The Jurisprudential and Political Foundation of Criminal Procedure
I am honored and pleased to be asked to address you today.I would like to thank Dr.Fan of the Procedural Law Research Center.I would also like to thank my student, and now Vice President of China University of Political Science and Law, Prof.Baosheng Zhang, for arranging my trip to China.Prof. Baosheng Zhang studied various aspects of American law, in particular procedure and evidence law at Northwestern University with me.We were very glad to have had him with us in Chicago, and hope that he will return and that other professors from China will continue to study with us at Northwestern University.I am especially proud of his accomplishments, and grateful for his effort in translating my book on Evidence into Chinese.
I am also pleased to be here to continue to build bridges between the people of China and the United States.The twenty-first century will be characterized by ever increasing cooperation and interaction between China and the West.These two great civilizations will together determine much of the course of the next hundred years.Already China's economy is on target to match that of both the European Union and the United States by the middle of the century.Your universities are emerging world-class centers of teaching and learning.More and more innovation comes from Chinese inventors and entrepreneurs.We in the United States are impressed by these developments, and welcome them, even though they constitute a challenge to us.We welcome them because we firmly believe that competition within the rule of law will make both you and us better, and lead to advances that will benefit all mankind.Most importantly, it will be critical to world peace and prosperity for you and us to work together cooperatively, to lay the foundation for an international rule of law that will bring to the world the benefits the rule of law has brought to you and to us.
I just mentioned“the rule of law.”We believe that the rule of law has been critical to the development of the United States in virtually every respect.The central ingredients of the rule of law are 1）legal standards are articulated in advance in clear and understandable language;2）independent（of the legislature and executive authorities）adjudicate disputes; and 3）everyone, including the government, is bound by the law.The conventional view of law as constraining choice and behavior is false; law liberates by making the legitimate limits of action clear, thus allowing people to work together cooperatively within those limits.This in turn liberates individuals to unleash their creative abilities in productive ways, and the protection provided by the rule of law to the right to consume, use, or dispose of what is produced provides much of the incentive to produce it in the first place.I am only now beginning my studies of Chinese law, and so I do not purport to be an expert on the issues that you face.Nonetheless, it is my understanding that you, too, place great emphasis on the importance of the rule of law, feel the need for some change perhaps, and are now rethinking certain aspects of your legal institutions in an effort to further the great strides your country has made.There is no question that the rule of law is critical to the legal process; indeed, it should be its defining characteristic.Equally clear is that there is no point to“reforming”any aspect of the legal process except to further, deepen, and strengthen the rule of law.
I am not here, however, to instruct you as to what needs to be reformed, or what reforms you should adopt.I do not yet know enough about your legal system or your needs to do so.Rather, I wish to discuss something else.I wish to discuss the foundations of the criminal process.Although I will concentrate on the criminal process, much of what I have to say is relevant to civil litigation as well, and thus more generally is relevant to the foundations of the rule of law.I will discuss the factors that determine what criminal process should be adopted, how it should be implemented, and so on.And I will tell you a little bit about the complexity of those factors and their implications for us in the United States.I want to begin, however, by first discussing briefly the law of evidence.In one sense, the law of evidence is the most important, and most fundamental, aspect of any system of litigation; indeed, it is the bedrock of the rule of law.
The idea that the law of evidence is fundamental to a system of litigation and is the bedrock of the rule of law may at first glance seem strange.In fact, the law of evidence is fundamental to any system that creates rights or enforces obligations.Rights and obligations are dependent upon accurate fact finding;without accurate adjudication, rights and obligations are essentially meaningless.I will demonstrate this point through a simple example.
Each of you here today would assert ownership of something—the clothes you are wearing for example.I own this necktie that I am wearing, which means that I have the right to possess, consume, and dispose of this necktie as I see fit.This is the standard meaning of the“right”of ownership of personal property.Suppose, however, that somebody contests my ownership of this necktie.What will happen? In all civilized countries, the dispute will be presented to a disinterested decision maker—maybe a judge, in the U.S.maybe a jury—who will decide whether I or someone else has the right to possess, consume and dispose of this necktie.That decision will be made on the basis of the evidence presented to the decision maker.Thus, when I claim ownership over this tie, what I am really claiming is that, if my ownership is contested, I will be able to present to a decision maker evidence from which he or she will conclude that in fact the tie is mine to possess, consume, and dispose of.
