This essay is Part 5 of our series from “Are Cops Constitutional?” by attorney and legal historian Roger Roots.
By Roger Roots
Elsewhere I described the limitation of common law grand jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an unconstitutional infringement of the Fifth Amendment Grand Jury Clause.420 The fact that most criminal charges are now initiated not by crime victims but by armed state agents who serve the state’s interests represents a drastic alteration of Founding-era criminal procedure.421 The suppression of grand jurors’ lawful powers belies the intent of the Constitution that law enforcement officials be subject to stringent oversight by the citizenry through grand juries. Modern policing, in effect, acts as a middleman between the people and the judicial branch of government that was never contemplated by the Framers.
The Fifth Amendment also prohibits the compulsion of self-incriminating testimony.422 Various competing interpretations ebbed and flowed from this provision until 1966, when the Supreme Court held that police are required to actually tell suspects about the Fifth and Sixth Amendments’ protections before interrogating them.423 The sheer volume of criticism by police organizations of the Miranda ruling over the next three decades indicates the strong state interest in keeping the Constitution’s protections concealed from the American public.
Modem police interrogation could scarcely have been imagined by the Framers who met in Philadelphia in the late eighteenth century. Police tactics such as falsifying physical evidence, faking identification lineups, administering fake lie detector tests and falsifying laboratory reports to obtain confessions are methods developed by the professionals of the twentieth century. 424 Against such methods a modern suspect stands little chance of keeping his tongue. Like the exclusionary rule and the entrapment defense, the Miranda rule operates as an awkward leveling device between the rights of American citizens and their now-leviathanic government.
In 2000, the Supreme Court upheld (indeed, “constitutionalized”) the Miranda rule in the face of widespread predictions that the police-favoring Rehnquist majority would abandon the rule.425 The Court delivered an opinion recognizing that “the routine practices of [police] interrogation [is] itself a relatively new development.”426 The Miranda requirement, according to Justice Rehnquist, was therefore justified as an extension of due process — a far more sustainable course than one extending from the wording of the Fifth and Sixth Amendments.427
The Dickerson decision illustrates the increasingly awkward peace between the Bill of Rights and the phenomenon of modern policing. Because the Framers did not contemplate wide-scale execution of government power through paid, full-time agents, modern jurisprudence reconciling the Bill of Rights with today’s police practices seems increasingly farfetched. Justices Scalia and Thomas dissented from the Dickerson majority with well-founded textualist objections, arguing that the majority was writing a “prophylactic, extraconstitutional Constitution” to protect the public from police.428 Yet in light of the extraconstitutional nature of modern police, the Dickerson majority opinion is no less consistent with the Framers’ constitutional intent.
Crime scenes preserved for prosecutor
Due process of law depends upon assurances that a level playing field exists between rival adversaries pitted against each other.429 The constitutional design pitted a citizen defendant against his citizen accuser before a jury of his (the defendant’s) peers. The state provided only the venue, the process, and assurances that the rule of law would govern the outcome. By comparison, a modern defendant is hardly pitted in a fair fight, facing the vast treasury and human resources of the state. While the criminal justice system of the Founding era was victim-driven, and thus self-limiting, today’s system is fueled by a professional army of police who measure their success in numbers of arrests and convictions.430
Police themselves often ignore standard concepts of fairness, official regulations, and statutes in their war on crime.431 Police agencies have even been known to develop institutional means to circumvent court attempts to equalize the playing field.432 In the face of unwanted publicity or controversy surrounding police brutality cases, police departments have been known to release arrest records to the media to vilify victims of police misconduct.433
Court system tilted toward state
The police model of law enforcement tilts the entire system of criminal justice in favor of the state. The police, though supposedly neutral investigators, are in reality an arm of the prosecutor’s office.434 Where police secure a crime scene for investigation, they in fact secure it for the prosecution alone and deny access to anyone other than the prosecution. A suspect or his defense attorneys often must obtain court permission to view the scene or search for evidence. Only such exculpatory evidence as by accident falls into the hands of the prosecution need be revealed to the suspect or defendant.435 In cases where police misconduct is an issue, police use their monopoly over the crime scene to prepare the evidence to suit their version of events.436
Mapp, Miranda and Dickerson notwithstanding, the tendency of modern courts to work around police practices, rather than nullify or restrain them, poses the very threat to due process of law the Framers saw as most dangerous to liberty. Instead of viewing the system as a true adversarial contest with neutral rules, judges and lawmakers have decided that catching (nonpolice) lawbreakers is more important than maintaining a code of integrity.437 The “sporting theory of criminal justice,” wrote Justice Warren Burger, “has been experiencing a decline in our jurisprudence.”438 In its place is a system where the government views the nonpolice lawbreaker as a threat to its authority and places top priority on defeating him in court.439
Source: Seton Hall Constitutional L.J. 2001, 685. Used by permission of author. Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.
