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Eric Manch
excerpted Wrom: GJSNBOHMKHJYFMYXOEAIJJPHSCRTNHGSWZ
with the Bathwater: How Continental-style Police Procedural Reforms Can
Combat Racial Profiling and Police Misconduct, 19 Arizona Journal of
International and Comparative Law 1025-1058, 1040- (Fall, 2002) (213
Footnotes Omitted)
A. Introduction: The Perils of a Double-Duty System of Law
Enforcement under the Adversarial System
Much of the stress facing the police in the United States comes from
the pressure of its ever-mounting responsibilities. The police are
charged with maintaining order, enforcing the law, collecting evidence,
and investigating crimes when violations of the law have occurred. Most
American law enforcement officials are at the disposition of local
authorities, who are responsible for properly training them in
constitutional law, and the legal procedures that must be followed to
avoid due process violations. This training is essential to prevent the
order-maintaining function from interfering with the evidence-gathering
function, a breach that can lead to police misconduct and racial
profiling.
A possible solution would be to physically separate these two
functions, following the French model of maintaining administrative and
judicial police forces. Though this separation is not always absolute,
the principle works to ensure that only those officers with a few years
of law enforcement experience will have the capability to seize
evidence, initiate the garde à vue, and perform other invasive
investigatory functions. Such a principle might be easily imported or
modified in America.
Those commentators who favor the continental inquisitorial system
have long advocated such a shift. In his book criticizing the American
criminal justice system, Lloyd Weinreb proposes the adoption of several
continental- style reforms. He notes the inherent difficulty in asking
law enforcement officials to respect the intricacies of the criminal
process when their primary responsibility is to act decisively to
maintain order in dangerous circumstances: "We cannot expect [the
police] to act in dangerous, violent, unpredictable, and uncertain
circumstances with the minimum of harm to themselves or others and also
to act judiciously, with discretion, and mindful of conflicting
interests [between the state and the accused]."
In sum, Weinreb argues, the police's peacekeeping function is
perpetually at odds with the criminal justice system's guarantee of due
process. The police must both stop crime and arrest the people
responsible for those crimes. To a certain extent this is unavoidable,
and often even desirable. For example, police are often best situated to
collect evidence in so-called "emergencies," and the Supreme
Court has repeatedly afforded them the capability to do so. Suppose a
police officer arrives at the scene of a bank robbery and apprehends a
person believed responsible for the robbery. The officer has now
performed his peacekeeping duties, but his responsibility does not end
there. He must now, with the aid of his fellow officers, collect
evidence and question suspects, usually subject only to the oversight of
his immediate superiors. The combined pressures of preventing crime and
scrupulously following procedure to ensure that individual
constitutional rights are not violated results in an overburdened police
force that may be ineffective in suborning its law enforcement role to
demands of criminal process.
To prevent the police from allowing its peacekeeping function to
inhibit or pollute the operation of justice, the Supreme Court has
issued constitutional rulings to guide police conduct. These decisions
maintain the balance between having an efficient, effective peacekeeping
force on the one hand, and a respect for civil liberties on the other.
Despite these rulings, official abuses and due process violations
inevitably occur, and the recent trend has been to interpret the Fourth
Amendment in such a way that a violation does not lead to an exclusion
of evidence at trial. These reversals suggest that a regimen of
judicially enforced rules may not be the best way to combat police
misconduct. In light of the Court's more conservative climate, any
effort to extend rules to hamstring police effectiveness will likely
result in an adverse reaction leading to further erosion of due process
protections.
Weinreb proposes a system in which the peacekeeping and criminal
process functions are split among separate agencies. In particular, he
proposes that a judicial officer, not unlike that found in the French
system, be charged with clerical tasks like booking and fingerprinting,
as well as investigative tasks like lineups and witness questioning.
Weinreb argues that the state should minimize the individual's contact
with the police force, which he considers the agency that, more than any
other, represents "the physical power of the state." According
to Weinreb, the exertion of physical power on the part of the state has
the potential to corrupt the outcome of the criminal process. This is a
view shared by many international jurisdictions that apply the
inquisitorial system. Such a system would presumably rely less upon
exclusionary rules and other judicial remedies designed to curb
constitutional abuse by placing control at the hands of administrators
specially trained in the trade of evidence gathering.
Assuming this separation of enforcement and investigating powers
would cause a decrease in racial profiling and other forms of police
misconduct, a profound shift in people's trust and confidence in police
could result. This change might cause the most significant psychological
impact on minority communities. A key element of this separation is the
detachment of the examining magistrate from law enforcement. In the
American system, the magistrate often becomes little more than a rubber
stamp for the police, signing on to warrants when requested without much
thought. But an independent magistracy according to the French model is
of a different conceptual character: a neutral party charged with
searching for the truth.
