Alternative Models of Criminal Procedure
The statutory model of criminal procedure proposed in the last chapter runs counter to the training and experience of American lawyers, who are steeped in the notion that case law is the way to develop constitutionally based rules. This fact, combined with the possible political objections that this proposal may face, discussed in the previous chapter, means that it may never be enacted. This book is not intended merely as an academic exercise, but is, rather, designed to provide practical solutions to the practical problems facing the criminal justice system. Consequently, this chapter proposes three alternative approaches that do not require a total revamping of the current system of Supreme Court-created criminal procedure law. The first two, which I originally proposed in a 1985 article in the Michigan Law Review entitled "Two Models of the Fourth Amendment," suggest new approaches that the Supreme Court itself could take to the vexing problems of fourth amendment, and all criminal procedure, law. The third proposal simply suggests that the Advisory Committee for the (federal) Criminal Rules expand the coverage of those rules to include police procedures, and thus serve as a model for the states.
As I argued at length in the Michigan Law Review, there are two ways in which the Supreme Court could avoid some of the problems that inhere in its attempts to declare rules of criminal procedure discussed in Chapter 4. They could either declare a clear rule and stick to it, even if it led to unsatisfactory results in a particular case (Model I), or declare a standard that was so obviously not a clear rule that it would not have to be compromised case by case (Model II). It was, essen-