Other parts in this series
How do Chattanoogans want ‘to be policed’? Abusive cops in age of corporate state
The rise of policing despite constitution; or how cops became legally superior, 1
Resisting arrest a constitutional right lost in rise of Progressivism, 2
Body cams will make cops more visible as standing army, 3
Loss of private arrest power, rise of warrantless arrests by state actors — liberties largely fade, 4
420 See Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).
421 See id.
422 See U.S. CONST. amend. V (providing no person “shall be compelled in any criminal case to be a witness against himself).
423 See Miranda v. Arizona, 384 U.S. 436 (1966).
424 See SKOLNICK & FYFE, supra note 63, at 61.
425 See Dickerson v. United States, 530 U.S. 428 (2000).
426 Id. at 435 n. l.
427 See id. at 435.
428Id. at 434 (Scalia, J., dissenting).
429 C.f. Hayes v. Missouri, 120 U.S. 68, 70 (1887) (recognizing that impartiality in criminal cases requires that “[b]etween [the accused] and the state the scales are to be evenly held”); Unites States v. Singleton, 165 F.3d 1297, 1314 (10th Cir. 1999) (Kelly, J., dissenting) (speaking of “the policy of ensuring a level playing field between the government and defendant in a criminal case”).
430 See BOOZHIE, supra note 10, at 238.
431 See id.
432 G. Gordon Liddy points out in his 1980 autobiography Will that when the courts began requiring that the FBI provide defense attorneys with FBI reports on defendants, the FBI circumvented such orders by recording investigation notes on unofficial attachments which were never provided to the defense. See G. GORDON LIDDY, WILL 354 (1980).
433 See, e.g., id. at 216 (reporting 1996 St. Louis case in which police released arrest record of dead person whom police had killed to damage his reputation); id. at 238 (reporting 1998 New York case in which police released rap sheet of their victim but withheld identity of involved officers); id. at 240 (reporting case in which police revealed dead suspect was on parole and used his case to call for abolishing parole).
434 Perhaps the most extreme example of lopsided investigative resources occurred in the Oklahoma City bombing case in 1995. Defense attorneys complained that “the resources of every federal, state, and local agency in the United States” were at the government’s disposal — including a 24-hour FBI command center with 400 telephones to coordinate evidence-gathering for the prosecution. See Petition For Writ of Mandamus of Petitioner-Defendant, Timothy James McVeigh at 13, McVeigh v. Matsch (No. 96-CR-68-M) (10th Cir. Mar. 25, 1997). In contrast, the defense complained that “without subpoena power, without the right to take depositions, and without access to national intelligence information, the McVeigh defense can go no further.” Id. at 4.
435 See Brady v. Maryland, 373 U.S. 83 (1963) (finding that suppression of evidence favorable to defense violates due process). Prosecutors are required by the Brady doctrine to reveal exculpatory evidence in their possession or in the possession of the investigating agency. See United States v. Zuno-Arce, 44 F3d 1420 (9th Cir. 1995). Only one federal court of appeals has held that prosecutors are imputed to hold knowledge of information “readily available” to them and require such knowledge to be transferred to the defense. See Williams v. Whitley, 940 F2d 132 (5th Cir. 1991). However, nothing in the law mandates that police look for exculpatory evidence.
436 See, e.g., STOLEN LIVES, supra note 123, at 248 (reporting 1997 New York City case in which officers closed off scene of shooting by police for a half an hour after the shooting). Upon being allowed to enter the shooting scene, observers noticed that police had moved large kitchen table to the side of room to make police claim that victim (who had apparently been on other side of the table from officers) had lunged at them more plausible. See id.
437 See BOOZHIE, supra note 10, at 238.
438 Brewer v. Williams, 430 U.S. 387, 417 (1977) ( Burger, J., dissenting).
439 BOOZHIE, supra note 10, at 238.