Of course, accepting continental-style reforms requires that
policymakers choose between the virtues of an adversarial system versus
those of an inquisitorial one. Rudolph Schlesinger, an advocate of the
inquisitorial system, pitches the debate in terms of
"truth-seeking" versus "truth-defeating" rules. He
cites examples of truth-defeating rules, including exclusionary rules
and the rule prohibiting the drawing of natural inferences from the
silence of the accused. Schlesinger then urges a reexamination of those
rules in light of the benefits they provide at the expense of
truthfulness.
Schlesinger's discussion of truth-defeating rules provides an
excellent crossroads for this analysis in Part III. A discussion of the
merits of the exclusionary rule naturally leads into a discussion of
rules and their impact on police misconduct. Accordingly, the first
subsection will examine the benefits of adopting a truth-seeking rule,
the first step of which would be to vest much of the police's
investigatory power into a independent magistracy and judicial police.
The second subsection will address the truth-defeating rule in Griffin,
and examine how its abolishment coupled with the adoption of
inquisitorial mode of evidence gathering and witness questioning might
have positive ramifications for the problem of racial profiling.
B. Eliminating the Atwater Problem through Neutralization of the Truth-Defeating
Exclusionary Rule
The exclusionary rule, as stated above, exists to deter police
misconduct. In particular, it seeks to prevent constitutional violations
that deny individuals their rights to privacy and freedom from illegal
search and seizure. The heading of this section is a bit misleading; a
solution to the Atwater problem of "rogue" police misconduct
will not directly result from an abolition of the exclusionary rule, or
even from a policy shift toward favoring so-called
"truth-seeking" rules. However, the bureaucratic reforms that
would precede such a policy shift could have an immediate impact on our
ability to punish and restrain the Officer Tureks of the American law
enforcement system.
The first step in employing such a system would be to create a
"judicial police" force, similar to the French model under the
purview of the examining magistrates and the attorney generals. At
first, this need not be an institutional distinction; a rudimentary
division could be implemented even within the same organization
following the rules set forth in the French model. For example, the
French Code of Criminal Procedure includes the following within the
ranks of the judicial police: mayors "and their adjuncts," and
officers and noncommissioned officers of the gendarmerie plus those
gendarmes that have served longer than five years. Also counted within
the ranks of the judicial police are certain members of the National
Police, including inspectors general, police commissioners, and
"civil servants of the police inspector's corps of the National
Police having at least two years of active service in the corps with
tenure" appointed by the Ministers of Justice and the Interior
following the recommendations of a commission.
While a possible American analogue would inevitably differ --the
above model includes officers who would be considered operators at the
state and federal level under our system, requiring a different set of
laws for each -- the French system sets forth well-defined requirements
for an officer or civil servant to meet before she may join the judicial
police. Regardless of any possible differences in application, the
philosophy is the same: officer training takes on a positive, rather
than a negative quality. Rather than setting negative limits on conduct
through an exclusionary rule, it enforces positive guidelines for
promotion, and sets a premium on education.
Most importantly, it appears to be an effective means of improving
the trust factor between citizens and law enforcement. If only the
best--or at least, the better--among law enforcement are permitted to
wield the investigatory power, then the public will be more inclined to
have faith in the police, and will be more willing to cooperate with
them.
C. Combating the Whren Problem of Pretextual Searches Through
Adoption of French Inquisitorial-Style Limitations on Police
Authority
A solution at the criminal procedure level to the racial profiling
problem as posed in Whren may lie within two distinct approaches: an
institutional solution and a judicial solution. In an institutional
solution, procedural reforms akin to the French inquisitorial model may
equally prevent racial profiling. In a judicial solution, the adoption
of deeper French inquisitorial style reforms may have an immediate
impact on the number of minorities incarcerated.
Implementing the changes proposed in the section above may also
reduce the instances of racially-motivated traffic stops. The logic
behind this argument is simple: if there is a more sophisticated
screening system for choosing the police who actually have the power to
seize evidence, question witnesses and the like, then there will be
fewer chances for abuse. It bears mentioning, however, that the Whren
case is not as clear an example of police misconduct as Atwater. Though
it appears from the facts of Whren that the defendants were stopped on
the pretext of a minor traffic offense so that the police could conduct
a vehicle search for drugs, such conclusions are difficult to surmise.
