of the jury, at the sentencing stage of the trial, to condemn a defendant to death. Former Florida Supreme Court Justice Raoul Cantero and Robert M. Kline make a compelling argument that this Florida scheme is not only aberrational but also violates the Sixth Amendment's right to a jury trial.
Milton Hirsch, my long-time friend and colleague, documents a disturbing trend in the Supreme Court's Fourth Amendment jurisprudence: the decimation of the exclusionary rule. Unlike the Fifth Amendment's privilege against self-incrimination, the Fourth Amendment's proscription on unreasonable searches and seizures does not contain a built-in exclusionary rule. Nevertheless, the Weeks opinion prescribed an exclusionary rule for Fourth Amendment violations for the federal government, reasoning that a right without a remedy would violate the spirit, if not the letter, of the amendment. A few decades later, in the Mapp opinion, the Court extended the Weeks rationale to the states through the operation of the Fourteenth Amendment's Due Process Clause.
Severely curtailing the scope and effect of the exclusionary rule, the Supreme Court has recently labeled it a judicially crafted remedy subject to a cost-benefit analysis rather than an inherent part of the amendment, as the Weeks opinion emphasized. Hirsch points out that the Supreme Court's novel interpretation of the exclusionary remedy runs counter to the "original intent of the rule." He quotes former Chief Justice Browne of the Florida Supreme Court for the powerful proposition that courts should "not sanction law-breaking and constitutional violation to obtain [evidence] against another law-breaker."
E.J. Yera reminds us of Justice Blackmun's critique of his brethren in his Lee v. …