The Failure of the Criminal Procedure Revolution

By Craig M. Bradley | Go to book overview

Chapter 1
Before the Revolution

Until the 1960s, the concept of "criminal procedure" did not have the same meaning that it does today. There was no law school course by that name; at best, some observations about the topic were tacked onto a course in criminal law. "Criminal procedure" generally meant the formal, legal procedure of the criminal justice system from arrest through sentencing. Thus, if one looks to rules of "criminal procedure" such as the American Law Institute's model rules adopted in 1930, one finds no mention of searches, interrogations, or police identification procedures.1 What we think of as the very essence of the subject today was completely ignored. Because these matters took place outside the formal system of justice, lawyers and judges were oblivious to them. The common law rule was that "it matters not how you get [evidence]; if you steal it even, it would be admissible in [court]."2 This non-exclusionary policy divorced the courts from the evidence gathering process. "Criminal procedure" was a matter for the courts. "Evidence gathering" was a matter for the police.

The problem with this policy of apartheid was that it was difficult to reconcile with federal and state constitutional provisions forbidding unreasonable searches and seizures and requiring that criminal defendants be accorded "equal protection" and "due process of law."* These constitutional guarantees caused the Supreme Court to make its first tentative explorations of what had heretofore been the constitutional terra incognita of police procedures. But before the Court

____________________
*
The fourteenth amendment to the United States Constitution provides, in pertinent part: "[No State shall] deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws."

-6-

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