What we see in this example is that rights and obligations are dependent on facts.Facts are anterior to rights and obligations, and in that sense are more fundamental.Without accurate fact finding, rights and obligations become meaningless.And of course, it is the law of evidence that determines how facts are established.Thus, it is literally true that rights and obligations are dependent upon the law of evidence.
Because of the fundamental nature of the law of evidence, in the United States we do not have separate evidence codes for the criminal and civil processes.We have one law of evidence that is applicable to any juridical fact finding.Obviously, criminal and civil cases can present different problems, and thus there are some rules whose applicability is confined more or less to ei ther the civil or criminal law.In general, though, our approach to evidence law is uniform.The obj ective is to facilitate accurate fact finding, and thus a broad definition of relevancy is provided.So long as evidence is relevant, it may be offered by the parties unless it fits within a limited set of exclusionary rules whose purpose is to advance some value deemed important enough to justify the cost of excluding relevant evidence.The marital and attorney client privileges are examples.There are others, such as the exclusion of subsequent remedial measures, which is designed to encourage individuals to take action to reduce risks of harm.In general, though, our law of evidence is designed to facilitate a system of free proof in both civil and criminal cases, with the parties having the obligation to decide what evidence to employ.
I can discuss with you during the question and answer session the details of our law of evidence if you are interested.Let me just conclude my discussion of evidence law by saying that unlike the law of criminal procedure, which I am about to begin discussing, evidence law is universal.It deals with how the human mind comes to know its environment.Logic, epistemology, sense data, are not different in China and the United States.The only relevant differences between the two cultures would have to do with exceptions to the general principle of admitting all the relevant evidence the parties wish to admit.Those decisions could easily be informed by local conditions.Still, the important point is that the law of evidence deals with the nature of knowledge and rationality, which I believe to involve universal not local matters for the most part.
There is a connection between the law of evidence in the United States and the criminal process beyond the mere fact that the law of evidence applies to both civil and criminal cases alike.There are a few exclusionary rules uniquely applicable to criminal cases that have been found to be implicit in our Federal Constitution, and they are the primary example of rules of evidence that are specific to the domain of either the civil or the criminal law.They are quite famous, and you may have heard of them.The Miranda rule is an example.The Fourth Amendment exclusionary rule for an unlawful search seizure is another example.I understand that you may be considering adopting rules and procedures such as these and perhaps others from other countries, and perhaps you should consider doing so.However, always you must keep in mind that proce dures in other countries are embedded in legal systems and cultures that may differ from your own.
This point—that criminal procedure is local, whereas evidence law is universal—cannot be emphasized strongly enough.The obj ectives pursued by the people in other countries through the criminal law may differ in some respects（although certainly not all respects）from your own.The histories and cultures of the respective nations will differ, and so on.Thus, I want both to commend you for pursuing this difficult process of appraising your own institutions but warn you that you must look carefully first at yourselves so that you see clearly and precisely what it is you are doing and why, and second you must scrutinize suggestions from other countries to see their institutions in context.There are many examples of efforts to import parts of one country's criminal process into another that have failed miserably because of the neglect of the cultural and historical aspects of society, and more importantly because of the differing institutional arrangements and assumptions that meant that an approach to criminal procedure would have one set of implications in one setting but quite a different set of implications in another.
I would press this point even further.“Criminal procedure”cannot be understood simply by looking at the statutes, codes, and in the case of the United States, the decisions of the courts.Such things are an important aspect of what constitutes criminal procedure, to be sure, but they do not occupy the field.If, for example, one looks at the various criminal codes in the United States, nowhere is there a reference to the great discretionary power of the prosecutor in the United States to choose what cases to pursue and what cases not to pursue, what charges to file and what charges to drop, whom to investigate and charge, whom to prosecute to the fullest extent of the law and whom to plea bargain with.Similarly, one can closely examine the great constitutional criminal procedure cases that dominate the formalities of the American criminal pre-trial process and never learn that in almost every case state or federal legislatures have the ability to nullify the most far reaching procedural decision through the legislative power to define crime.I could extend this list considerably, all to make the point that to study“criminal procedure”in the United States requires much more than simply consulting the statutes and the cases; it requires engaging with history, culture, politics, economics, and many other variables.
