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DRIPPSMACRO 637 8/11/99 4:16 PM Miscarriages of Justice and the Constitution Donald A. Dripps* Accurate fact-finding surely counts as a primary purpose of criminal procedure. Conventional wisdom holds that our system is highly successful at preventing erroneous convictions, but far less successful at preventing erroneous acquittals or dismissals. This asymmetry is commonly attributed to the rights of the accused,1 particularly the constitutional safeguards in the Bill of Rights.2 This essay challenges the conventional wisdom on three important fronts. First, while the common belief that many guilty people go unwhipped of justice accords with the facts, the prevailing belief that few innocent people are convicted seems quite improbable. Our criminal justice system, then, needs to do better at both convicting the guilty and acquitting the innocent. Second, despite the Warren Court’s criminal procedure revolution, constitutional law does remarkably little to prevent unjust convictions. The criminal procedure revolution made the Bill of Rights for the most part applicable to the states through the Fourteenth Amendment. The Bill of Rights, however, provides quite inadequate safeguards against unjust conviction. The Fifth * James Levee Professor of Law and Criminal Procedure, University of Minnesota Law School. Thanks to Richard Frase of helpful comments on an earlier draft. Responsibility for the opinions expressed is solely the author’s. 1. See, e.g., Ronald J. Allen, The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets, 67 U. Colo. L. Rev. 989, 1009 (1996) (“A lot of guilty people walk. It is the price we pay for a lot of things, like protecting innocent people wrongly accused, reducing government intrusions on privacy, and ensuring that private citizens be treated with a certain degree of dignity and respect.”). 2. See, e.g, James J. Tomkovicz, An Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev. 1, 92 (1988) (“Such social costs are inherent in the adversary system, in the grant of counsel, and in our commitment to values beyond truth. We pay a similar price for every ‘criminal’ protection in the Bill of Rights.”). DRIPPSMACRO 8/11/99 4:16 PM 638 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] and Sixth Amendment provisions relating to trial procedure indeed ensure that the trial will be fair, but they do not speak to the fairness of the antecedent investigation by the police. Fourth, Fifth and Sixth Amendment doctrines regulating police investigation focus on preventing police abuse of citizens outside the process of formal prosecution, not on ensuring that the evidence the police are allowed to gather is collected reliably and comprehensively. If constitutional doctrine is to do anything more to prevent miscarriages of justice, lawyers and judges must turn to the Due Process Clause, not to the Bill of Rights. Third, while society indeed pays a price for constitutional rights, constitutional doctrine leaves more room than is commonly supposed3 for procedural reforms calculated to prevent the escape of the guilty. In one form or another, the single most important cause of lost but deserved convictions is the failure of witnesses to cooperate with the government. Legislatures, judges, and police administrators could obviate much of the witness noncooperation problem by arranging for the prompt questioning of witnesses before trial. The immediate accusation and assignment of counsel that would enable cross-examination of witnesses before trial could coexist with the existing rules of police interrogation. The Constitution, however, even as presently construed, also leaves room for reforms aimed at questioning the suspect before trial, after accusation and assignment of counsel. In short, our criminal process does not fulfill its instrumental mission very well, but the Constitution is not the major cause of the system’s deficiencies. With respect to reducing the frequency of unjust dismissals or acquittals, the Constitution does not stand in the way of reforms that might improve the system’s performance. With respect to reducing the frequency of unjust convictions, the 3. For example, Gordon Van Kessel identifies constitutional criminal procedure as the leading obstacle to reforming criminal justice to facilitate truth- finding. See Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403, 486 (1992). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 639 Constitution even now offers hope—politically speaking, the only hope—for significant reforms. Part I develops the evidence suggesting the system’s deficiencies. Part II connects constitutional doctrine to unjust convictions. Focusing on eyewitness identification evidence, Part II explains why the prevailing doctrinal focus on the Bill of Rights tolerates unreliable investigations. Part III turns to the problem of unjust acquittals, and suggests that Fifth and Sixth Amendment doctrine permit some promising reforms aimed at convicting more of the guilty. I. THE DISTURBING FREQUENCY OF MISCARRIAGES OF JUSTICE A. False Convictions The conventional wisdom is reassuring. Learned Hand believed the risk of unjust conviction to be “an unreal dream.”4 A recent survey of judges, prosecutors and defense lawyers found that the most common estimate of the frequency of false convictions was 0.5%.5 In a thoughtful article, Samuel Gross thought it plausible to assume that 95% of charges are true and that 80% of cases of mistaken identity are weeded out before trial.6 Even so zealous a defense lawyer as Allen Dershowitz takes the view that “[a]lmost all criminal defendants are, in fact, guilty.”7 Along with others,8 I have long suspected this comforting view. After all, what other decision-making 4. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923). 5. C. Ronald Huff et al., Convicted but Innocent: Wrongful Conviction and Public Policy 61 (1996). 6. Samuel Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. Legal Stud. 395, 451 (1987). 7. Alan Dershowitz, The Best Defense xxi (1982). 8. See Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 Rutgers L. Rev. 1317 (1997); Martin Yant, Presumed Guilty (1991). DRIPPSMACRO 8/11/99 4:16 PM 640 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] process run by the government is practically infallible? My skepticism is now reinforced by disturbing evidence drawn from DNA test results in criminal investigations. DNA tests have cleared several innocent persons who had been convicted of serious crimes. There is nothing terribly new about this research angle. More than sixty years ago Borchard published a classic book documenting case studies of false convictions.9 Borchard had little trouble identifying the causes of false convictions: erroneous eyewitness identifications,10 official misconduct,11 and inadequate defense representation.12 Sadly, the DNA case studies show the same factors at work, despite the Warren Court’s criminal procedure revolution.13 Case studies, however, shed no real light on the question of how frequently false convictions occur. Obviously, the case studies mark the low estimate of how many false convictions occur, but just as obviously in many cases of false conviction conclusive evidence of innocence never surfaces. The really startling fact is the frequency with which DNA tests exonerate suspects under investigation by the police. A Department of Justice study found that, out of a sample of more than 21,000 cases, DNA testing exonerated the suspect in 23% of the cases.14 In another 16% of the 9. Edwin M. Borchard, Convicting the Innocent (1932). 10. See id. at xiii (“Perhaps the major source of these tragic errors is identification of the accused by the victim of a crime of violence.”) 11. Id. at xv (“Yet in only a few of the cases can it be said that no fault, carelessness, or overzealousness can be charged to the prosecution.”). 12. See id. at xx (“In the majority of these cases the accused were poor persons, and in many of the cases their defense was for that reason inadequate.”) 13. See Peter Neufeld & Barry Scheck, Commentary, in Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial at xxx (1996), (“Interestingly, in many respects the reasons for the conviction of the innocent in the DNA cases do not seem strikingly different than those cited by . . . Borchard . . . . Mistaken eyewitness identification, coerced confessions, unreliable forensic laboratory work, law enforcement misconduct, and ineffective representation of counsel, singly and often in combination, remain the leading causes of wrongful convictions.”). 14. Connors et al., supra note 13, at 20. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 641 cases, DNA tests produced inconclusive results.15 In other words, in those cases in which there was a conclusive DNA test result (a sample of many thousands of cases), 27% of the suspects were exonerated by the test.16 If the cases selected for DNA testing are representative of cases at large, then our trial process is being trusted to negative far more unfounded charges than commonly supposed. The DNA cases might differ from other cases in some ways. First, DNA cases tend to be serious cases, involving a strong community demand for justice. Second, prosecutors might decline to seek DNA evidence to gild the lily of a strong case. An inconclusive result might muddy the waters at trial, and there is the expense to consider. Third, DNA tests might be done on nonsuspects to exclude persons whom the defense might cast in the role of the real culprit. None of these explanations seems very powerful. True, the pressure to obtain a conviction in a high-profile rape or homicide case might tempt police and prosecutors to look hard for ways to pin the offense on some luckless innocent. Serious cases, however, are the focal point of concern about miscarriages of justice; they are the cases with the most serious consequences attending false conviction. If “heater” cases17 have a higher error rate than ordinary cases, we should still be concerned about the system’s reliability when the stakes are high. Moreover, “heater” cases involve not only more pressure to convict, but also the devotion of additional 15. Id. 16. There are no apparent system factors that might have changed recently to suggest that the frequency of exonerations might decline. At the moment, in cases processed by the Minnesota Bureau of Criminal Apprehension, “[a]bout 35 to 40 percent of initial suspects in criminal cases are cleared after DNA analysis.” Reuben Rosario, Crime Lab Serves Justice Through Science: Unsung Heroes of Law Enforcement Wear White Coats, St. Paul Pioneer Press, Dec. 1, 1997, at 1B, 5B. 17. I borrow the label from Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75 (1992). In Chicago courthouse jargon, a “heater” case is a prosecution of a notorious crime, characterized by an intense public demand for retribution. DRIPPSMACRO 8/11/99 4:16 PM 642 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] resources to the investigation. The police may be more willing to give up and close the investigation of a less serious offense, but it is also true that an innocent person mistakenly suspected of a less serious crime will not be exonerated by further police work on the case. Anyone who fits will do. If a brief investigation shows that nobody fits, the police in a minor case will give up. But if the brief investigation shows that somebody fits—or even sort of fits—the investigation will go no further. As for the testing of nonsuspects, DNA testing is expensive and time-consuming. The police ordinarily do not have tests done on anyone who is not a strong, if not the prime, suspect. Typically the government has probable cause before obtaining a tissue sample from the suspect, although the development of DNA databases may change the situation. In short, the sample of persons tested is pretty close to a sample of persons who would, in the absence of DNA evidence, have gone to trial. Prosecutors may not wish to endanger a strong case with an inconclusive test result,18 but prosecutors must also consider the possibility that the jury will expect DNA evidence and hold its absence against the government.19 Moreover, the last nail in the coffin has considerable utility. Positive test results can persuade the defense to plead guilty, or persuade the prosecution to reject a generous plea agreement. In other words, at least in serious cases that do not rest on overwhelming evidence of guilt—the cases the trial process is for—a significant number of defendants who go to trial are not guilty. The truth-finding mission of the trial is more than rhetoric; it is deadly serious business. There is a widespread but unmentionable view to the 18. See Givelber, supra note 8, at 1376 (“The weaker the prosecution’s case, the more likely that the prosecutor will seek additional evidence from DNA testing.”). 