The Jurisprudential and Political Foundation of Criminal Procedure

Ronald J. Allen*

I am honored and pleased to be asked to address this International Seminar on Pre-Trial Procedure Reforms in Criminal Justice. I would like to thank the President of the China University of Political Science and Law, Xianming Xu, Vice President Guilin Zhang, and the Director of the Procedural Law Research Center, Chongyi Fan, for inviting me. I suspect that my Chinese students played some role in my being invited, and I am very pleased to acknowledge them publicly: Jianhua Xiao and Jinxi Wang of the faculty of the China University of Political Science and Law, and Baosheng Zhang, who teaches part-time in Renmin University School of Law and is also the Director of the Division of Scientific Research Management, in the Department of Social Science of the Ministry of Education. Each of these individuals has spent time at Northwestern University with me studying various aspects of American law, in particular procedure and evidence law. I speak for everybody at Northwestern University when I say that we are very glad to have had these individuals among us, are very proud of their accomplishments, and hope that they and other professors from China will continue to study with us at Norhtwestern University. I am especially proud of them, and grateful for their efforts in translating my book on Evidence into Chinese. Given the subject matter of this conference, perhaps our next project should be to translate my book on Criminal Procedure.

I am also pleased to be here to continue to build bridges between the people of China, the United States, and the other countries represented here today. The twenty-first century will be characterized by ever increasing cooperation and interaction between China and the West. These two great civilizations will together determine much of the course of the next hundred years. Already China=s economy is on target to match that of both the European Union and the United States by the middle of the century. Your universities are emerging world-class centers of teaching and learning. More and more innovation comes from Chinese inventors and entrepreneurs. If I may speak only for my own country for a moment, we in the United States are impressed by these developments, and welcome them, even though they constitute a challenge to us. We welcome them because we firmly believe that competition within the rule of law will make both you and us better, and lead to advances that will benefit all mankind. Most importantly, it will be critical for you, for us, for mankind, for these two great civilizations to work together cooperatively, to lay the foundation for an international rule of law that will bring to the world the benefits the rule of law has brought to you and to us. For that to happen, the ties between our us must be broadened and deepened, and Seminars such as this one are an important means for doing so. So I salute all of you who planned this event.

I just mentioned Athe rule of law.We believe that the rule of law has been critical to the development of the United States. The conventional view of law as constraining choice is false; law liberates choice by making the legitimate limits of action clear, thus allowing people to work together cooperatively within the limits of the law. This in turn liberates individuals to unleash their creative abilities in productive ways, and the protection provided by the rule of law to the right to consume, use, or dispose of what is produced provides a good deal of the incentive to produce it in the first place. I am only now beginning my studies of Chinese law, and so I do not purport to be an expert on the issues that you face. Nonetheless, it is my understanding that you, too, place great emphasis on the importance of the rule of law, feel the need for some change perhaps, and are now rethinking certain aspects of your legal institutions in an effort to further the great strides your country has made. That, I assume, explains the subject matter of this Seminar, which emphasizes reforms of the criminal process. There is no question that the rule of law is critical to the criminal process; indeed, it should be its defining characteristic. Equally clear is that there is no point to Areforming the criminal process except to further, deepen, and strengthen the rule of law. A criminal process needs Areform precisely to the degree that it is not based on rule of law but instead on the whim or caprice of individuals.

I am not here, however, to instruct you as to what needs to be reformed, or what reforms you should adopt. I do not yet know enough about your legal system or your needs to do so. Rather, I wish to discuss something else. I wish to discuss the foundations of the criminal process, and thus more generally the foundations of the rule of law. I want to examine the factors that determine what criminal process should be adopted, how it should be implemented, and so on. And I want to tell you a little bit about the complexity of those factors and their implications for us in the United States. At this seminar, there may be various suggestions for adopting this or that procedure from some other country, and perhaps some of those will be good suggestions, but always you must keep in mind that procedures in other countries are embedded in legal systems and cultures that may differ from your own. The objectives pursued by the people in other countries may differ in some respects (although certainly not all respects) from your own. The histories and cultures of the respective nations will differ, and so on. Thus, in the end, I want both to commend you for pursuing this difficult process of appraising your own institutions but warn you that you must look carefully first at yourselves so that you see clearly and precisely what it is you are doing and why, and second you must scrutinize suggestions from other countries to see their institutions in context. There are many examples of efforts to import parts of one country=s criminal process into another that have failed miserably because of the neglect of the cultural and historical aspects of society, and more importantly because of the differing institutional arrangements and assumptions that meant that an approach to criminal procedure would have one set of implications in one setting but quite a different set of implications in another.1