The American conception of the purpose of government is that government exists to create and sustain the conditions under which individuals can flourish according to their own moral dictates.Governments exist to serve the people，rather than the people to serve the government.This, of course, is the essence of what is referred to as“liberal democracy, ”the basic contours of which emerged from the European Enlightenment philosophers.The American experience added to this a systematic and widespread distrust of centralized government.Government, in the formative period of American history, was not viewed just as the solution to the problems society faced; it was viewed as part of the problem, and had to be cabined, limited, constrained in many, many different ways.This is reflected not only in the separation of powers in the three branches of government（the legislature, executive and judicial branches）, which we imported from our European forbears; we added to it judicial supremacy vested in judges with life time tenure that gives the final say over the meaning of Constitutional provisions and statutory interpretation to the judges.This, of course, is the famous“right of judicial review”possessed by our courts.
Not content with the structural inhibitions to the exercise of governmental authority formally created in the Constitution through the separation of powers, our founding generation insisted on a series of individual rights against the government, found in the specific provisions of the Bill of Rights（the first ten amendments to the Constitution）, and general admonitions that citizens have the right to“due process of law”and the“equal protection of the law.”Collectively these provisions do many things; of particular importance for this Seminar, they make it difficult to obtain convictions.An individual has a right to a grand jury indictment returned by a group of non-government employees selected from the population at large（although some states do not use grand juries）, a different jury of laymen must find guilt beyond reasonable doubt，the individual has a right not to be compelled to incriminate himself, the government may not engage in unreasonable searches and seizures, the defendant has the right to subpoena witnesses in his own behalf and to cross-examine the government's witnesses, and to do so at a public trial held within a relatively short period of time from the date of the formal accusation against the defendant in the state and district where the crime occurred. The right to be free from double j eopardy limits the government, essentially, to a single effort to convict a person for a particular crime.
The protections of an individual go even further.Criminal laws must be readily comprehensible, or else they will be struck down by the courts as unconstitutionally vague.American law has embraced the common law“rule of lenity.” This is an interpretive canon to the effect that, if a criminal statute is susceptible of two differing interpretations, the courts will adopt the interpretation most favorable to the individual defendant.Even this does not exhaust the individual protections that surround a criminal defendant.
These individual rights were not selected randomly over the total of set of rights that can be imagined, however.Rather, they were incorporated into the Constitution because they in turn were the parts that composed a unified view of the relationship between the government and the citizen.That view has as its core that governments must be limited, that the centralizing tendency of all governmental power must be resisted, and that the path to a criminal conviction must be difficult, arduous, and in large measure require the consent of the people（through their role as grand and petit jurors）.
The conception of government I am describing has both its virtues and its drawbacks, and I am here today to neither praise nor criticize it; rather, I am here to explain it.It is only with this background that one can understand the discrete provisions dealing with individual rights in the U.S.Constitution, such as the right to counsel.One cannot view a procedural requirement in an isolated fashion and say much coherent about it.One must take it in context, and view it in relationship to the fundamental concept or concepts it is designed to implement or express.
Let me generalize this poin.t When one talks about“reform of the criminal process, ”the topic is in fact these underlying jurisprudential and political issues.Basic conceptions of the rule of law, the role of governmental institutions, and their relationship to the citizenry are implemented in not derived from such things as are found in the American Bill of Rights.
There are additional variables that need to be considered in fashioning the criminal process that have social, cultural, and political dimensions and implications.For example, in the United States, we often refer to the“right to privacy.”This phrase is ambiguous, however, and refers to at least three different ideas:1）The right to exclude others, including the government, from one's private sphere, which is the essence of“privacy”;2）The right to make choices about and for oneself and one's family, such as the much contested right to an abortion in the United States, which is better thought of as“autonomy”; and 3）The right to treated in a certain way by others, including the government, which really refers to a“dignitary”interest.Each of these individual interests is in tension with communal interests that are their mirror images.In deciding the scope of the penal law and its enforcement, a society must make choices over these interacting and conflicting interests.