19. See Lisa Bouwer Hansen, Stemming the DNA Tide: A Case for Quality Control Guidelines, 16 Hamline L. Rev. 211, 245 n.226 (“In fact, in some cases, the jury may expect DNA evidence to be presented and may consider it significant when it is not.”) (citation omitted). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 643 contrary, which might fairly be labeled “legal cynicism.” On this account, the trial is not meant to test truth at all, but to ratify the police investigation without the necessity of substituting police investigation for trial by constitutional amendment. Because the constitutional safeguards and nonconstitutional exclusionary rules, such as those barring proof of a defendant’s record, make it nearly impossible to convict the guilty with probative evidence, it becomes necessary for the police to extract admissions by fraud or fear, induce accomplice testimony, and prompt eyewitness identifications. These forms of proof, although of dubious reliability, nonetheless persuade pliable jurors. Since the rules of evidence keep the reliable evidence from the jury, it becomes necessary and even desirable to convict those known by the police to be guilty on the force of unreliable evidence. As we shall see, the Constitution, for the most part, enables evidentiary reforms that would promote convicting the genuinely guilty. But even if this were not true, we should reject legal cynicism because the police simply do not know who is guilty and who is not. Basing their guesses on prior records and the whispers of informants, the police turn out to be quite wrong in a large percentage of cases. Perhaps the rules of evidence are more rational than supposed. At any rate, the rules of evidence can be made more rational than they are. The trial, therefore, should test the truth, not the good faith of the police. There is some goods news about the system in the research on false convictions. The case studies of false convictions are virtually devoid of convictions entered on a plea of guilty.20 Perhaps innocent people often plead guilty, but the plea terminates the search for exonerating evidence on their behalf. Still, plenty of defendants plead guilty while maintaining their innocence to friends and family. 20. See Gross, supra note 6, at 415 (only two out of 97 false convictions in sample resulted from guilty pleas); Connor et al., supra note 13, (out of 28 cases involving falsely convicted defendants later exonerated by DNA testing, only one (Vasquez) pleaded guilty). But see Huff et al., supra note 5, at 73-74 (“Many innocent defendants are convicted after entering guilty pleas.”). DRIPPSMACRO 8/11/99 4:16 PM 644 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] Because most convictions result from pleas, not from trials, we can take some comfort from the scarcity of demonstrably false guilty pleas. The frequency of exculpatory DNA test results suggests that many innocent defendants go to trial. The case studies of false convictions show how the trial process can fail to protect the innocent. The major reasons, in order of importance, are inaccurate identifications, official misconduct, and ineffective defense counsel.21 False confessions and bad luck play roles as well. Perhaps surprisingly, these are the same factors that Borchard pointed out more than sixty years ago.22 Studies since Borchard’s have shown the same causes.23 How could the criminal procedure revolution have done so little to promote the reliability of the trial process? And is there anything legal doctrine can do to improve the situation? Part II takes up these questions, but first we must survey the other side of the coin. How often does our system of criminal procedure permit the guilty to escape? B. Unjust Dismissal and Acquittals A great many crimes are not reported, and a great many reported crimes are not cleared by the police. No doubt public policy can encourage reporting and facilitate the identification of offenders. Rape shield laws and computerized fingerprint databases offer illustrations. My present focus, however, is on the effectiveness of our adjudicatory procedures in convicting arrested suspects who are, in fact, guilty. The prevailing view among scholars,24 judges,25 and 21. See supra notes 9-13; Huff et al., supra note 5, at 66-82. 22. See supra notes 9-13. 23. See Jerome Frank & Barbara Frank, Not Guilty 199-249 (1957); Edward Radin, The Innocents 17-53 (1957) (police and prosecutorial misconduct); id. at 85-104 (identifications); id. at 233-34 (inadequate defense representation). 24. See, e.g., Givelber, supra note 8, at 1321 (“America’s criminal justice system creates a significant risk that innocent people will be systematically convicted. It also creates a distinct and presumably larger risk that the guilty will be acquitted.”); Gross, supra note 6, at 451 (assuming for purposes of DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 645 ordinary citizens26 holds that a great many guilty defendants escape their just deserts. Now this proposition derives some of its support from the premise that almost all criminal defendants are guilty. Given this premise, the figures on case attrition—the frequency with which arrests and even formal charges do not lead to convictions—offer obvious proof of widespread unjust acquittals and dismissals. Roughly speaking, half of all arrests do not end in conviction.27 Perhaps, however, case attrition reflects the weeding out of weak cases, including many cases against innocent defendants. If the skeptical view defended earlier about the system’s success at avoiding unjust convictions is well- taken, however, the syllogism loses some of its force. We do not know for sure that the vast majority of cases lost by the prosecution are, in fact, meritorious. Nor can many dismissals or acquittals be attributed to exclusionary rules of evidence that benefit the patently guilty. A few guilty defendants indeed escape justice in this way, but any fair view of the empirical evidence suggests that very small percentages of cases are lost on Fourth or Fifth Amendment grounds.28 Some time back I illustration that out of 950 cases against guilty defendants, 140 would be dismissed and 35 acquitted at trial). 25. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 416 (1971) (Burger, C.J., dissenting) (exclusionary rule frees “countless guilty criminals”); Harold J. Rothwax, Guilty: The Collapse of Criminal Justice in America (1996). 26. See, e.g., U.S. Dep’t of Justice, Sourcebook of Criminal Justice Statistics 1996 at 118 tbl. 2.9 (1997) (asked how much confidence they had in the criminal justice system, 20% of respondents said a great deal or quite a lot; 40% said some; and 35% said very little); id. at 149 tbl. 2.50 (asked whether courts in the community deal too harshly, about right, or not harshly enough with criminals, 78% of 1996 respondents said not harshly enough). 27. See, e.g., Yale Kamisar et al., Modern Criminal Procedure 25 (8th ed. 1994) (“Studies on the attrition of felony arrests do indicate, however, that the combination of pre-filing review and post-filing review is likely to produce a total rejection rate in the neighborhood of 50% for a ‘typical’ urban jurisdiction.”); Brian Forst, Criminal Justice System: Measurement of Performance, in 2 Ency. of Crime & Justice 479 (Sanford Kadsih ed. 1983) (typical rate of conviction following arrest is 50%); Givelber, supra note 8, at 1136-1338 (in 1990, survey of 75 largest counties in the United States found that 42% of defendants charged with violent felonies had case dismissed). 28. On the Fourth Amendment, see Thomas Davies, A Hard Look at What We DRIPPSMACRO 8/11/99 4:16 PM 646 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] characterized such losses as “exotic,”29 and since then the Supreme Court has made the rules more generous to the police and trial courts have become generally more conservative, less sympathetic to suppression motions.30 The process of case attrition, however, bears a remarkably arbitrary relation to the probability of the defendant’s guilt. A series of studies in the 1980’s found that the most common reason for loss of a case is witness non-cooperation.31 The situation has not changed for the Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Studies of “lost” Arrests, 1983 A.B.F. Res. J. 611; Peter Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F. Res. J. 585; Report of the Comptroller General, Impact of the Exclusionary Rule on Federal Criminal Prosecutions (Rep. No. CDG-79-45). On the impact of Miranda, compare, e.g., Paul Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387 (1996) with Stephen Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500 (1996) and Paul Cassell, All Benefits, No Costs: The Grand Illusion of Miranda’s Defenders, 90 Nw. U. L. Rev. 1084 (1996) and Stephen Schulhofer, Bashing Miranda is Unjustified—and Harmful, 20 Harv. J.L. & Pub. Pol’y 347 (1997) and Paul Cassell, Miranda’s “Negligible” Effect on Law Enforcement: Some Skeptical Observations, 20 Harv. J.L. & Pub. Pol’y 327 (1997). Even Professor Cassell concedes that approximately eighty percent of interrogated suspects waive their Miranda rights. See Cassell, An Empirical Reassessment, 90 Nw. U. L. Rev. at 493-494. It seems highly unlikely that many of the suspects who invoke their Miranda rights could be induced to make incriminating admissions by tactics that would survive scrutiny under a reinvigorated voluntariness test of the sort Professor Cassell envisions. Moreover, the police have an incentive to work harder at obtaining waivers, and admissions, from suspects in cases that depend on obtaining incriminating admissions. Thus even if Miranda causes a few suspects not to talk, there is no reason to think that these suspects would have given statements that were necessary and sufficient for a conviction in the absence of Miranda. 29. Donald Dripps, Beyond the Warren Court and its Conservative Critics: Toward a Unified Theory of Constitutional Criminal Procedure, 23 U. Mich. J.L. Reform 591, 626 (1990). 