Justice Scalia was certainly inhospitable to this argument when he wrote
that holding the police to a "reasonable officer" standard
would be to "plumb the collective consciousness of law
enforcement," or to "speculat[e] about the hypothetical
reaction of a hypothetical constable -- an exercise that might be called
virtual subjectivity."
In other words, it is unclear whether the police in cases like Whren
acted improperly. Whether this was an actual incident of racial
profiling depends largely on one's point of view. Some commentators
characterize Whren as placing an implicit stamp of approval on racial
discrimination. Others have criticized the decision on constitutional
grounds. Some, such as Justice Scalia, view the decision as a
"run-of-the-mill case" that does not merit the overhauling of
the probable cause standard for search and seizure. The law as it stands
today would allow certain officers to engage in Whren-style racial
profiling without repercussions. However, without any uniform standard
of what is acceptable profiling and what is not, these kinds of
activities will continue.
A French-style division of authority among the police ranks has the
advantage of doing an end run around the constitutional problem of
racial profiling. Rather than preventing racial profiling as a matter of
law, the selection and promotion process theoretically would filter out
the cops more likely to engage in racial profiling, thereby reducing the
number of objectionable stops. If racial profiling is an unfortunate
by-product of the "broken windows" theory of police
enforcement, then limiting the authority of the police to conduct
invasive searches while separating the preventive and investigatory
functions of the police may correct this unfortunate side effect.
Procedural forms according to the French inquisitorial model have
implications for the racial profiling problem outside of vehicular
stops. Recall that the French criminal procedure code distinguishes
between "flagrant" and "non-flagrant" felonies, and
creates different search and seizure provisions for each. This
distinction, and the concomitant limitation on authority to search of
individual police officers, might limit the most grievous invasions of
privacy under the current American system. The flagrant/non-flagrant
felony distinction places limits on police authority to search, and thus
reduces the possibility of abuse. Of course, conservatives and strong
law-and-order advocates will decry such a policy as an unnecessary, even
dangerous impediment to police effectiveness. The numbers tell a
different story: in spite of such impediments, the French
"clearance rate" or percentage of known crimes that police
believe to have been solved, compared quite favorably to American
clearance rates during a two-year study conducted in 1979-80.
Any discussion of the possible benefits of adopting French
inquisitorial- style reforms must consider the possible downsides. It
simply will not do to view the French system with rose-colored glasses;
many have criticized the system and its putative benefits. One of the
most chiefly criticized aspects of the French system is the
effectiveness of the examining magistrates. This is troublesome, since
one of the most oft-cited benefits of the French inquisitorial model is
the impartiality and unique station of the examining magistrate. In
practice, the examining magistrate's authority is limited by the growing
authority of the police and the discretion of the prosecutor.
The judicial police's authority to search independently in case of
flagrant offenses -- once a factor that severely curtailed its
independent authority -- has been steadily eroded over the years. Most
notably, the French Code of Criminal Procedure was amended in 1958 to
allow an enquete de flagrance, an investigative inquiry conducted when a
flagrant offense is committed, in cases of delicts punishable by
imprisonment. This means that police authority to search is actually
greater than might be presumed under a cursory review of the French
system. Additionally, administrative features of the French system that
have been praised by various writers, such as the division of authority
between the administrative and judicial police, are not always as
effective as they seem. This distinction is, according to the
description of one writer, "functional and not institutional: the
same police officer may act as a member of the administrative police one
moment and as a member of the judicial police the next." This does
not mean that the distinction is meaningless. For example, only judicial
police can conduct an enquete de flagrance, and there are certain tenure
requirements that prevent just any police officer from becoming a member
of the judicial police. These criticisms do not foreclose the
possibility of employing French inquisitorial-style procedural reforms,
but they are nonetheless important to consider.
In addition to flaws inherent in the administrative division between
judicial and administrative police, the prosecutor's discretion to bring
certain charges over others, and the shortage of available examining
magistrates, cripples the benefits of the French inquisitorial system.
The number of examining magistrates is dwarfed by the sheer number of
judicial investigations that must be carried out per year. As a
practical matter, the French parliament legalized a procedure called the
enquete preliminaire (preliminary inquiry, formerly known as an enquete
officieuse or official inquiry) in 1958, which allowed the police to
investigate non-flagrant offenses with or without the authority of the
prosecutor. Such inquiries do not carry the force of an official
judicial investigation, but they give the police considerable power
nonetheless. Additionally, these inquiries allow the police to engage in
a similar kind of pretextual searching so deplored by critics of Whren.