I would press this point even further. ACriminal procedure cannot be understood simply by looking at the statutes, codes, and in the case of the United States, the decisions of the courts. Such things are an important aspect of what constitutes criminal procedure, to be sure, but they do not occupy the field. If, for example, one looks at the various criminal codes in the United States, nowhere is there a reference to the great discretionary power of the prosecutor in the United States to choose what cases to pursue and what cases not to pursue, what charges to file and what charges to drop, whom to investigate and charge, whom to prosecute to the fullest extent of the law and whom to plea bargain with.2 Similarly, one can closely examine the great constitutional criminal procedure cases that dominate the formalities of the American criminal pre-trial process and never learn that in almost every case state or federal legislatures have the ability to nullify the most far reaching procedural decision through the legislative power to define crime. I could extend this list considerably, all to make the point that to study Acriminal procedure in the United States requires much more than simply consulting the statutes and the cases; it requires engaging with history, culture, politics, economics, and many other variables.

I will give one example. I note from the schedule of this Seminar that there will be numerous sessions devoted to the right to counsel. The right to counsel is of critical importance in the United States. It is specifically protected by the sixth amendment to the Constitution,3 and the Supreme Court of the United States has held that the due process clause of the fourteenth amendment4 incorporates the sixth amendment and applies its provisions to the state governments as well.5 Not only does one have a right to retain counsel of one=s choice in the United States, but an indigent person has the right to have counsel provided by the state at no charge to the defendant.6 This is not just a trial right. Once there have been any formal judicial proceedings, no state actor (anyone who works for the government) may elicit information from a suspect without obtaining a knowing and intelligent waiver of the suspect=s right to counsel. Even before formal judicial proceedings have begun, a person in custody cannot be interrogated by a state actor unless the suspect is warned that he has a right to remain silent and to have counsel present, and waives those rights. These are the famous Miranda warnings, of course.7

The American approach to the right to counsel, as well as what sometimes is misleadingly referred to as the Aright to silence, have been much discussed across the world, and perhaps these points will be discussed here in the next few days as potential models for the China. That examination should occur, but it is critically important to realize that the American approach to the right to counsel does not just include a discrete Acriminal procedure with an independent existence that can be appraised as though it were a thing apart from other aspects of the system. Quite the contrary, the American approach to the right to counsel is derivative of a more general approach to government, and to the relationship between government and citizens.

The American conception of the purpose of government is that government exists to create and sustain the conditions under which individuals can flourish according to their own moral dictates. Governments exist to serve the people, rather than the people to serve the government. This, of course, is the essence of what is referred to as Aliberal democracy, the basic contours of which emerged from the European Enlightenment philosophers.8 The American experience added to this a systematic and widespread distrust of centralized government. Government, in the formative period of American history, was not viewed just as the solution to the problems society faced; it was viewed as part of the problem, and had to be cabined, limited, constrained in many, many different ways.9 This is reflected not only in the separation of powers in the three branches of government (the legislature, executive and judicial branches), which we imported from our European forbears;10 we added to it judicial supremacy vested in judges with life time tenure that gives the final say over the meaning of Constitutional provisions and statutory interpretation to the judges. This, of course, is the famous Aright of judicial review possessed by our courts. 11

Not content with the structural inhibitions to the exercise of governmental authority formally created in the Constitution through the separation of powers, our founding generation insisted on a series of individual rights against the government, found in the specific provisions of the Bill of Rights (the first ten amendments to the Constitution), and general admonitions that citizens have the right to Adue process of law and the Aequal protection of the law.12 Collectively these provisions do many things; of particular importance for this Seminar, they make it difficult to obtain convictions. An individual has a right to a grand jury indictment returned by a group of non-government employees selected from the population at large (although some states do not use grand juries)13, a different jury of laymen must find guilt beyond reasonable doubt 14, the individual has a right not to be compelled to incriminate himself 15, the government may not engage in unreasonable searches and seizures16, the defendant has the right to subpoena witnesses in his own behalf and to cross-examine the government=s witnesses 17, and to do so at a public trial held within a relatively short period of time from the date of the formal accusation against the defendant in the state and district where the crime occurred. 18 The right to be free from double jeopardy limits the government, essentially, to a single effort to convict a person for a particular crime.19

The protections of an individual go even further.