30. See Thomas Y. Davies, Exclusionary-Rule Exception Flies in the Face of the Fourth Amendment, Chi. Trib. Feb. 20, 1995, at 19. All of the available statistics consistently show that only between one-half and two and one-half percent of felony arrests are ‘lost’ in American jurisdictions because of unconstitutional searches. The rate is probably about twice that range if only drug cases are concerned, but it is virtually zero in violent crime arrests. The Supreme Court and even the Reagan Justice Department accepted these estimates a decade ago, and these ranges would almost certainly be even lower today. Id. 31. See Floyd Feeney et al, Arrests Without Conviction: How Often They DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 647 better, and may have changed for the worse.32 Sometimes the case is continued so often that witnesses who have appeared to no avail on several prior occasions lose interest and give up. Sometimes the defendant or his sympathizers have intimidated the witnesses. Sometimes the witness is reached by bribes rather than by threats. Sometimes, in domestic violence or sexual assault cases, there has been a rapprochement between the witness and the defendant. As that noted evidence scholar Mr. Dooley put it, “nothing walks itself into evidence.” The system is troubled little indeed by the suppression of physical evidence or confessions, but very greatly vexed by the loss of witnesses. Sometimes witnesses will drop out of an apparently strong but factually false case. There is nothing to prevent a gang-banger, coincidentally charged with a crime he did not commit, from intimidating or bribing the mistaken eyewitnesses. Likewise there is nothing that says that an innocent defendant may not succeed in the game of continuing the case until the witnesses does not show up. But there is likewise no reason to suppose that the witnesses are less likely to cooperate in the prosecution of the innocent than in the prosecution of the guilty. The empirical studies on case attrition do not attribute a significant share of dismissals to factual innocence.33 No doubt some lost cases involved innocent people, but there Occur and Why 196-99 (1983) (summarizing studies); Brian Forst et al, Arrest Convictability as a Measure of Police Performance 9-10 (1982). Particularly striking . . . is the extent to which witness and evidence problems were recorded as reasons for arrests being rejected at screening. In each of the jurisdictions [studied], at least 50 percent of the arrest rejections were attributed to those two problems, and in three jurisdictions the percentage was 70 or higher. Id.; Michael Graham, Witness Intimidation 1-8 (1985) (reviewing studies). 32. See generally Witness Intimidation: Showdown in the Streets— Breakdown in the Courts, Hearings Before the House Committee on the Judiciary, 103d Cong., 2d Sess. (1994). 33. See Feeney et al, supra note 31, at 243 (“Most suspects who are arrested but not convicted are thought by police and prosecutors to be guilty. Many cases of this kind are dropped for evidentiary reasons but could and probably ought to be salvaged.”). DRIPPSMACRO 8/11/99 4:16 PM 648 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] is, sadly, no reason to suppose that innocent defendants are more likely to be found in the cases that are dismissed than in the cases that go forward. Even if the witnesses cooperate, the trial may result in a mistaken acquittal. Kalven and Zeisel found that in 20% of the acquittals in their sample, the trial judge thought there should have been a conviction.34 The judges may be wrong, or basing their opinion on information the jury didn’t hear, like arrest reports and prior convictions. On the whole, however, it seems likely that juries acquit at least some defendants who are not only guilty but whom the evidence shows to be guilty. If we recall, however, that the majority of convictions result from pleas, we can see that the real hole in the system is not in the trial, but in the pretrial stage.35 Once it becomes clear that the government has a strong case, the factually guilty plead in large numbers. This tendency in turn suggests that jury trials do not run a terribly high risk of false acquittal, or far more guilty defendants would opt for trial. It also suggests that if the government can secure a strong case that can be used at trial, no matter whether or how the witnesses testify at the trial, the biggest single hole in the system would be plugged. The obstacles to such a strategy are the hearsay rule and its constitutional counterpart, the Sixth Amendment Confrontation Clause. The difficulty of the challenge can be gauged from the failure of the law-and-order types to condemn these sweeping exclusionary rules. The right to cross-examine the government’s witnesses in a criminal case is rightly thought to be an essential safeguard against unjust conviction. Thus it would seem that the system lies between a rock and a hard place. Trial judges can either require the witnesses to testify at the trial, which many of 34. See Harry Kalven, Jr. & Hans Zeisel, The American Jury 68 (1966). 35. Acquittal after trial terminates one percent of state prosecutions and 2.8% of federal prosecutions. David Luban, Are Criminal Defenders Different?, 91 Mich. L. Rev. 1729, 1729 (1993) (footnotes omitted). By contrast, one study found that 23% of a sample of more than 1500 cases were dropped because of witness noncooperation. See Graham, supra note 31, at 4. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 649 them will refuse to do, or admit police versions of what witnesses said at the time of the crime, when the witnesses themselves may very well deny that those statements were made or now tell a different version of the facts. This apparent collision between the instrumental functions of adjudication and the constitutional rights of the accused, however, is as overstated as the claim that constitutional safeguards make convicting the innocent next to impossible. My claim here is that the Constitution can be construed to significantly reduce the risk of unjust conviction, and that even as presently construed, the Constitution permits reforms that would significantly reduce the number of unjust dismissals. Some innovative but plausible constitutional interpretations could reduce the number of unjust dismissals still further. II. WHY THE CONSTITUTION DOESN’T HELP THE INNOCENT MUCH, AND HOW IT COULD DO MORE TO HELP THEM A. Constitutional Law for the Innocent: Diagnosis and Prescription The Warren Court cases indeed worked a revolution in the administration of justice in the states. The revolution, however, took the doctrinal form of incorporating the Bill of Rights into the Fourteenth Amendment. The “fundamental fairness” test of due process that governed state prosecutions from Hurtado v. California36 until, roughly, Mapp v. Ohio,37 has never been officially repudiated. The constitutional spotlight, however, shines quite distinctly on the Fourth, Fifth, and Sixth Amendments. From the standpoint of protecting the innocent, this regime is disappointing. Some items in the Bill of Rights are key components of due process and critical safeguards against unjust conviction. Notice, counsel, confrontation, 36. 110 U.S. 516 (1884). 37. 367 U.S. 1 (1961). DRIPPSMACRO 8/11/99 4:16 PM 650 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] and compulsory process all promote accurate adjudication. These provisions fall far short, however, of what accurate adjudication requires. Many other provisions in the Bill of Rights protect persons not charged with any offense against government overreaching during the investigation of crimes. Fourth Amendment limits on searches and seizures, and Fifth Amendment limits on interrogation, do not promote accurate adjudication, except in the important sense that they prevent blameless people from official abuse without any trial at all. Important as that function is, it does not help the falsely accused defendant avoid unjust conviction. Indeed, the Fifth Amendment privilege against self- incrimination can actually frustrate the defense of the innocent. To go beyond the important but inadequate safeguards in the Bill of Rights, an innocent defendant must look either to statutory law or to the Due Process Clause. The statutory turn can be dismissed pretty quickly. Legislatures, state and federal, operate under overwhelming tough-on-crime political pressures. These pressures, in turn, are quite rational. Most citizens face zero risk of unjust prosecution, but considerable risk of crime. From their perspective, Blackstone’s ten to one ratio is empty rhetoric. Honestly rephrased to express today’s politics, the aphorism would go like this: “Better that several innocent young black men should be convicted than that one guilty young black man should be acquitted.” So long as street crime is the province of young males, and so long as crime is higher in minority communities, police suspicion will be aimed at young, disproportionately black, men. Police errors will fall along with police successes on the politically marginalized members of the target class.38 That leaves the Due Process Clause. The Burger and Rehnquist Courts have not questioned the incorporation decisions, but have very much narrowed the meaning of the 38. For a fuller treatment, see Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?, 44 Syracuse L. Rev. 1079 (1993). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 651 Bill of Rights provisions. In response, one might have anticipated that litigants would bring due process challenges to circumvent the prevailing conservative interpretation of the incorporated amendments. The Court, however, has taken the view that the incorporated amendments define due process in criminal cases, and that free-standing due process claims are to be rather skeptically received. For example, excessive force claims against the police practically cry out for due process analysis, for in such cases the suspect’s claim is that the police have bypassed the trial and imposed their own brand of unofficial punishment.39 But the Court has insisted on analyzing excessive force and even excessive deadly force cases under the Fourth Amendment,40 preferring to say that a suspect shot to death by the police has been “seized” rather than “deprived of life.”41 While the Court’s opinions contain dicta suggesting the substantive due process might prohibit police practices that fall outside the scope of “searches and seizures,”42 neither the Burger nor the Rehnquist Court has ever reversed a conviction because the police practices were shocking to the conscience. Thus the conservative Court practically has banned due process analysis from police practices cases, leaving the field regulated solely by the Fourth, Fifth and Sixth Amendments. This is a grave disservice to innocent suspects. Pretrial procedure can leave the criminal defendant facing erroneous but now entrenched identification testimony, without the benefit of exculpatory physical evidence the police neglected to collect or preserve, defended by an overworked lawyer with no time to conduct 39. See Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973); Bradley M. Campbell, Excessive Force Claims: Removing the Double Standard, 53 U. Chi. L. Rev. 1369, 1390-91 (1986) (“The underlying concern when police use excessive force is precisely that the police have been able to ‘skip the trial’ and proceed directly to punishing the detainee.”). 40. Graham v. Connor, 490 U.S. 386 (1989). 41. Tennessee v. Garner, 471 U.S. 1, 9 (1985). 