Often, when a prosecutor cannot find sufficient evidence to charge a
person with a felony or severe delict, she will initiate a preliminary
investigation for a lesser offense in hopes of turning up evidence for
the greater offense.
Although these flaws slightly diminish the luster of the French
inquisitorial system, they do not mean that an application of French
inquisitorial-style reforms would be ineffective at combating racial
profiling. After all, no system is perfect. Abuses of any prosecutorial
and investigatory system, while regrettable, should not commit that
system to the dustbin of uselessness. Such flaws merely inform us of
concerns that should be addressed through application of the system.
Perhaps these problems could be addressed by increasing the number of
examining magistrates, or by imposing stricter controls on preliminary
investigations to prevent prosecutorial abuse. In sum, these flaws
counsel us to be both "idealistic and realistic" in our
efforts to apply continental solutions to American criminal justice
problems.
D. Approaching the Racial Profiling Problem Via a Reexamination of
the Adversarial System's Approach to Defendant's Testimony at Trial
The French inquisitorial model has applications beyond the realm of
criminal procedure. As noted above in Part II, the French system has
quite a different approach to questioning witnesses. Examining
magistrates play an essential role in the questioning of witnesses, both
in the pre-interview stage of collecting evidence and conducting
investigations and in the actual conducting of the interview. An
adoption of this model in America, either in whole or in part, might go
a long way toward closing the "trust divide" between minority
suspects and the police, and thus curb the psychological and social
effects of racial profiling.
Defendants in the American criminal justice system have long had a
strong disincentive to testify on their own behalf. The Fifth Amendment
guarantees defendants the right against self-incrimination. The Supreme
Court held in Griffin v. California, the definitive ruling on a
defendant's "right to remain silent" in the courtroom, that a
jury may not draw inferences from the silence of the accused. The
decision also provided a forum for the justices to discuss their
feelings on the adversarial and inquisitorial systems.
In Griffin, the Court held that commenting on the defendant's refusal
to testify violates the Self-Incrimination Clause of the Fifth
Amendment. Justice Douglas, author of the Court's opinion, derides the
notion of permitting a jury to make inferences from the silence of an
accused as a relic of the inquisitorial system of justice. The ruling
ran in contrast to California's constitution at the time, which allowed
"the court or counsel" to comment upon the silence of the
accused, and allowed it to be considered by the jury.
Justice Stewart, in his Griffin dissent, expressed misgivings about
whether California's rule was unconstitutionally offensive to the Fifth
Amendment. He noted that under the California rule, while the
prosecution will undoubtedly put a negative spin on the defendant's
silence, the defense will have an equal opportunity to explain that
silence, thereby "rebut[ting] the natural if uneducated assumption
that it is because the defendant cannot truthfully deny the accusations
made." He argued that the rule is not coercive at all, but rather
an attempt to rationally deal with a problem juries inevitably face: how
to interpret the silence of an accused. Then, in describing California's
approach to criminal procedure, he confronts the primary concern of
inquisitorial system advocates: the promotion of
"truth-seeking" rules:
The California procedure is not only designed to protect the
defendant against unwarranted inferences which might be drawn by an
uninformed jury; it is also an attempt by the State to recognize and
articulate what it believes to be the natural probative force of certain
facts. Surely no one would deny that the State has an important interest
in throwing the light of rational discussion on that which transpires in
the course of a trial, both to protect the defendant from the very real
dangers of silence and to shape a legal process designed to ascertain
the truth.
With its concern for promoting and protecting the probative force of
facts, it seems as though Justice Stewart is describing the French
system.
The Court has examined the Griffin rule in the context of a prison
disciplinary hearing, and Justice White, who joined in Justice Stewart's
dissent in Griffin, wrote the majority opinion in Baxter v. Palmigiano,
disparaging the Griffin rule without dispensing with it entirely. Citing
Justice Brandeis, who opined that "[s]ilence is often evidence of
the most persuasive character," Justice White questioned whether
the rule served a legitimate purpose. The Court in Baxter, however, went
no further than criticizing the existing rule, and refusing to extend it
to prison disciplinary hearings.
Griffin provides an excellent starting point for a discussion of
French inquisitorial-style reforms both in the courtroom and
interrogation room, in that it raises questions about how to determine
and evaluate facts. Under the present American system, defendants are
given an incentive not to testify at trial, and not to disclose
information to police when they are arrested. The American system, in
favoring adversarial proceedings, emphasizes an approach that, in
practice, may contribute to the lack of trust for the law enforcement
community generally held by minorities.