Criminal laws must be readily comprehensible, or else they will be struck down by the courts as unconstitutionally vague.20 American law has embraced the common law Arule of lenity.21 This is an interpretive canon to the effect that, if a criminal statute is susceptible of two differing interpretations, the courts will adopt the interpretation most favorable to the individual defendant. Even this does not exhaust the individual protections that surround a criminal defendant.22

These individual rights were not selected randomly over the total of set of rights that can be imagined, however. Rather, they were incorporated into the Constitution because they in turn were the parts that composed a unified view of the relationship between the government and the citizen. That view has as its core that governments must be limited, that the centralizing tendency of all governmental power must be resisted, and that the path to a criminal conviction must be difficult, arduous, and in large measure require the consent of the people (through their role as grand and petit jurors).

The conception of government I am describing has both its virtues and its drawbacks, and I am here today to neither praise nor criticize it; rather, I am here to explain it. It is only with this background that one can understand the discrete provisions dealing with individual rights in the U.S. Constitution, such as the right to counsel. One cannot view a procedural requirement in an isolated fashion and say much coherent about it. One must take it in context, and view it in relationship to the fundamental concept or concepts it is designed to implement or express.

Consider right to counsel one last time. It would make very little sense to import the American conception of the right to counsel into a governmental scheme where government is viewed as the solution rather than the problem (thus inverting the conventional American way of looking at it), or where no one but counsel and his client subscribe to a robust view of individual rights. If the police and prosecutors will not respect the role of counsel, and judges and legislators will not come to its defense, counsel as a practical matter will be hamstrung, no matter what the formalities of the law might appear to say.

Let me generalize this point. When one talks about Areform of the criminal process, the topic is in fact these underlying jurisprudential and political issues. Basic conceptions of the rule of law, the role of governmental institutions, and their relationship to the citizenry are implemented in not derived from such things as are found in the American Bill of Rights.

There are additional variables that need to be considered in fashioning the criminal process that have social, cultural, and political dimensions and implications. For example, in the United States, we often refer to the Aright to privacy. This phrase is ambiguous, however, and refers to at least three different ideas: 1) The right to exclude others, including the government, from one=s private sphere, which is the essence of Aprivacy; 2) The right to make choices about and for oneself and one=s family, such as the much contested right to an abortion in the United States, which is better thought of as Aautonomy; and 3) The right to treated in a certain way by others, including the government, which really refers to a Adignitary interest. Each of these individual interests is in tension with communal interests that are their mirror images. In deciding the scope of the penal law and its enforcement, a society must make choices over these interacting and conflicting interests.

As I said, I am here to explain, and not to praise or criticize. The American experience differs from the Chinese. When we created our governmental institutions, we were even then a moderately wealthy, reasonably well educated society with a vast expanse of land to expand into, a very sparse population, we were far away from any foreign enemy, and the dominant political, social, and religious views emphasized individuality over communitarianism. The choices we made two hundred years ago in fashioning our Constitution suited the conditions of the time very well, but two hundred years later, with a much larger population with densely populated cities, we face new challenges to our old commitments. To these naturally occurring changes in recent years has been added the challenge of terrorism, both domestic and international, that have strained our historical modes of proceeding, and an intense debate is now underway in the United States concerning how to respond to these new challenges.

As I speak to you here today, the people of the United States are debating in various fora whether our models of criminal procedure are outmoded generally or ill-suited to the tasks of combating international terrorism. The President of the United States has asserted extraordinary powers over unlawful combatants and with the statutory authorization of Congress over agencies of foreign powers generally. These assertions of power have been met with resistance in both the courts and even the halls of Congress, and the final outcome of the on going debate is far from clear (although I am fairly confident the President=s exertion of authority will, in the end, by constricted and cabined by law consistent with rather than in opposition to our traditions; some of this will occur through court action, and some through restricting legislation from Congress). We can discuss the contemporary situation in the United States as the Seminar proceeds if anyone likes, but my point here is that the ongoing debate in the United States simply is another example of my main point that criminal procedure is derivative as well as constitutive of deeper and more fundamental conceptions of government.

