Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It

Chapter 8: The Supreme Court

CHAPTER EIGHT The Supreme Court An Institutional Failure The Difficulties of Criticizing the Supreme Court One of the difficulties with the American criminal justice system is that it is heavily constitutionalized. Any reform proposal, even a rather minor one, runs up against the argument that it would violate the Constitution as interpreted by the Supreme Court. Immediately , the would-be reformer is put on the defensive—he or she is arguing against the Bill of Rights, motherhood, justice, freedom from government repression—and is assumed to be urging a return to the southern justice of the 1940s and 1950s, and to a period when few legislatures around the country seemed to care about the treatment suspects received at the hands of the police. He is also assumed to be attacking the Court—the institution that courageously rebuilt and reformed our criminal justice system to make it the best in the world. (One doesn’t hear the latter part of this claim nearly as often today as one did five or six years ago.) One way to finesse the problem posed by the Supreme Court when speaking to a legal audience is to be very careful not to attack the Court, but to limit one’s criticisms to one or two major decisions and to suggest tactfully that if these decisions were modified a bit or overruled, then all would be well. Many major constitutional decisions have been decided by a close vote on the Court with 154 strong dissenting opinions. So it seems more respectful to argue that the dissenters have been proven right in that case and that the Court could overrule this or that decision and put the system back on track. Arguments for change along these lines fit more comfortably within our legal tradition as they concede the centrality of the Supreme Court but contend that the Court got it wrong once or twice. I wish the problems stemming from the Court’s role in our criminal justice system could be solved by altering one or two major decisions . But that is simply not the case. The problem is not just this system of warnings versus that system of warnings, or this type of exclusionary rule versus a less severe exclusionary rule. It is an institutional failure that needs to be understood and acknowledged if we are to rebuild the system. Put bluntly, the Court has arrogated to itself an institutional role for which it was not designed and for which it is poorly equipped. As long as the Court insists that it is the central and dominant player in announcing rules on every aspect of the criminal justice system from search and seizure, to confessions , to jury selection, to the questioning of witnesses, to appellate review, the system will never be as strong as those in many other western countries. It will always be extreme and lacking in balance and proportion. Before explaining why that is so, I need to discuss the Court’s authority over criminal matters and what the Court has been doing over the last thirty years. The Court and the Bill of Rights The first ten amendments of the Constitution, the Bill of Rights, contain a series of protections for citizens against the federal government . The fourth amendment states that the right of the people to be secure in their persons, papers, and effects against unreasonable searches and seizures shall not be violated. The fifth amendment provides that no person shall be compelled in a criminal case The Supreme Court 155 to be a witness against himself, that no one shall be deprived of life or liberty without due process of law, and that no person shall be twice put in jeopardy of life or limb. The sixth amendment guarantees those accused of a crime the right to a speedy and public trial, the right to an impartial jury from the state or district where the crime occurred, the right to be informed of the nature and cause of the accusation, the right to confront witnesses and to compel their attendance, and the right to have the assistance of counsel. The eighth amendment provides that excessive bail shall not be imposed and that cruel and unusual punishment shall not be inflicted. These are protections against the federal government. As far as protection against state governments is concerned, the Constitution guarantees in the fourteenth amendment that a state shall not deprive...