The distinction proposed by Schlesinger between truth-seeking and
truth- defeating rules becomes most apparent in this area. In assessing
the value of a truth-defeating rule, such as the Griffin rule
prohibiting inference drawing from a defendant's silence, Schlesinger
proposes the following three criteria:
First, the "other value" invoked as overcoming the value of
truth must be clearly spelled out. Secondly, it must be shown in the
light of reason and experience that the truth-defeating rule actually
serves such other value. And thirdly, the other value must be found to
be so strong that it justifies suppression of the truth, even though
such suppression may lead to conviction of the innocent or to massive
release of the guilty.
The "other value" in the Griffin rule is quite clear:
protection of the Fifth Amendment right against self-incrimination. Or
at least, this is the reason typically given as its justification. But
the Court in Baxter, as noted above, has already questioned the utility
of the rule. Once we begin to consider the Court's insistence on
maintaining the Griffin rule in spite of the generally inhospitable
climate it fosters for defendants, the "other value" becomes
more difficult to discern.
In light of the perceived trust deficit between minority communities
and the police, rules coming from decisions such as Griffin should be
reevaluated to consider their continuing usefulness. This leads to the
second step in Schlesinger's comparative analysis structure: whether in
the "light of reason and experience ... the truth-defeating rule
actually serves such other value." While the Griffin rule
ostensibly prohibits the jury from drawing inferences from the silence
of an accused, there are exceptions. Human nature being what it is, a
jury will naturally reach its own conclusions from a defendant's
silence, whether officially or unofficially. Prosecutors may even use
the Griffin rule as a weapon against the defendant. While the Griffin
rule is well-intentioned and may protect Fifth Amendment values, in many
cases it may turn out to be a paper tiger when put against the natural
feelings and prejudices of a jury.
Finally, having contemplated the first two elements of Schlesinger's
analysis, we arrive at the third question: whether the "other value
must be found to be so strong that it justifies suppression of the
truth, even though such suppression may lead to conviction of the
innocent or to massive release of the guilty." While the Griffin
rule does indeed protect the Fifth Amendment right against
self-incrimination, the pursuit of that goal may not be worth the cost.
Consider an analogy to the other truth-defeating rule previously
mentioned in Part III: the exclusionary rule. Neither the exclusionary
rule nor the Griffin rule is an explicit guarantee, although the Supreme
Court has found that the Constitution guarantees both. In particular,
the Griffin rule is, in the words of Justice Douglas, "a penalty
imposed by courts for exercising a constitutional privilege. It cuts
down on the privilege by making its assertion costly." But even
Justice Douglas recognizes doubts of the "rule against inferences
from silence" in the next line when he notes that "the
inference of guilt for failure to testify as to facts peculiarly within
the accused is in any event natural and irresistible, and that comment
on the failure does not magnify that inference into a penalty for
asserting a constitutional privilege." It is possible that the
Griffin rule does more harm than good. Although the Griffin rule
theoretically works in the interests of the defendant, its true
effectiveness is hard to quantify, and the ramifications of eliminating
the rule are worth considering.
The implications that might follow from abandoning the Griffin rule,
beyond the constitutional ones that will be considered in Part IV, are
difficult to predict. However, such a step would be a necessary
prerequisite to establishing a more inquisitorial-style system in the
French vein. Also, the potential benefits of such reforms are predicated
on the existence of other features unique to the French system. Some of
these features would be difficult to adopt under our Constitution; these
features will also be discussed further in Part IV.
Shifting into a "truth-seeking," rather than a
"truth-defeating" mindset could have interesting implications
for alleviating the trust deficit between police and minority
communities by decreasing the disincentive for witnesses to testify on
their own behalf. At the very least, the introduction of an inverse
Griffin rule -- an instruction that juries may draw inferences from the
silence of the accused -- would probably encourage defendant testimony.
Professor Frase goes one step further by recommending that evidence
rules be amended to allow admissibility of prior criminal records as
encouragement for witnesses to testify.
These provisions, combined with an adoption of the French
inquisitorial style in which the judge has a strong role in controlling
the direction of the case, would create a "truth-seeking"
environment in an American courtroom. This would defuse two of the most
powerful disincentives on the part of defendants to testify, both from a
strategic and psychological perspective: the threat of impeachment by
prior criminal record, and the risk of perjury charges. It would also
somewhat diminish the dominating presence of the prosecuting attorney in
the courtroom. A shift towards the French "truth-seeking"
model could create a sense of trust for law enforcement by reintegrating
the defendant into the trial process by encouraging his testimony and
providing a hospitable environment for that testimony.
. Candidate for J.D. in May, 2003 from the University of Arizona
James E. Rogers College of Law. |