My first general point, then, is that criminal procedure cannot be viewed in isolation from its surroundings, and that in fact what it is derives from perspectives on profound questions concerning the nature of government, the appropriate relationship between government and the citizen, as well as from views about such deep philosophical questions as the nature of individuality. There is a second reason why one cannot look at a Acriminal procedure in the abstract. Not only are the components parts of a criminal justice system integral to a dynamic process, but also, and just as importantly, things are not always what they appear to be. Throughout my remarks so far, I have used the example of the sixth amendment command of the right to the assistance of counsel, but simply reading the words of the Constitution reveals almost literally nothing about their meaning. In my book, Comprehensive Criminal Procedure,23 my co-authors and I have developed a framework for studying criminal procedure in the United States. To understand the actual operation of the criminal justice system in the United States, one must address, in addition to the formal commands of the Alaw and the deep jurisprudential and political issues briefly commented on above, at least the following four variables:

1. The distinction between the law on the books and the law in action;

2. The intimate interrelationship between procedural law and substantive law, and in particular how procedural law is in fact a hostage of substantive law, rather than the other way around as is conventionally believed;

3. History in general, and in particular race relations and racial discrimination;

4. Economics, or as we say in the United States, AThere is no free lunchBif you use a dollar (or yuan) here for one purpose you cannot use it there for a different purpose.

I will discuss in turn each of these variables and their significance.

1. The law on the books; the law in action. Constitutions are enacted, legislation is passed, executives issue orders and directives, and courts decide, and one would think that the rest of us more or less obey. Unfortunately (or perhaps fortunately), life is not so simple. When constitutions or laws are adopted in any multi-party decision making process (such as a popular vote on a constitution or a vote in a legislature to adopt a law), there will be multiple understandings of what the legal language connotes. Some legislator may vote for the passage of a bill even though they do not believe it goes far enough in its coverage (or even though it goes too far); others may vote against it for just the same reasons. There also may be serious disagreements as to precisely what a particular provision is supposed to mean or do. One person may think the legal language has one implication, and someone else may think it has a different implication In the United States, for example, there was once sharp disagreement about the relationship between the due process clause of the fourteenth amendment and the Bill of Rights, the first ten amendments to the U.S. Constitution.24 Statutory or constitutional language in the abstract often will not resolve the meaning of those phrases.

Compounding the difficulty even further, legal language is often deliberately left vague because of the inability to come to agreement as to precisely what it should say or because of the omnipresent inability to anticipate all possible scenarios in which a particular problem might arise. An example from the United States Constitution is the regal but ambiguous language of the eighth amendment that neither cruel nor unusual punishments may be imposed. That is all very well and good, but what exactly makes a punishment cruel and unusual? How does whatever the phrase may have been meant in 1791 when the language was adopted apply to new developments that were never anticipated? No formulaic answers to such questions can exist.

Even if the language of a legal provision were perfectly clear, legislators do not execute their own laws. Executives do, such as the President and the Governors of the States in our system. Thus, their interpretations can be critical to the implementation of a legal provision. Beyond just the linguistic problem of meaning lies an even deeper problem. The executive may not share precisely the same view of wise policy as held by the legislature, and thus the executive may be more or less enthusiastic about the execution of various laws. Even if the executive knew what each of the laws meant and was quite enthusiastic about its enforcement, virtually no law can be enforced perfectly. There are inadequate resources to do so, and the methods necessary to accomplish the task would often violate other norms. A simple example here is that crime in both our countries continues to be committed notwithstanding vast resources invested in its eradication. Some crimes could not be eradicated without using measures that would be so intrusive into privacy or violative of other rights that the methods would be viewed as worse than the toleration of some level of criminality. In any event, executives must make choices about the meaning of legal provisions, and priorities in and methods of enforcement.

