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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 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.