This Essay makes three basic points. (1) First, originalism is a good approach where the soil supports it, but many criminal procedure cases, particularly recent cases before the Supreme Court, lack solid historical foundations. (2) The Court is trying to build too much of an edifice on quicksand. It is going to sink.
Second, defense lawyers should be careful what they wish for. Though many defense lawyers cheer certain originalist decisions, they would not like the whole package that would result from applying a consistent originalist philosophy. Justice Thomas might be willing to give us such a package, (3) but it does not appear, on balance, more favorable to defendants than our current system.
Third, although Professor Jeffrey Fisher rightly touches on the idea of bright-line rules, (4) there are a number of areas where originalism leads away from bright-line rules. Justice Scalia likes originalism; he also likes formalism. (5) In some cases, however, a judge must choose between the two. Sometimes originalism contradicts doctrines such as the exclusionary rule (6) even though, intuitively, modern formalists should embrace the exclusionary rule because it is clear, simple, and instructs police exactly what not to do. (7)
I. THE SIXTH AMENDMENT AND JURY CONTROL OF SENTENCING
First, let us focus on the jury trial and sentencing cases. The ground here is soft enough to be a quagmire. The text of the Sixth Amendment does not define a trial or a criminal prosecution. (8) Does it therefore include sentencing?
Eighteenth-century trials contained no sentencing phase. (9) There is some evidence that juries knew of the punishments for crimes--more so in England than America--but there was nothing like modern sentencing proceedings. (10) Professor Fisher concedes that many of the contentious issues in criminal litigation today, such as sentencing guidelines, lack solid historical foundations for originalist analysis. (11)
To return to trials as conducted in the colonial era, we would have to give juries the power to sentence openly. We would give judges a free hand in commenting on evidence and expressing their views about a defendant's guilt. (12) We would run criminal cases in an hour or less. Few, if any, defense lawyers would support these results.
Although the Apprendi line of cases advocates rules to constrain judges, a return to the eighteenth century would mean getting rid of jury instructions, in which judges define mens rea for the jury. Absent judicial instruction on mens rea, juries would just decide whether a defendant was bad or wicked, (13) which is probably not a very pro-defendant approach. I might be comfortable with it, but many of the newfound friends of originalism would not.
Would we abolish or loosen the rules of evidence? Would we let in past criminal records? During the colonial era, jurors could tell if a defendant had a prior felony conviction. A felon was branded on the thumb, so a jury readily knew whether the defendant was a bad person who did not deserve leniency. (14) Today, the Federal Rules of Evidence exclude most previous convictions and other bad acts from evidence. (15) Yet pro-defendant advocates want to have the icing of the originalism cake--that is, those parts that are good for defendants--while avoiding the other, less tasty parts that cut against their clients.
Likewise, simplifying jury instructions gives judges a much freer hand to voice their own views. Professor Fisher writes that one of the themes here is curbing the power of judges. (16) During the eighteenth century, however, judges had great latitude to comment on the evidence, to make their views known, and even to lean on juries, short of throwing them in prison. (17) Judges could suggest strongly to juries that there was only one way to read the evidence. (18) Judges were not as timid then as they are today; the risk of reversal on appeal or habeas was mostly absent. …