42. See United States v. Russell, 411 U.S. 423, 432 (1973); Hampton v. United States, 425 U.S. 484, 495 n.7 (Powell, J., concurring). DRIPPSMACRO 8/11/99 4:16 PM 652 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] a new investigation. This can (and does) happen, without any unreasonable searches, without any compelled testimony, and without any denial of counsel. The distinction between investigation and adjudication is far less palpable than current doctrine admits. When defendants have challenged clearly adjudicatory procedures on procedural due process grounds, the modern Court has continued the basic confusion of substantive and procedural due process. After some early willingness to apply the administrative due process balancing test of Mathews v. Eldridge43 in criminal cases,44 in Medina v. California45 the Court took a very different approach. The issue in Medina was whether a state rule casting upon the defendant the burden of proving incompetence to stand trial by a preponderance of the evidence violated due process. The defendant attacked this allocation of the burden of proof under the Eldridge test. Writing for the Court, Justice Kennedy rejected both the specific claim and the reliance on Eldridge: In the field of criminal law, we have defined the category of infractions that violate fundamental fairness very narrowly based on the recognition that, [b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order. The proper analytical approach, and the one that we adopt here, is that set forth in Patterson v. New York, which was decided one year after Mathews. 43. 424 U.S. 319 (1976). 44. See United States v. Raddatz, 447 U.S. 667, 677-79 (1980); Ake v. Oklahoma, 470 U.S. 68, 77-83 (1985). 45. 505 U.S. 437 (1992). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 653 It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. As Patterson suggests, because the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition, it is appropriate to exercise substantial deference to legislative judgments in this area. The analytical approach endorsed in Patterson is thus far less intrusive than that approved in Patterson.46 Note how the Court repeatedly slips back into the language of “fundamental fairness,” a substantive due- process concept, to articulate the proper inquiry into procedural fairness. Note also how Justice Kennedy deploys the case for judicial restraint in substantive due process cases as a reason for taking a lamentably narrow approach to procedural due process questions. In Medina, the Court consulted common-law practice, found “no settled tradition on the proper allocation of the burden of proof in a proceeding to determine competency,”47 and therefore rejected petitioner’s historical argument. But the Court then rather pointedly went on to conduct a purely instrumental analysis. In the language of the opinion, “[d]iscerning no historical basis for concluding that the allocation of the burden of proving incompetence to the defendant violates due process, we turn to consider whether the rule transgresses any recognized principle of 46. Id. at 443-46 (citations and all internal quotations marks omitted). 47. Id. at 446. DRIPPSMACRO 8/11/99 4:16 PM 654 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] ‘fundamental fairness’ in operation.”48 In this portion of the opinion, the Court frankly consulted instrumental considerations in light of the special character of the criminal process. The majority rejected the State’s contention that precedents upholding shifting the burden of proving the insanity defense to the defendant compelled rejection of Medina’s claim because competence goes to the present ability to conduct one’s defense, not the past ability to understand or control one’s behavior. Nor was the case analogous to burden allocation cases involving suppression motions, where the object is deterring police misconduct. The Court considered, but rejected, the argument that competence is so vague a concept that borderline cases must be resolved in favor of the defendant. In the end, what due process requires is “a reasonable opportunity to demonstrate that he is not competent to stand trial.”49 Given that the preponderance of the evidence standard makes the burden of proof only a tie-breaker, the State’s procedure satisfied this standard. Note that Justice Kennedy supports his position not with the text of the Fourteenth Amendment, nor with any inference from its historical purposes. And while the Medina opinion relies on Patterson, it openly admits that other cases have taken quite different analytical approaches. Justice Kennedy’s case for choosing Patterson relies on federalism and the absence of standards to guide due process analysis, not on any consistent command from the precedents. The various attitudes brought together by the Medina opinion make a good deal of sense so long as questions about criminal procedure are asked in substantive due process terms. Substantive due process has a questionable textual warrant, an unsavory history, and lies at the center of the violent arguments about Roe v. Wade.50 So the justices are naturally a little ginger about substantive due process, and they look to history and tradition to constrain the exercise of their constitutional 48. Id. at 448. 49. Id. at 451. 50. 410 U.S. 113 (1973). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 655 chancellor’s foot. But there is another way of asking criminal procedure questions, in terms of procedural due process. In a substantive due process analysis, the question is: Does the state’s procedure violate the unenumerated limits on the state’s police power, by offending fundamental rights validated by tradition? In a procedural due process analysis, the question is: Does the state’s procedure subject the individual to an unacceptably high risk of an erroneous decision? Indeed, hidden within the Medina opinion is the ghost of procedural due process, struggling to be heard. If we strip away the references to fundamental fairness, what the Medina Court actually did was to recognize two ways for a defendant to challenge a state rule on procedural due process grounds. One approach is historical; if a founding- era consensus against the state’s procedure can be shown, the state loses. The other approach is instrumental, i.e., whether the procedure is unfair “in operation.” Despite all the language in Medina about history, it seems pretty clear that the historical avenue is illusory, leaving in practice only the instrumental test. Suppose a criminal defendant shows a complete common-law consensus to the effect that a perfectly reliable type of evidence should be excluded. For example, a child abuse defendant moves to bar the victim, now six years old, from testifying. At common law, this would have been the usual result, on the ground that a child of tender years cannot understand the oath and its potentially eternal consequences.51 Would any court do anything but laugh at the defendant’s due process argument, despite its impeccable historical pedigree? On the other hand, suppose the state excludes reliable defense evidence that would not have been admissible at common law. For example, suppose a state procedural rule has the effect of preventing the defendant herself from 51. See 2 J. Wigmore, Evidence § 508 (James Chadbourn ed. 1979) (citing Hale and describing common-law rebuttable presumption of incompetence below ages fourteen and seven). DRIPPSMACRO 8/11/99 4:16 PM 656 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] testifying. At common law, the defendant could not be sworn as a witness (again on the theory that this made damnation too likely).52 Could the state justify its rule on the basis of common-law history? Suppose a state barred coconspirators from testifying on one another’s behalf.53 Or prohibited a defendant from cross-examining a witness who gave testimony favorable to the state after being called by the defense?54 All of these cases actually reached the Supreme Court, and in each the Court struck down the state rules, history notwithstanding.55 In other words, once the “fundamental fairness” language gets put in perspective, and once the historical analysis is understood as pretty much beside the point, Medina holds that the bottom-line inquiry in a criminal- side procedural due process case is instrumental. A great many other cases implicitly follow this instrumental approach. Procedural due process cases recognize, under appropriate circumstances, constitutional rights to a change of venue to avoid local prejudice;56 to the disclosure of exculpatory evidence during the discovery process;57 to rules of evidence that exclude unreliable prosecution evidence58 and that admit reliable exculpatory evidence;59 to public funds to pay for expert witnesses for indigent 52. See id. § 575. 53. At common-law joint defendants were barred from testifying as parties, although they could give evidence if charged separately. See id. at 832. 54. For the common-law pedigree of the so-called voucher rule, see IIIA Wigmore, Evidence ‘ 896 (James Chadbourn ed. 1970). 55. See Washington v. Texas, 388 U.S. 14 (1967) (striking down bar on co- conspirator testimony under sixth amendment compulsory process clause); Chambers v. Mississippi, 410 U.S. 284 (1973) (striking down voucher rule on due process grounds); Rock v. Arkansas, 483 U.S. 44 (1987) (striking down on compulsory process grounds ban on testimony by accused who had been subjected to hypnosis prior to trial). 56. Rideau v. Louisiana, 373 U.S. 723 (1963). 57. United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland, 373 U.S. 83 (1963). 58. Foster v. United States, 394 U.S. 440 (1969) (suggestive lineup excluded on due process grounds). 59. Crane v. Kentucky, 476 U.S. 683 (1986) (due process and compulsory process analysis); Chambers v. Mississippi, 410 U.S. 284 (1973). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 657 defendants,60 against knowing use of perjured testimony by the prosecution;61 to appear at trial in civilian clothes, not prison issue;62 to limiting closing argument by the prosecutor;63 and to the reasonable doubt standard of proof respecting elements of the charged offense.64 In each instance, the Court’s inquiry has been instrumental; in each case, history has not been dispositive; and in each case, the state practices held inconsistent with due process do not shock the conscience. Implicit in these due process cases is the appropriate standard for judging due process challenges to adjudicatory procedures, which is whether the challenged practice creates a significant and avoidable risk of unjust conviction. This standard resembles the Mathews standard, but it takes account of the distinctively weighty individual interest against erroneous “termination” of one’s liberty from criminal conviction. In these criminal-procedure due process cases the Court does not follow the Betts v. Brady65 case-by-case approach. Instead, modern due process cases establish principles that apply in categorical terms to future cases. For example, under Brady v. Maryland the government must turn over relevant, exculpatory evidence on request, in every case. Under Winship, the government must prove the elements of the charge beyond reasonable doubt in every case. Sometimes doctrine is stated in such fact- specific terms that the standard requires case-by-case adjudication, as with questions about changes of venue to counter pretrial publicity. In the main, however, the Court has applied the painfully-learned lessons about regulating police investigation to the regulation of trial procedure. Due process, no less than the Fourth or Fifth Amendments, 60. Ake v. Oklahoma, 470 U.S. 68 (1985). 61. Napue v. Illinois, 360 U.S. 264 (1959); Mooney v. Holohan, 294 U.S. 103 (1935). 