In the United States, judicial decisions constitute yet another layer that adds to the complexity of determining Athe meaning of constitutional and statutory provisions. Although in the U.S. we allocate to courts the authority to determine the meaning of legal language (of course legislatures can always amend the law if the courts misunderstand it, and constitutional amendments can be enacted), all of the difficulties mentioned above still come into play. Even if, for example, judges should interpret legal language in light of the Aintent of the framers,25 that intent will invariably be horribly complicated. I put aside further discussion of judicial constructions of legal language because it involves a diversion into the common law methods of the American system, and the meaning of precedent. These are important issues, but ones that would take too much time for adequate exploration here.26

How the law on the books gets translated into the law in action becomes even more complex as one descends the organizational chain from the highest levels of government down toward the policeman on the street. And here the impact on procedural law becomes even more evident. At an intermediate level, I have already mentioned the great discretion that prosecutors have in deciding what cases to pursue. No legislation could change this because no such legislation would ever carry with it a large enough appropriation of funds to permit all potential criminal acts to be investigated. What is true of the prosecutors is doubly true of the police. In any complex society, crime swirls around us at all times, much of it low level crime to be sure, but crime nonetheless. Walk down the streets of Beijing or Chicago, and you will see untold numbers of crimes being committed from littering to jaywalking to vehicular offenses to theft to assault and battery.27 The police, like the prosecutors, thus have discretion as to what crimes are investigated, whether we or our legal theories like it or not.28 Equally importantly, much of what a policeman does is not really law enforcement at all, but the management of complex situations, such as traffic flow or crowd control and the like.

This discretion has implications for procedural rules. I will give one stark example. Suppose one imposes limits on investigation, such as the right to be free from unreasonable searches and seizures contained in the fourth amendment to the U.S. Constitution. Suppose further that this is to be enforced through exclusionary rules that suppress evidence obtained in violation of the procedural rule, elements which of course can be found in the U.S. law. Now suppose that the police and prosecutors view some social issue, such as prostitution, as a problem to be managed rather than involving crime to be solved. One way to Asolve the problem in the eyes of the local officials may be to make it go away by harassing those involved in it, with no intent to obtain convictions, thus encouraging those involved to Amove on to some other city or part of the country. The harassment might involve real on the street physical threats or violence, it might even involve a series of arrests, and so on. The point is that unless the police or prosecutors care about convictions, exclusionary rules will have no effect on their behavior. The law on the books appears quite regal; the law in action will be quite different.

Herbert L. Packer captured his point in a brilliant article four decades ago where he compared the vision of the American criminal justice system that emerges from the decisions of the Supreme Court to that of the reality on the street.29 From the courts emerges the Adue process model of criminal justice that sees it as an obstacle course in which questions of human dignity are paramount, whereas from the street level emerges the Acrime control model that sees the criminal process as an assembly line where the primary goal is the efficient solution of problems.

Both have elements of truth in them, which of course is my point. When one thinks about American criminal procedure, one must attend to all its complexities.

2. The Relationship Between Substantive Law and Procedural Law. The decisions of the United States Supreme Court extending and enforcing individual rights have been viewed as imposing considerable constraints on the police and prosecutors, yet the legal system has not been greatly disturbed by these rulings.30 One reason, as just discussed, is that procedural barriers to prosecution matter only if anyone really is interested in prosecution. This is an example of the general point that these systems are dynamic and thus can and do respond to changes in various unpredictable ways. It is simply false to think that Areform to a dynamic process can be imposed unproblematically through discrete measures that will have only the desired and no unintended consequences. Quite the contrary, human institutions like the criminal justice process are organic and infinitely adaptable, and in an astounding variety of ways. By far the most important but underappreciated example is that legitimate legislative changes can blunt virtually any procedural innovation that emerges from courts or law reformers.

Here I will use the fourth amendment limit on unreasonable searches and seizures as the example. Suppose the police want to stop cars to do cursory inspections for criminality, but courts rule that the fourth amendment requires that the police have probable cause that a crime has been committed before a car can be stopped. All the legislature need do to make this judicial command a practical nullity is to expand the criminal law to include more rigorous driving requirements. The legislature can essentially make it next to impossible to drive without violating a criminal statute (such as crossing the center line, driving too closely to the car ahead of you, not putting your turning light indicator on early enough or too early, etc.). If the legislature passes such laws, the police will be able to stop virtually any car by following it until the driver violates one of statutes regulating driving. The stop will be on Aprobable cause but the legislation will have expanded dramatically the potential sources of probable cause, thus subjecting everyone to being stopped by the police whenever the police decide to do so, notwithstanding the attempt by the courts to forbid just that process. Similarly, if the government cannot seize certain information without probable cause, it can often instead require that individuals keep records of the information it wants and divulge those records to the government.

