What Is To Be Done?
The position taken in this book is that the attempt by the United States Supreme Court to declare "rules" of criminal procedure has led to a body of criminal procedure law that is largely incomprehensible. The reasons for this lie mostly in the nature of the Supreme Court as an institution rather than in the political direction of its opinions or the quality of individual decisions.
There is, however, a very good reason why criminal procedure rules have had to originate with the Supreme Court, despite that institution's fundamental incapacity to perform the function adequately -- namely, because it is widely believed that the Supreme Court is the only institution capable of enacting rules applicable nationwide. It was reasonable for the Warren Court to conclude, particularly in light of the consistent refusal of the southern states to recognize civil rights of blacks, that matters concerning such fundamental constitutional rights as the right to a fair trial and the right not to be subjected to coercive police interrogation must not be left to the mercies of the individual states. But no national institution had clear power to act. The Supreme Court simply assumed that power by concluding that the due process clause of the fourteenth amendment "incorporated" the Bill of Rights and made it applicable to the states. Once the Court did this, both Congress and state legislatures largely abandoned the field, leaving a legal system that has come to assume that the Supreme Court is the only body capable of declaring nationally applicable rules of criminal procedure to protect the nationally applicable Bill of Rights. It is the principal point of this book that the Court is neither the only nor the best source of such rules. Rather, what is needed, as other countries recognize, is a comprehensive, nationally applicable, statutory scheme.