My first general point, then, is that criminal procedure cannot be viewed in isolation from its surroundings, and that in fact what it is derives from perspectives on profound questions concerning the nature of government, the appropriate relationship between government and the citizen, as well as from views about such deep philosophical questions as the nature of individuality.There is a second reason why one cannot look at a“criminal procedure”in the abstract.Not only are the components parts of a criminal justice system integral to a dynamic process, but also, and just as importantly, things are not always what they appear to be.In my book, Comprehensive Criminal Procedure, my co-authors and I have developed a framework for studying criminal procedure in the United States.To understand the actual operation of the criminal justice system in the United States, one must address, in addition to the formal commands of the“law”and the deep jurisprudential and political issues briefly commented on above, at least the following four variables：
1.The distinction between the law on the books and the law in action；
2.The intimate interrelationship between procedural law and substantive law, and in particular how procedural law is in fact a hostage of substantive law, rather than the other way around as is conventionally believed；
3.History in general, and in particular race relations and racial discrimination；
4.Economics, or as we say in the United States, “There is no free lunch”if you use a dollar（or yuan）here for one purpose you cannot use it there for a different purpose.
I will discuss in turn each of these variables and their significance.
1.The law on the books; the law in action.Constitutions are enacted，legislation is passed, executives issue orders and directives, and courts decide, and one would think that the rest of us more or less obey.Unfortunately（or perhaps fortunately）, life is not so simple.When constitutions or laws are adopted in any multi-party decision making process（such as a popular vote on a constitution or a vote in a legislature to adopt a law）, there will be multiple understandings of what the legal language connotes.Some legislator may vote for the passage of a bill even though they do not believe it goes far enough in its coverage（or even though it goes too far）; others may vote against it for just the same reasons.There also may be serious disagreements as to precisely what a particular provision is supposed to mean or do.One person may think the legal language has one implication, and someone else may think it has a different implication.In the United States, for example, there was once sharp disagreement about the relationship between the due process clause of the fourteenth amendment and the Bill of Rights, the first ten amendments to the U.S.Constitution. Statutory or constitutional language in the abstract often will not resolve the meaning of those phrases.
Compounding the difficulty even further, legal language is often deliberately left vague because of the inability to come to agreement as to precisely what it should say or because of the omnipresent inability to anticipate all possible scenarios in which a particular problem might arise.An example from the United States Constitution is the regal but ambiguous language of the eighth amendment that neither cruel nor unusual punishments may be imposed.That is all very well and good, but what exactly makes a punishment cruel and unusual? How does whatever the phrase may have been meant in 1791 when the language was adopted apply to new developments that were never anticipated? No formulaic answers to such questions can exist.
Even if the language of a legal provision were perfectly clear, legislators do not execute their own laws.Executives do, such as the President and the Governors of the States in our system.Thus, their interpretations can be critical to the implementation of a legal provision.Beyond just the linguistic problem of meaning lies an even deeper problem.The executive may not share precisely the same view of wise policy as held by the legislature, and thus the executive may be more or less enthusiastic about the execution of various laws.Even if the executive knew what each of the laws meant and was quite enthusiastic about its enforcement, virtually no law can be enforced perfectly.There are inadequate resources to do so, and the methods necessary to ac-complish the task would often violate other norms.A simple example here is that crime in both our countries continues to be committed notwithstanding vast resources invested in its eradication.Some crimes could not be eradicated without using measures that would be so intrusive into privacy or violative of other rights that the methods would be viewed as worse than the toleration of some level of criminality.In any event, executives must make choices about the meaning of legal provisions, and priorities in and methods of enforcement.
How the law on the books gets translated into the law in action becomes even more complex as one descends the organizational chain from the highest levels of government down toward the policeman on the street.And here the impact on procedural law becomes even more evident.At an intermediate level，I have already mentioned the great discretion that prosecutors have in deciding what cases to pursue.No legislation could change this because no such legislation would ever carry with it a large enough appropriation of funds to permit all potential criminal acts to be investigated.What is true of the prosecutors is doubly true of the police.In any complex society, crime swirls around us at all times, much of it low level crime to be sure, but crime nonetheless.Walk down the streets of Beijing or Chicago, and you will see untold numbers of crimes being committed from littering to jaywalking to vehicular offenses to theft to assault and battery. The police, like the prosecutors, thus have discretion as to what crimes are investigated, whether we or our legal theories like it or not. Equally importantly, much of what a policeman does is not really law enforcement at all, but the management of complex situations, such as traffic flow or crowd control and the like.