The general point is that as the criminal law expands, the actual constraining force of individual rights becomes attenuated, and this is a matter almost exclusively within the control of the political branches of government. This must be taken into account in order to understand how the pre-trial criminal process really works in the United States.

3. History and the Pursuit of Racial Equality. The significance of history to understanding any ongoing system is obvious, and I will not take time here to develop the point beyond noting that to understand what is, one must often understand what was. In addition to the general and obvious point that history determines to some extent present arrangements, much of the law of criminal procedure in the United States has developed as part of the national effort to eliminate the effects of racism. One cannot overemphasize the significance of this point. Much of the work product of the Supreme Court in the decade of the 60's is often pointed to as a stellar example of a court furthering individual rights; in reality, it is an example of a court horrified by the racial discrimination occurring in the criminal justice systems in the southern states, and attempting to do something about it.31

Some scholars trace the beginning of the modern era of criminal procedure in the United States to Powell v. Alabama.32 Powell involved nine indicted black defendants accused of raping two white women on a freight train in Alabama. Eight were found guilty and sentenced to death without benefit of effective assistance of counsel. The Supreme Court, relying heavily on the trial transcript which revealed wholesale confusion about who (if anyone) was representing the defendants, struck down the original death sentences on the ground that, under the facts of the case, their sixth amendment right to the assistance of counsel had been violated. Norris v. Alabama 33 arising from the same incident, held that a systematic exclusion of blacks from a jury could not withstand an equal protection challenge. Many other cases came to the Court bearing the imprint of racial discrimination, for example Moore v. Dempsey34, in which six black men were tried and convicted of murdering a white man during an attack by a white mob at their church. The trial was dominated by an angry mob that threatened anyone (including jurors) that would interfere with a guilty verdict.35 The Court reversed the convictions,36 relying, in part, on Frank v. Magnum that held that due process cannot be satisfied when mob violence threats judge and jury.37 In Brown v. Mississippi, the Court overturned the murder convictions of three black men who were brutalized and coerced into making incriminating statements.38 The thread through all of these early cases was an ill-treated defendant from a minority group.

4. Economics. Businessmen have a saying in the United States that AThere is no such thing as a free lunch. They mean by this that, if another businessman Ainvites you to lunch, he probably wants to talk to you about something or may expect a favor in return. Whatever one thinks about the business world, it is literally true for government that Athere is no such thing as a free lunch. Governments are constrained by their economies, and economies in turn are finite. Of the many valuable things that, in theory, governments could do, they are able to choose to do only some of them. If resources are used for one purpose, there are simply fewer resources left to do other things, and there are in total too many different Athings to do to fund them all.

In thinking about the criminal justice system, the finite limitations of resources is critically important. One lesson of modern times is clear: No society can eradicate crime. There is simply too much crime in ever changing forms. Perhaps the best example of this is that, ironically, as resources are poured into the effort to eradicate crimes, other forms of crime spring up as a result, such as graft and corruption. Moreover, there is a limit to the methods that government can employ to combat crime. The toleration of the citizenry for aggressive investigation of crime may differ over cultures, but again modern history makes it clear that all cultures and societies have their effective limit beyond which government cannot go without sparking resistance and protest from the population.

Consequently, difficult choices need to be made about the allocation of resources across the whole range of governmental interests, including the investigation and prosecution of crime. Crime and its investigation need to be conceived of as parts of a fluid and dynamic process rather than as discrete entities that can be perfectly managed.

I will give a few examples. Investments in the criminal justice process obviously compete with investments in other social goods. If government provides more judges, police, or funds counsel for poor people, less resources will be available for economic development or medical research, or whatever. As I suggested earlier, the police face an aspect of this problem daily. Faced with too much crime to be dealt with, they must constantly decide how to allocate their limited resources. Should the police patrol this part of the city or that part? Should they concentrate on economic crimes, crimes of violence, or fraud? Investments within the criminal justice process likewise compete with other investments in different parts of that same process. If government provides more judges, perhaps it can provide fewer police.

The implications of economics extends further. Consider for one last time the example of the right to counsel. As the ability of counsel for the accused to effect the criminal justice process increases, the more costly each case becomes to try. As the median cost of a case increases, the total number of cases that can be tried decreases. If the active involvement of defense counsel increases the total time a trial takes, obviously there can be fewer trials, as the total time available to try cases is finite.