62. See Estelle v. Williams, 425 U.S. 501, 505 (1976) (holding that defendant had waived right to appear in street clothes). 63. Miller v. Pate, 386 U.S. 1 (1967). 64. In re Winship, 397 U.S. 358 (1970). 65. 316 U.S. 455 (1942). DRIPPSMACRO 8/11/99 4:16 PM 658 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] can be translated into generally applicable rules. B. Eyewitness Identification Evidence: Diagnosis and Prescription Applied Erroneous identification evidence remains the single leading cause of false convictions. The Warren Court grappled with the problem in the 1960’s, but relied primarily on the Sixth Amendment right to counsel rather than on due process.66 The resulting disappointment offers a good example of how selective incorporation analysis ill serves the innocent. In the first place, the right to counsel approach does not focus on the underlying problems with the reliability of the evidence. Giving the suspect a lawyer before a lineup does . . . . what? The lawyer can testify as a witness about suggestiveness later on, but any accurate recording of the session could achieve that much.67 The Fifth Amendment privilege gives the suspect the right not to answer police questions, so lawyers can advise clients not to talk during interrogation. By contrast, the suspect has no Fifth Amendment right not to appear before the witness,68 and so the lawyer cannot stop the proceeding. The Wade opinion never indicated that the police conducting the lineup must in any way accommodate the objections or suggestions made by defense counsel. Second, the Court’s focus on the Bill of Rights soon undermined even the modest protection supplied by the Wade rule. Given the Fifth Amendment privilege, suspects can be questioned only before the right to counsel attaches. Therefore it was imperative that the right to counsel attach late enough in the process for the police to get a crack at the suspect under the Miranda rules. Fairly supported by the language of the Sixth Amendment, the Court held that the “prosecution” does not commence until formal charges 66. See United States v. Wade, 38 U.S. 218 (1967). 67. See id. at 254 (White, J., dissenting). 68. See id. at 221-23. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 659 are filed.69 Thus by delaying accusation until after the lineup, the police can entirely circumvent the Wade rule. Still later, the Court held that even after accusation the right to counsel does not apply to showing a photo array to an eyewitness.70 This obviously does not look like a court hearing; the defendant is not present, the prosecutor is not present, there is no element of confrontation between the defendant and the state. Responding to appearances, the Court held that the photo array is not a “critical stage” of the proceedings, like a preliminary hearing or a corporeal identification proceeding. There remains a vestigial due process test, in which the defense can move to exclude a pretrial identification obtained under needlessly suggestive circumstances so strong as to make erroneous identification highly probable.71 This determination is made on a case-by-case basis, with no guidance to police for future cases. If the motion succeeds, the eyewitness may still be allowed to identify the accused at the trial itself, on the theory that the in-court identification—rendered under the most suggestive circumstances imaginable—is independent of the prior suggested identification.72 Here we have, in one area of doctrine, the worst of both selective incorporation and fundamental fairness. The doctrinal failure is not solely an abstract concern of Constitution-toting academics. It sends, as the DNA cases painfully demonstrate, innocent people to prison. It will, in due course, send an innocent person to execution. What can be done about it? To a degree the limitations on identification testimony are irreducible; perception and memory just are not very good,73 especially under stress.74 69. Kirby v. Illinois, 406 U.S. 682 (1972). 70. United States v. Ash, 413 U.S. 300 (1973). 71. Stovall v. Denno, 388 U.S. 293, 301-02 (1967); Neil v. Biggers, 409 U.S. 188 (1972); Manson v. Braithwaite, 432 U.S. 98 (1977). 72. See, e.g., Wayne LaFave & Jerold Israel, Criminal Procedure ‘ 7.4(f) (2d ed. 1992). 73. See, e.g., Elizabeth Loftus, Eyewitness Testimony (1979). 74. See id. at 33. DRIPPSMACRO 8/11/99 4:16 PM 660 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] The situation, however, is by no means hopeless. In a valuable article,75 Gary Wells and Eric Seelau have attempted to devise practical procedures that would reduce the frequency of erroneous identifications. They defend four basic principles. First, the lineup or photo spread should be administered by someone who does not know which of the subjects is the suspect.76 This is one way, and probably the only way, to terminate the risk of suggestion. Second, the eyewitness should be told that the lineup or photo array may not include any suspects at all.77 Eyewitnesses do a passable job of identifying the offender when the offender is in the lineup or array. When the offender is not in the sample, eyewitnesses have a strong tendency to select the person who most resembles the offender. Instructing the witness that a sample may not have a suspect in it reduces this tendency. Third, Wells and Seelau suggest that the lineup or array include foils who resemble, not the suspect, but the description of the offender given by the witnesses.78 Putting the suspect’s twin in the lineup would halve the probability of a correct identification from a perfectly reliable eyewitness. The objective should be to include foils who resemble the offender. Thus relative judgment errors should tend to exculpate, rather than inculpate, the innocent, without arbitrarily reducing the likelihood that a guilty suspect will be identified. Finally, Wells and Seelau recommend obtaining a statement of confidence from the witness at the time of the identification, so that confidence at trial is not misinterpreted as confidence at the time of the identification.79 If my analysis of procedural due process in criminal cases is plausible, courts could convert proposals such as 75. Gary L. Well & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol. Pub. Pol’y & L. 765 (1995). 76. Id. at 775-778. 77. Id. at 778-779. 78. Id. at 779-780. 79. Id. at 780-781. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 661 those of Wells and Seelau into Miranda-like rules of constitutional law. These rules would have Miranda’s great virtue of clarity. To the extent the police know what procedures are required, exclusion for violations would be both rare and appropriate. The obvious corollary to such a regime would be a due- process based ban on any in-court identification evidence. Evidence rendered under such suggestive circumstances is unreliable, and a non-suggestive neutral lineup or photo array easily can be arranged outside the courtroom. Jurors should be told the reason that they will not hear an in- court identification, so that they do not entertain unreasonable doubts about the prosecution’s case. Putting these elements together, due process should be held to require the exclusion of all in-court identification evidence, and to permit proof at trial of identification when: DRIPPSMACRO 8/11/99 4:16 PM 662 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] (I) The imminent death or incapacity of the witness made an immediate identification process necessary, and the identification procedure was conducted as fairly as the circumstances permitted; or (II) The defendant was not in custody, and the eyewitness made the identification after being shown either (1) An open-ended series of photographs (i.e. mugbooks), when the eyewitness is told that the offender may not be included in any of the photographs, and the eyewitness is asked for a confidence statement after any identification of a suspect; or (2) A photo array that 1. Was accurately recorded, by videotape or otherwise; 2. Included photographs of at least five persons other than the defendant; 3. Included only photographs that bear a reasonable resemblance to the description of the offender given by the eyewitness; 4. Was administered at a time when the police had no suspects, or by persons who were ignorant of the identity of any DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 663 suspects; 5. Was conducted after the eyewitness was instructed that the witness may be shown multiple arrays, and that the offender might not be in any of them; 6. In fact involved the presentation of at least two photo arrays; 7. Included a confidence statement by the eyewitness after any identification; or (III) The identification was made after a suspect is in custody, at a lineup or photo array, and: 1. An accurate record of the proceedings was made, by videotape or otherwise; 2. The proceeding was administered by persons who were ignorant of the suspect’s identity; 3. The eyewitness was instructed that the witness may be shown multiple lineups or arrays, and that the suspect may not be in any of them; and 4. At least two lineups or arrays are in fact shown to each eyewitness. DRIPPSMACRO 8/11/99 4:16 PM 664 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] 5. That the suspect, after consulting with counsel, have the right to be placed in either the first or second lineup or array shown to the eyewitness. 6. Each lineup or array shown to the eyewitness consists of at least five persons (including the suspect if the suspect is included in that array or lineup); 7. The suspect is given the opportunity, through counsel, to strike one of the foils suggested by the government; and to suggest four foils, one of whom must be accepted by the government. 8. If the eyewitness identifies the suspect as the offender, the eyewitness must be asked to state his or her degree of confidence in the accuracy of the identification. In emergencies, of course, it makes sense to take advantage of what may be the last chance to obtain evidence from an eyewitness. When no suspect is in custody, it is impossible to involve the suspect or counsel for the suspect in the process. On the other hand, when no suspect is in custody the police frequently have no suspect in mind, so that the risk of suggestion is diminished. Nonetheless, safeguards of the sort proposed could reduce the risk of misidentification considerably. Once the suspect is in custody, there seems to be no valid ground to refuse the defense some due process rights that might be exercised through counsel at identification proceedings. The participation of counsel here costs the government nothing except a slight delay. Given actual due process rights against suggestive procedures, defense DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 665 counsel has an important role to play during the identification session. The due process rights that call for elections by the suspect after consulting with counsel are whether to appear in the first or the second group; whether to strike a government-supplied foil, and, if so, which one; and whether to put forth a group of foils for the defense, and if so, what foils. If the defense does not supply three foils the government need not accept any of them. The process of striking and supplying foils is designed to make sure that the panel includes foils who resemble the offender. While that might be done by post hoc review under a reasonableness standard, it seems far more desirable to design procedures that can be satisfied in every case, and that, when satisfied, conclusively establish the fairness of the proceedings. Since counsel here is required by due process, Kirby v. Illinois80 is no barrier to the proposed regime.81 Note also that the regime contemplates no subsequent inquiry into reliability; if the government complies with the specified procedures, the identification will be admissible, and not otherwise. Further questions of reliability would be for the jury. Only when the government invokes the emergency exception, or proceeds with an array when the suspect is not in custody, would it run the risk of exclusion under a general standard rather than a specific rule. If the involvement of counsel is thought too burdensome, then it 80. 