This discretion has implications for procedural rules.I will give one stark example.Suppose one imposes limits on investigation, such as the right to be free from unreasonable searches and seizures contained in the fourth amendment to the U.S.Constitution.Suppose further that this is to be enforced through exclusionary rules that suppress evidence obtained in violation of the procedural rule, elements which of course can be found in the U.S.law.
Now suppose that the police and prosecutors view some social issue, such as prostitution, as a problem to be managed rather than involving crime to be solved.One way to“solve”the problem in the eyes of the local officials may be to make it go away by harassing those involved in it, with no intent to obtain convictions, thus encouraging those involved to“move on”to some other city or part of the country.The harassment might involve real on the street physical threats or violence, it might even involve a series of arrests, and so on.The point is that unless the police or prosecutors care about convictions, exclusionary rules will have no effect on their behavior.The law on the books appears quite regal; the law in action will be quite different.
2.The Relationship Between Substantive Law and Procedural Law.The decisions of the United States Supreme Court extending and enforcing individual rights have been viewed as imposing considerable constraints on the police and prosecutors, yet the legal system has not been greatly disturbed by these rulings.One reason, as just discussed, is that procedural barriers to prosecution matter only if anyone really is interested in prosecution.This is an example of the general point that these systems are dynamic and thus can and do respond to changes in various unpredictable ways.It is simply false to think that“reform”to a dynamic process can be imposed unproblematically through discrete measures that will have only the desired and no unintended consequences.Quite the contrary, human institutions like the criminal justice process are organic and infinitely adaptable, and in an astounding variety of ways.By far the most important but underappreciated example is that legitimate legislative changes can blunt virtually any procedural innovation that emerges from courts or law reformers.
Here I will use the fourth amendment limit on unreasonable searches and seizures as the example.Suppose the police want to stop cars to do cursory inspections for criminality, but courts rule that the fourth amendment requires that the police have probable cause that a crime has been committed before a car can be stopped.All the legislature need do to make this judicial command a practical nullity is to expand the criminal law to include more rigorous driving requirements.The legislature can essentially make it next to impossible to drive without violating a criminal statute（such as crossing the center line, driving too closely to the car ahead of you, not putting your turning light indicator on early enough or too early, etc.）.If the legislature passes such laws, the police will be able to stop virtually any car by following it until the driver violates one of statutes regulating driving.The stop will be on“probable cause”but the legislation will have expanded dramatically the potential sources of probable cause, thus subj ecting everyone to being stopped by the police whenever the police decide to do so, notwithstanding the attempt by the courts to forbid just that process.Similarly, if the government cannot seize certain information without probable cause, it can often instead require that individuals keep records of the information it wants and divulge those records to the government.
The general point is that as the criminal law expands, the actual constraining force of individual rights becomes attenuated, and this is a matter almost exclusively within the control of the political branches of government.This must be taken into account in order to understand how the pre-trial criminal process really works in the United States requires.
3.History and the Pursuit of Racial Equality.The significance of history to understanding any ongoing system is obvious, and I will not take time here to develop the point beyond noting that to understand what is, one must often understand what was.In addition to the general and obvious point that history determines to some extent present arrangements, much of the law of criminal procedure in the United States has developed as part of the national effort to eliminate the effects of racism.
4.Economics.Businessmen have a saying in the United States that“There is no such thing as a free lunch.”They mean by this that, if another businessman“invites”you to lunch, he probably wants to talk to you about something or may expect a favor in return.Whatever one thinks about the business world，it is literally true for government that“there is no such thing as a free lunch.”Governments are constrained by their economies, and economies in turn are finite.Of the many valuable things that, in theory, governments could do，they are able to choose to do only some of them.If resources are used for one purpose, there are simply fewer resources left to do other things, and there are in total too many different“things”to do to fund them all.