In addition to the straight forward questions of allocation of resources, there is a second, perhaps more fundamental, economic perspective that is relevant to the structure of the criminal justice system, and that is the micro-economics of errors. A mistake free criminal justice system is not possible. It is critically important to recognize that two types of errors can be madeBa wrongful conviction of an innocent person and a wrongful acquittal of a guilty personBand resource allocation decisions will affect the relationship between these two types of errors.Reasonable people can disagree as to the significance of these two types of errors. In the United States, we structure the criminal justice process to minimize the possibility of wrongful conviction at the admitted expense of making many more mistakes of wrongful acquittals. In the United States, we say that it is better that ten guilty people go free than that one innocent person be convicted. Although the matter is complicated, this perspective explains in large measure the high standard of proof beyond reasonable doubt in criminal cases39 and is another reason why counsel for the accused is viewed as so important in the United States. High standards of proof and legal representation will tend to protect innocent people even though they make convicting guilty people more difficult.40

Viewing the criminal process through the economic lens highlights the difficult trade off between freedom and security that is perhaps the central thread running through my remarks today, and thus is perhaps a fitting place to conclude. Let me just say one last time that my purpose here today has been to neither praise nor criticize my system or yours, but instead to uncover some of the significant variables that must inform thinking about these important issues, whether the concern is reforming your system or understanding ours. I also want to reiterate in closing that, in thinking about the criminal justice processes of both our countries, it is critical to bear in mind that they form organic wholes, and that changes in one part may have unintended effects in other parts. If, for example, counsel and an effective ability to contest the charges are not provided, costs will be reduced of conducting trials, but another form of cost in terms of wrongful convictions will increase, and vice versa. Thus, to think about the type of criminal justice process you want to have, you have to also think about these larger issues that I have identified.

注释：

* John Henry Wigmore Professor, Northwestern University School of Law.

1 A good example is the effort of various European countries to import aspects of adversarial procedure. Germany in the 19th Century (see James W. Diehm, The Introduction of Jury Trials and Adversarial Elements into the Former Soviet Union and Other Inquisitorial Countries, 11 J. TRANSNAT=L L. & POL=Y 1 (2001), and Italy in the 20th (see William T. Pizzi, The Battle to Establish an Adversarial Trial System in Italy, 25 MICH. J. INT=L L. 429 (2004),

2 See, e.g., United States v. Cox, 342 F. 2d 167, cert denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965).

3 U.S. CONST. amend VI. AIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.@ Id.

4 U.S. CONST. amend XIV.

5 Betts v. Brady, 316 U.S. 455 (1942), did not elect to incorporate, but was followed by Duncan v. Louisiana, 391 U.S. 145 (1968), which applied the sixth amendment right to a jury trial to the states. See Randolph N. Jonakait, Supreme Court Review: Notes for a Consistent and Meanginful Sixth Amendment, 82 J. CRIM. L. & CRIMINOLOGY 713, 719-23 (1992). The right to counsel was first suggested by Powell v. Alabama, 287 U.S. 45 (1932), and addressed again in Avery v. Alabama, 308 U.S. 444 (1940). Gideon v. Wainwright, 372 U.S. 335 (1963) applied the right to counsel for indigent defendants to the states and Strickland v. Washington, 466 U.S. 668 (1984), created a constitutional standard for the right to effective counsel. See Thomas Hagel, Toward a Unified Statutory Standard for Effective Assistance of Counsel: A Right in Search of Definition after Strickland, 17 LOYOLA U. OF CHI. L. J. 203, 204-09 (1986).

6 See Gideon v. Wainwright, 372 U.S. 335 (1963).

7 Miranda v. Arizona, 384 U.S. 436 (1966).

8 See, e.g., MONTESQUIEU, SPIRIT OF THE LAWS, (separation of powers creates the ideal form of government and ensures the maximum freedom to citizens). JEAN-JACUES ROUSSEAU, THE SOCIAL CONTRACT (a contract is formed that permits government as long as the government protects the rights of the governed). VOLTAIRE, TREATISE ON TOLERANCE (supporting the premise that the state should not impose religion).

9 There are complexities here. The U.S. Constitution was to some extent an effort to create a stronger central government than existed under the Articles of Confederation. Still, the overriding concern was constraining the centralizing tendencies of national governments. In addition to the ways in which this was done mentioned in the text, central to the original plan was a federal system in which the states maintained their sovereignty in many respects, and only those powers necessary for an effective national government were given to it in the Constitution.