406 U.S. 682 (1972). 81. See Morrissey v. Brewer, 408 U.S. 471 (1972) (due process right to counsel at parole revocation hearings); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se due process right to counsel at parole hearings, but indicating that due process might require appointed counsel in exceptional cases). In Lassiter v. Dep’t of Social Services of Durham County, 452 U.S. 18 (1981), the Court, dividing 5 to 4, rejected a due process claim for appointed counsel in custody-termination proceedings. Lassiter, however, like Gagnon, left open the possibility that in particular cases the appointment of counsel might be constitutionally-required. See id. at 32-33; Garramone v. Tomo, 94 F.3d 1446 (10th Cir. 1996) (holding that due process required appointment on facts of instant case). Douglas v. California, 372 U.S. 353 (1963) recognized a right to appointed counsel on appeal, based on the equal protection clause. Miranda v. Arizona, 384 U.S. 436 (1966) recognized a right to counsel during police interrogation based on the fifth amendment. There is thus good authority for the proposition that the constitution may require the appointment of counsel even when the sixth amendment does not. DRIPPSMACRO 8/11/99 4:16 PM 666 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] would make sense to treat post-arrest identification proceedings under the same rules suggested for pre-arrest photo arrays under heading (II)(2). The costs and burdens of the approach might give some pause. Such skeptics should reconsider the seriousness of their commitment to avoiding erroneous convictions. Moreover, because the available evidence seems to show that eyewitnesses do no worse with photographs than with corporeal lineups,82 we might well move toward substituting scrupulously fair photo arrays in favor of suggestive lineups. Administratively, one obvious possibility would be to have the crime lab administer identifications; but the critical point is not that the identification be identified by persons with any particular competence, only that the composition of the panel, and the eyewitness making the decision, be as free as possible from the influence of anyone who knows who the suspect is. Security is not an issue—at least until a photograph grabs an officer’s gun and escapes. The approach defended here recognizes that a fair trial can do little to remedy an unfair investigation. As Lloyd Weinreb pointed out twenty years ago, once the police have gained physical control of the situation, there is little justification for leaving further factual investigation wholly in their hands.83 The constitutional text confines selective incorporation scrutiny to the trial. Only a turn to due process can protect the innocent against slipshod or rigged investigations. To succeed, that turn must think about due process not in terms of fundamental fairness in isolated cases, but as rules of procedure that the police can follow in every case. Cases such as Miranda84 and Belton85 prove that constitutional rules are possible. The identification cases make a compelling case for formulating new 82. See B.L. Cutler et al., Conceptual, Practical, and Empirical Issues Associated with Eyewitness Identification Test Media, in Adult Eyewitness Testimony: Current Trends and Developments 163 (D.F. Ross et al. eds. 1994). 83. Lloyd Weinreb, Denial of Justice (1977). 84. Miranda v. Arizona, 384 U.S. 436 (1966). 85. New York v. Belton, 453 U.S. 454 (1981). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 667 constitutional rules based on due process, rather than the Bill of Rights. III. THE CONSTITUTION PERMITS REFORMS THAT COULD REDUCE THE FREQUENCY OF UNJUST DISMISSALS OR ACQUITTALS The contemporary constitutional law of criminal investigations, crafted by the Burger and Rehnquist Courts, may fairly be characterized as one long reaction against the Warren Court landmarks. Ironically, however, because Mapp, Massiah, and Miranda never did all that much to impede good policework,86 trimming back the Fourth and Fifth Amendment rights, and the exclusionary remedy available to defendants has not really done much to promote law enforcement. The major obstacle legal doctrine poses to convicting more of the guilty is the hearsay rule coupled with the Confrontation Clause. On this front, however, the Supreme Court did most of what needs to be done on behalf of law enforcement almost thirty years ago. In California v. Green,87 the Court, Justice Brennan alone dissenting, recognized two important limits on the scope of the Confrontation Clause. First, if the declarant does testify at the trial, the Constitution permits the use at trial of any prior statement by the witness as substantive evidence so long as the declarant is subject to cross- examination about the pretrial statement at the trial.88 Second, preliminary hearing testimony that was subject to cross-examination by the defendant at the time it was given may be admitted so long as the declarant either testifies at the trial or is unavailable to testify at trial.89 Many years later the Court held, in United States v. Owens,90 that a witness is subject to cross-examination for 86. See supra note 28. 87. 399 U.S. 149 (1970). 88. Id. at 153-164. 89. Id. at 165. 90. 484 U.S. 554 (1988). DRIPPSMACRO 8/11/99 4:16 PM 668 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] Confrontation Clause purposes even if the witness has little recollection of the statement or of the crime. All that is required is that the witness answer the questions on cross, without taking a contempt sanction or claiming a privilege. The declarant is subject to cross even if the answers to the questions are “I don’t remember” or “you must be confusing me with my evil twin brother.” The criminal justice system has not taken full advantage of the principles recognized in Green. One reason for this lies with the Federal Rules of Evidence. In adopting the rules, Congress rejected a proposal to make prior inconsistent statements by testifying witnesses admissible as substantive evidence.91 Congress instead opted for a requirement that the prior statements be given before a grand jury or in some other formal “proceeding.” While only a few states permit no substantive use of prior inconsistent statements,92 by no means all permit substantive use of all prior inconsistent statements of testifying witnesses. Many follow the federal rule, and others impose somewhat different limits on those prior statements that may be admitted as substantive evidence.93 Often enough a witness called by the prosecution at trial flips and swears to some implausible exculpatory account. An inculpatory statement made to a police officer that does not qualify as an excited utterance will then be admissible only to impeach. If the government does not have enough other evidence to take the case to the jury, the case will be lost on a motion for a directed verdict. More commonly, a witness will fail to cooperate by telling the prosecutors that she will not testify. Few jurisdictions have been willing to use the contempt power to force reluctant witnesses to the stand, and even then the witness may, from fear or loyalty, take a contempt sanction 91. For the text and history of FRE 801(D)(1), see, for example, Christopher Mueller & Laird Kirkpatrick, 1998 Federal Rules of Evidence 178-90 (1998). 92. Jack B. Weinstein et al, Evidence: Cases and Materials 529 (9th ed. 1997) (only 3 states forbid all substantive uses of prior statements). 93. See id.; Stanley Goldman, Guilt by Intuition: The Insufficiency of Prior Inconsistent Statements to Convict, 65 N.C. L. Rev. 1, 45-48 (1986). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 669 rather than testify. Also common is the situation in which the witness indicates a willingness to testify before trial, but then fails to show up on the appointed date. In these cases the first prong of Green offers an important opportunity. Suppose that the defense had an opportunity to cross-examine witnesses on the record in the immediate aftermath of the crime. If a videotaped deposition could be taken immediately, witnesses might give statements in the heat of the event, before their integrity is tempted by fear, greed, or loyalty. Under the Federal Rules of Evidence, such a deposition is a perfect insurance policy. If the declarant testifies consistently with the deposition, there is no need for the deposition. If the declarant refuses to testify or is unavailable, the deposition comes in as former testimony. And if the declarant testifies inconsistently with the deposition, the deposition comes in under FRE 801(d)(1)(b). Of course we do not take depositions in the criminal practice. Illustrative is Rule 15 of the Federal Rules of Criminal Procedure, which authorizes depositions only in “exceptional circumstances.”94 The rule contemplates that parties may depose only their own witnesses, and the courts have construed “exceptional circumstances” narrowly. Depositions may be taken only to preserve testimony, not for discovery.95 The courts view defense depositions as tactical gambits for unauthorized discovery,96 and government depositions as reducing the incentives to present live testimony.97 There is another unstated barrier to early depositions in criminal cases. To be admissible under Green, deposition testimony needs to be subject to cross- examination by counsel98 (unless the accused waived 94. Fed. R. Crim. Pro. 15(a). 95. See Charles Alan Wright, Federal Practice and Procedure—Criminal 2d § 241(1982 & 1998 pocket part). 96. United States v. Kelley, 36 F.3d 1118, 1124-25 (D.C. Cir. 1994); United States v. Cutler, 806 F.2d 933, 935-36 (9th Cir. 1986). 97. United States v. Mann, 590 F.2d 361, 367 (1st Cir. 1978). 