In thinking about the criminal justice system, the finite limitations of resources is critically important.One lesson of modern times is clear:No society can eradicate crime.There is simply too much crime in ever changing forms.Perhaps the best example of this is that, ironically, as resources are poured into the effort to eradicate crimes, other forms of crime spring up as a result, such as graft and corruption.Moreover, there is a limit to the methods that government can employ to combat crime.The toleration of the citizenry for aggressive investigation of crime may differ over cultures, but again modern history makes it clear that all cultures and societies have their effective limit beyond which government cannot go without sparking resistance and protest from the population.Consequently, difficult choices need to be made about the allocation of resources across the whole range of governmental interests, including the investigation and prosecution of crime.Crime and its investigation need to be conceived of as parts of a fluid and dynamic process rather than as discrete entities that can be perfectly managed.
I will give a few examples.Investments in the criminal justice process obviously compete with investments in other social goods.If government provides more judges, police, or funds counsel for poor people, less resources will be available for economic development or medical research, or whatever.As I suggested earlier, the police face an aspect of this problem daily.Faced with too much crime to be dealt with by their limits resources, they must constantly decide how to allocate their limited resources.Should the police patrol this part of the city or that part? Should they concentrate on economic crimes, crimes of violence, or fraud? Investments within the criminal justice process likewise compete with other investments in different parts of that same process.If government provides more judges, perhaps it can provide fewer police.
The implications of economics extends further.Consider for one last time the example of the right to counsel.As the ability of counsel for the accused to effect the criminal justice process increases, the more costly each case becomes to try.As the median cost of a case increases, the total number of cases that can be tried decreases.If the active involvement of defense counsel increases the total time a trial takes, obviously there can be fewer trials, as the total time available to try cases is finite.
In addition to the straight forward questions of allocation of resources, there is a second, perhaps more fundamental, economic perspective that is relevant to the structure of the criminal justice system, and that is the micro-economics of errors.A mistake free criminal justice system is not possible.It is critically important to recognize that two types of errors can be made-a wrongful conviction of an innocent person and a wrongful acquittal of a guilty person-and resource allocation decisions will affect the relationship between these two types of errors.
Reasonable people can disagree as to the significance of these two types of errors.In the United States, we structure the criminal justice process to minimize the possibility of wrongful conviction at the admitted expense of making many more mistakes of wrongful acquittals.In the United States, we say that it is better that ten guilty people go free than that one innocent person be convicted.Although the matter is complicated, this perspective explains in large measure the high standard of proof of beyond reasonable doubt in criminal cases and is another reason why counsel for the accused is viewed as so important in the United States.High standards of proof and legal representation will tend to protect innocent people even though they make convicting guilty people more difficult.
Viewing the criminal process through the economic lens highlights the difficult trade off between freedom and security that is perhaps the central thread running through my remarks today, and thus is perhaps a fitting place to conclude.Let me just say one last time that my purpose here today has been to neither praise nor criticize my system or yours, but instead to uncover some of the significant variables that must inform thinking about these important issues, whether the concern is reforming your system or understanding ours.I also want to reiterate in closing that, in thinking about the criminal justice processes of both our countries, it is critical to bear in mind that they form or-ganic wholes, and that changes in one part may have unintended effects in other parts.If, for example, counsel and an effective ability to contest the charges are not provided, costs will be reduced of conducting trials, but another form of cost in terms of wrongful convictions will increase, and vice versa.Thus, to think about the type of criminal justice process you want to have, you have to also think about these larger issues that I have identified.
Last, I want to reiterate that procedural codes and evidence law differ in one critical respect.Procedural law is indigenous and local; like substantive law, it reflects that particularities of time and place.Evidence law is universal；it is derivative of the nature of rationality and how the human mind comes to know and deal with its surroundings.There are, to be sure, policies that are limited to either the civil or criminal arenas that can be furthered through what we could call“evidence rules.”Normally, these are exclusionary rules that work in opposition to the overall obj ective of the efficient establishment of the truth.I am hesitant to offer you suggestions for change, but I would leave you with this one thought.In constructing your law of evidence, I would recommend that you begin with the universal and then deal with ways in which you wish to depart from the principle of the efficient establishment of the truth.If you do so, I think you will soon see that the law of evidence for the most part will be the same in all proceedings, with only a few minor exceptions.