10 See, e.g. David M. Kirkham, European Sources of American Constitutional Thought Before 1787, 3 USAFA J. Legal Studies 1 (1992).

11 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

12 U.S. CONST. amend. V, XIV, ' 1.

13 U.S. CONST. amend. V.

14 U.S. CONST. amend. VI and In re Winship, 397 U.S. 358 (1970).

15 U.S. CONST. amend. V.

16 U.S.CONST. amend. IV.

17 U.S. CONST. amend. VI.

18 Id.

19 U.S. CONST. amend. V.

20 Papachristou v. Jacksonville, 405 U.S. 156 (1972).

21 See, e.g., Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885 (2004) (arguing that this rule is increasingly out of favor).

22 For example, U.S. Const. amend. V protects against double jeopardy and U.S. Const. amend. VIII prohibits excessive bail, excessive fines and punishments which are Acruel and unusual.@ Brady v. Maryland, 373 U.S. 83 (1963), requires that the State disclose evidence favorable to the defendant.

23 RONALD J. ALLEN, ET AL., COMPREHENSIVE CRIMINAL PROCEDURE, 749-750 (2001).

24 U.S. CONST. amend. I - X.

25 A contested view in the U.S. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U.L. REV. 204 (1980) and DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 373-97 (1990).

26 See QiZhang (Associate Professor of Peking University Law School, China), A Comparative Study on Case Law, COMPARATIVE LAW STUDY ,5Series No.4. (2002) (in Chinese).

27 Some states label such things as Ajaywalking@ traffic violations as Aviolations@ or Aoffenses@ rather than Afelonies@ or Amisdemeanors.@ They remain criminal, however.

28 See Ronald J. Allen, The Police and Substantive Rulemaking: Reconciling Principle and Expediency, 125 PA. L. REV. 62 (1976), The Police and Substantive Rulemaking; A Brief Rejoinder, 125 PA. L. REV. 1172 (1977).

29 Herbert L. Packer, The Courts, the Police, and the Rest of Us, 57 J. CRIM. L. & CRIMINOLOGY 238 (1966).

30 See Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the ACosts@ of the Exclusionary Rule: The NIJ Study and Other Studies of ALost@ Arrests, 1983 AM. B. FOUND. RES. J. 611 (1983);and the Miranda debate: Yale Kamisar, Miranda Thirty-Five Years Later: A Close Look at the Majority and Dissenting Opinions in Dickerson, 33 ARIZ. ST. L. J. 387 (2001); Can (Did) Congress AOverrule@ Miranda?, 85 CORNELL L. REV. 883 (2000); A Dissent from the Miranda Dissents: Some Comments on the ANew@ Fifth Amendment and the Old AVoluntariness@ Test, 65 MICH. L. REV. 59 (1966), RONALD J. ALLEN, ET AL., COMPREHENSIVE CRIMINAL PROCEDURE, 749-750 (2001).

31 Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48 (2000). Another complicating feature of the American experience is the federal nature of the United States. In the United State, the individual states are still conceived of as possessing certain attributes of sovereignty, and one of the most important is authority over what is referred to as the Apolice power.@ This includes such things as health, safety, and welfare, and thus includes the criminal process. How the Constitution came to be viewed as constraining state authority is another complicated piece to the puzzle that I put aside.

32 Powell v. Alabama, 287 U.S. 45 (1932). Frank Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. ILL. L. FORUM 518, 521 (1975).

33 Norris v. Alabama, 294 U.S. 587 (1935).

34 Moore v. Dempsey, 261 U.S. 86 (1926).

35 Id. at 90.

36 Id. at 90-92.

37 Frank v. Magnum, 237 U.S. 309, 335 (1915). Frank involved a Jewish defendant.

38 Brown v. Mississippi, 297 U.S. 278, 287 (1936).

39 See Ronald J. Allen, Clarifying the Burden of Persuasion and Bayesian Decision Rules: A Response to Professor Kaye, 4 INT. J. OF EVIDENCE & PROOF 246 (2000) and In re Winship, 397 U.S. 358 (1970).

40 There is yet another relevant economic perspective, which focuses on the deterrent effect of sanctions. See, e.g. Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193 (1985), Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (168).