98. Pointer v. Texas, 380 U.S. 400 (1965). DRIPPSMACRO 8/11/99 4:16 PM 670 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] counsel), and the defense needs to know the charges before conducting an effective cross. The defendant, shielded by the Fifth Amendment privilege, is deemed ineligible for the rudimentary discovery allowed to civil litigants. And because police interrogation cannot succeed in the presence of defense counsel advising the suspect to invoke the privilege, the idea of providing counsel at the moment of arrest is unthinkable. Thus the gap between the investigation and the judicial process has never been closed as Green would permit. In short, the fear that extending the right to counsel to the moment of arrest would abolish police interrogation has prevented taking usable evidence from the witnesses until long after the crime. It does not have to be that way, especially in this era of sophisticated technology. Imagine that police, summoned to the scene of an armed robbery of a convenience store, arrest a suspect a few blocks from the store based on a general description from the clerk and the customers. Present practice is for the police to escort the suspect back to the store, where the witnesses will identify the suspect under the most suggestive possible conditions. The police will then administer Miranda warnings and drive the suspect to the station for booking and a bindover hearing in court. The descriptions given by the witnesses to the police will not be admissible at any later trial, and the identifications will be admissible only if the witnesses testify. Meanwhile defense counsel will not enter the picture until the bindover hearing at the earliest, and in many cases not until a subsequent arraignment. During this window the suspect might confess, but it is at least as likely that the witnesses will be reached or lose interest. Now suppose that a different approach were taken, an approach that aims at taking statements usable in evidence at the earliest possible moment. At the scene, the police might videotape statements from the eyewitnesses, giving descriptions of the offender and any details of the offense. These recorded statements may be admissible as excited utterances, and they might also prove useful for DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 671 impeachment or for refreshing recollection at trial. Moreover, Green leaves legislatures free to authorize the receipt of such prior inconsistent statements as substantive evidence. Suppose further that as soon as charges are filed and counsel is retained or assigned for the defense that videotaped depositions of the witnesses are taken. This could be done immediately after arraignment,99 days, rather than months, after the crime. Once those depositions are in hand, reaching the witnesses later will not help the defendant. If the witness becomes unavailable, the deposition testimony will be admissible under the former testimony exception. If the witness testifies inconsistently with the deposition testimony, the deposition testimony will be received not just to impeach, but as substantive evidence as well. If the witness testifies consistently with the deposition testimony, the deposition testimony is unnecessary. No matter what the witness does at trial, the inculpatory story will be told. If that were the case, the percentage in witness intimidation would decline once the depositions were given. Bribery or witness intimidation would not help the defendant, but it could land the perpetrators in the penitentiary. Organized gangs may still perceive an incentive to retaliate against witnesses to intimidate other witnesses in the future. Even in this situation, however, knowledge that the pending charge cannot now be defeated will reduce, albeit not eliminate, the incentives for intimidation and corruption.100 The more rational the gang, 99. Pretrial procedure varies a good deal among jurisdictions. By “arraignment,” I mean the first occasion at which the accused enters a plea to the charge after it is read in court. Since entry of the plea requires that counsel be retained, appointed, or waived, and can occur only after the charge is filed, the prerequisites of admissible pretrial testimony under Green are present at this point. 100. See Graham, supra note 31, at 280 n.1: No one is asserting that preservation of testimony will stop all intimidation of witnesses. Live testimony accusing the defendant of a crime will be more persuasive to a jury than hearing a prior statement of the witness read by the attorney for the government. Moreover, members of organized crime may believe it is advantageous in the long run to make examples of DRIPPSMACRO 8/11/99 4:16 PM 672 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] the more likely its leaders are to realize that fixed costs are zero. Fears of unreciprocated defense discovery are misplaced, at least so long as both sides can depose any witness as of right. Obviously the defendant could not be deposed because of the privilege against self-incrimination, but defense witnesses can be deposed as easily as government witnesses. Guilty defendants typically know the identities of the witnesses against them from first hand knowledge, so that depositions would do little to encourage, and much to forestall, witness intimidation. Discovery as such is a good thing, and there should be powerful reasons indeed to justify unnecessary surprises at trial. Indeed, many prosecutor’s offices maintain an open file policy to convince defense lawyers to accept plea offers, a practice that would not exist if defense discovery had pernicious consequences. As for the fear of trial by deposition, the proper focus for this concern is the hearsay rule, which governs admissibility of deposition testimony, not the rules of procedure, which only determine whether a deposition can be taken. If the unavailability requirement is enforced, the government will still be under pressure to produce the witnesses to testify at the trial. There is, however, a strong argument that video-taped depositions justify a much more casual attitude toward unavailability. Both Green and Ohio v. Roberts101 implied anyone who testifies even after the damage has been done and the defendant convicted. Assuming some murders will occur, the question remains whether the murders that do occur will be significantly fewer than would have occurred without preservation of testimony. Currently, murders do more than reduce impact or set an example—they also eliminate damaging testimony that might put the perpetrator in jail. One trusts that a preservation proceeding will create a distinction that amounts to a significant difference. Videotape of course reduces—and may well eliminate—the gap between the impact on juries of preserved and live testimony. 101. 448 U.S. 56 (1980). I say “implied” because the Court found that the declarant was in fact unavailable; the opinion lays down a since-sometimes- followed test that demands a showing of unavailability of the declarant plus a showing that the hearsay statement is of a reliable sort. Strictly speaking, DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 673 that former testimony from an available declarant who does not testify would violate the Confrontation Clause, but both cases involved a cold transcript, not a videotape. Since Roberts the availability requirement comes and goes as the cases seem to require.102 Given videotaping, a strong argument can be made to abolish the unavailability requirement in the former testimony exception. In the first, place videotaping enables the jury to observe demeanor.103 Empirical evidence overwhelming indicates that ordinary people cannot detect deception by observing demeanor.104 The preference for live testimony, however, does not depend entirely on the ability of jurors to observe symptoms of deceit. Live testimony may improve attentiveness and retention. Empirical evidence seems to show that videotaped testimony is at least as good as live testimony on this front.105 The enthusiastic reception of videotaped depositions in civil cases is instructive, if not conclusive. In the second place, the opponent of the deposition however, the Court did not hold in Roberts, and hasn’t held anywhere else, that a conviction obtained with a cross-examined statement from an available witness must be reversed. 102. Compare id. (confrontation clause requires production of available declarants) with United States v. Inadi, 475 U.S. 387 (1986) (confrontation clause does not require showing of unavailability of declarants of coconspirator statements) and Idaho v. Wright, 497 U.S. 805 (1990) (applying Roberts unavailability requirement to statements offered under catchall exception) and White v. Illinois, 502 U.S. 346 (1992) (declining to impose Roberts unavailability requirement to excited utterances or statements made for purposes of medical treatment). 103. A point noted by many courts with respect to depositions in civil cases. See Michael Henke & Craig Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n.57 (1998). 104. See Jeremy A. Blumenthal, A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb. L. Rev. 1157 (1993); Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075 (1991). 105. See Albert W. Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System, 50 U. Chi. L. Rev. 931, 1023- 1024 (1983); Gerald Miller et al., The Effects of Videotape Testimony in Jury Trials: Studies on Juror Decision Making, Information Retention, and Emotional Arousal, 1975 BYU L. Rev. 331 (1975); Daine M. Hartmus, Videotrials, 23 Ohio N.U. L. Rev. 1, 6-11 (1996). DRIPPSMACRO 8/11/99 4:16 PM 674 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] testimony can subpoena the readily available witness.106 Indeed in criminal cases it would be unconstitutional to deny the subpoena power to the defense. If live testimony is critical to the defense, and the declarant is readily available, nothing prevents the defense from taking advantage of the Compulsory Process Clause. As a general matter the government quite properly bears the burden of producing the witnesses, because the government is in a better practical position to monitor them.107 If, however, prompt videotaped depositions were taken, a strong argument could be made that, for all practical purposes, the government had produced the witnesses. True, live testimony would add somewhat to the reliability of the inquiry, but the addition would be far less than what live testimony adds over a cold transcript. A defendant who insists on that marginal difference might well be asked to bear the burden of summoning the witness. Under current law, trial judges frequently bend over backwards to admit hearsay statements that were not recorded, were not sworn, and were not cross-examined when witnesses refuse to testify or give incredible stories on the stand.108 If depositions were routinely taken in criminal cases immediately after arraignment, and if those 106. The Supreme Court has placed some importance on this point. See United States v. Inadi, 475 U.S. 387, 396-398 (1986); Dutton v. Evans, 400 U.S. 74, 88 n.19 (1970) (plurality opinion). 107. If a witness is not produced by the prosecution on its own initiative under the confrontation clause, the defendant can always produce the witness at his own request under the compulsory process clause. The question under the confrontation clause is therefore not whether the witness should be produced at all, but whether the witness is better produced on the prosecution’s initiative or at the defendant’s request. Peter Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 622 (1978). 108. For example, in Williamson v. United States, 512 U.S. 594 (1994), the trial judge admitted a statement to police from an intimidated witness, in which the declarant, who had himself been caught with a large quantity of illegal drugs, described the defendant as the mastermind behind the offense. The Supreme Court reversed, but the dynamics of the situation cannot be cured by isolated Supreme Court decisions. Trial judges forced to choose between hearsay and silence will be inclined to opt for the hearsay. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 675 depositions were routinely admissible at trial even without a showing of unavailability, witnesses would know that they could perform their civic duty promptly, need only do so once, and that they would reduce their exposure to illegal pressures by doing so. In some cases, this would mean that videotaped cross-examined testimony would substitute for live cross-examined testimony. In many other cases, it would mean that videotaped cross-examined testimony would substitute for police testimony about “excited utterances,” or for grand jury transcripts now admitted under rule 801(d)(1), or under the catch-all exception, or for no evidence whatsoever. The right to physically confront adverse witnesses, recognized in Coy v. Iowa109 and Maryland v. Craig,110 does not stand in the way of videotaped depositions in criminal cases. To begin with, all hearsay from nontestifying declarants comes into evidence without physical confrontation. Compared to an excited utterance or a coconspirator statement, cross-examined testimony on videotape is far more probative. Justice Scalia’s concern with physical confrontation is grounded on the fear that lying comes more easily in the absence of the person falsely accused.111 Assuming this to be true, it is still the case that cross-examination is a far stronger check on deception than physical confrontation. Statements cross-examined by the defense, with notice of the charge, should not be kept from the jury for want of physical confrontation anymore than business records or dying declarations. Indeed, the circuit courts of appeal have admitted grand jury testimony from unavailable declarants under the catch-all exception when the testimony bears special indicia of reliability.112 If statements given without cross-examination or physical 109. 487 U.S. 1012 (1988). 110. 497 U.S. 836 (1990). 111. See Coy, 487 U.S. at 1017-18; Craig, 497 U.S. at 867-68 (Scalia, J., dissenting). 112. See, e.g., United States v. Carlson, 547 U.S. 1346 (1976); United States v. Doerr, 886 F.2d 944 (7th Cir. 1989); Curro v. United States, 4 F.3d 436 (6th Cir. 1993). DRIPPSMACRO 8/11/99 4:16 PM 676 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] confrontation can be received, it seems fair to argue that cross-examined statements should be received without physical confrontation. Even if a different view were taken of the right to physical confrontation, depositions could be taken at a location proximate to the lock-up so that the defendant could be physically present during pretrial testimony. Bulky police officers with reputations for overzealousness might be assigned for security purposes. Alternatively, it might be possible to take testimony, at least from especially vital witnesses, at the arraignment itself, converting arraignment into a preliminary hearing. The security and administrative burdens might seem out of proportion to the gain for the truth-finding function, but it would be possible to arrange for physical confrontation, as well as cross- examination, of pretrial testimony. In sum, the biggest obstacle to convicting more of the guilty is witness noncooperation, and the best way to attack the noncooperation problem is to take admissible statements from the witnesses as quickly as possible. Professor Graham recognized this opportunity more than a decade ago.113 Professor Graham, however, favored a special preservation proceeding, with the defendant represented by a sort of guardian ad litem, over criminal- side depositions. Depositions, he argued, take too long and require the (often intimidating) presence of the defendant. These concerns, although cogent, do not strike me as insurmountable. Construed as I suggest, the Confrontation Clause permits use of statements cross-examined by defense counsel in the defendant’s absence. If the Clause is construed otherwise, the physical confrontation requirement would apply to any preservation proceeding, whatever its form. That leaves the time factor, but depositions could be taken as soon as charges are filed. A special preservation proceeding could not satisfy constitutional requirements until that time anyway, because meaningful cross- 113. See Graham, supra note 31, at 252-80. DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 677 examination depends on notice of the charge. Professor Graham’s approach would be an improvement on present law (and illustrates how much room the Constitution leave for legislatures interested in addressing the major cause of lost convictions). I tend to think, however, that cross- examination by the defendant’s own lawyer is important enough to justify whatever irreducible delay might separate depositions testimony from the filing of charges. Professor Graham makes a quite important point that deserves to be carried over into any system of early pretrial testimony in criminal cases. He notes that when testimony is taken before defense counsel has an opportunity to investigate the case, cross-examination questions must be asked in ignorance of the probable answer.114 His proposal to permit the defense, but not the government, to introduce pretrial testimony elicited on cross makes excellent sense, and would help to strengthen any system of pretrial testimony against Confrontation Clause attack. The Constitution permits prompt pretrial testimony so long as the defendant gets to cross-examine the witnesses through counsel with knowledge of the charge. Our peculiar interrogation regime depends on keeping lawyers out of the process as long as possible; but the key to overcoming the witness noncooperation problem is to get defense lawyers into the case as early as possible. Even given our present interrogation rules, however, the government could benefit from the option of securing admissible witness accounts in favor of approaching the suspect for a Miranda waiver. If our interrogation rules were changed, however, this election would be unnecessary. If there were some system for questioning the suspect even after the appointment of counsel, the defense would gain discovery, but would be subject to some reciprocal obligations. Nor would there be any loss of evidence from the suspect, except to the extent that police questioning methods are more effective than questioning in court. 114. See id. at 270-71. DRIPPSMACRO 8/11/99 4:16 PM 678 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] Suppose that state legislation or police regulations provided that the right to counsel attaches at the moment of arrest, but that the failure of the suspect to give a deposition after arrest, while represented by counsel, could be considered by the jury.115 Suppose further that this policy made prior convictions inadmissible to impeach deposition testimony given by the criminal defendant.116 Griffin v. California117 might be distinguished on at least two grounds. First, Griffin involved an inference of guilt from the failure to testify at the trial. With live testimony before the jury, excesses by the prosecution on cross and misstatements by the accused cannot be retracted or corrected. By contrast, if the defendant’s deposition involved honest mistakes or prosecutorial browbeating or trickery, these problems could be brought out to the jury at a later trial, or, in appropriate cases, by a motion to exclude or redact the deposition. Second, absent possible impeachment by prior convictions, there is far less reason for the accused to decline to speak. Accordingly, the inference of guilt from silence is much more rational in a system such as I suggest, and Griffin, in the end, rests on an equation between irrational inferences of guilt and constitutionally-forbidden “compulsion.” Practically speaking, wholly reliable evidence, like a well-conducted DNA test or a surveillance film of the defendant committing the crime, “compels” the defendant to take the stand and testify to duress, insanity, consent or what not. Such rational inferences are quite properly not deemed compulsion, and a counseled suspect’s refusal to make a statement immune to impeachment with prior convictions really does support a rational inference of guilt. In this system, defense lawyers would be welcomed by 115. Similar proposals have been around a long time. See Donald Dripps, Foreword: Against Police Interrogation—and the Privilege Against Self- Incrimination, 78 J. Crim. L. & Criminology 699, 730 n.120 (1988) (citing proposals of Pound, Kauper, Frankel and Schaefer). 116. Again, this is not a novel idea. See, e.g., Van Kessel, supra note 3, at 540. 117. 380 U.S. 609 (1965). DRIPPSMACRO 8/11/99 4:16 PM 1999] MISCARRIAGES OF JUSTICE 679 the prosecution, for defense counsel enables the taking of depositions from both the witnesses and the accused. Presently, weeks separate the preliminary hearing from the crime. Given present interrogation law, depositions could be taken after arraignment, within days of the crime. But if counsel could be appointed for the accused at the time of arrest, prosecutors could issue an information and take cross-examined statements from the witnesses within hours of the crime. Even as presently construed in Green and Roberts, the Constitution leaves room for legislatures and courts to authorize prompt post-arraignment depositions in criminal cases. This would enable a promising attack on the single biggest cause of unjust dismissals. Relaxing the unavailability requirement for videotaped testimony under the Confrontation Clause would enable a more effective response, and authorizing questioning of the suspect after the right to counsel attaches would permit even quicker, and so more effective, questioning of the witnesses. CONCLUSION The conventional wisdom is almost completely wrong. With the important if qualified exception of Gideon v. Wainwright, the criminal procedure revolution has done little to protect innocent people from unjust conviction, although it has done a great deal to protect innocent people from arbitrary searches and oppressive questioning. Modern studies agree with Borchard, Radin, and the Franks about the causes of unjust convictions. The disturbing evidence of DNA exonerations during investigations should give some urgency to the obvious need for constitutional doctrine to do more to protect the innocent. The most plausible doctrinal approach relies on due process, not on the Bill of Rights. As for convicting the guilty, the critics of Miranda may be right, in the wrong way, when they point to Miranda as a loophole for the guilty. Miranda means that interrogation depends on excluding defense counsel from DRIPPSMACRO 8/11/99 4:16 PM 680 BUFFALO CRIMINAL LAW REVIEW [Vol. 2:637] the critical investigative phase of the case. Participation of defense counsel, however, is necessary to both any effective system of depositions in criminal cases and to any system of in-court questioning of the accused. The inability to take depositions opens the door for defendants to intimidate witnesses and for witnesses to protect defendants or give up on the process. Of course, any system of interrogation that depends on excluding counsel would have the same effect, so Miranda’s critics—who liked Escobedo even less than Miranda—have no real cause to complain. The Confrontation Clause does not doom us to current case attrition figures. Even in an interrogation regime dominated by Miranda, prompt depositions in criminal cases make sense. We should not forget, however, that Miranda itself invited experiments with other forms of regulated interrogation. Generalizations in criminal justice are always hazardous, but this one might be ventured with some confidence: We need to make the investigation less inquisitorial and more adversarial, and we need to make the trial process less adversarial and more inquisitorial. Each of the proposals defended here— due-process rules to govern identification proceedings, prompt depositions in criminal cases, and permitting an inference of guilt from a defendant’s refusal to give deposition testimony—are all plausible steps toward such a convergence.
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