International Symposium "The Right to a Fair Trial" Max Planck Institut für Ausländisches öffentliches Recht und Völkerrecht Heidelberg, Germany 31 January - 3 February 1996 "Fair Trial Standards in the United States of America" by Richard S. Frase Professor of Law University of Minnesota REVISED VERSION, May 1996 A. Introduction Most of the fair trial guarantees contained in the Covenant on Civil and Political Rights and other international human rights instruments are protected by law in the United States. Nevertheless, a number of problem areas remain. The following report first provides background information on the structure of courts and criminal laws in the U.S. It then addresses each of the issues of criminal justice identified in the U.N. Questionnaire on the Right to Fair Trial. The impact of global and regional human rights instruments in the U.S. is then examined, followed by some concluding remarks on the strengths and weaknesses of the U.S. approach, and the lessons to be learned from the United States' two-hundred-year-long struggle to improve fair trial standards in criminal cases. B. The Structure of Criminal Courts in the United States 1. State and Federal Courts and Crimes. The United States has a federal system of government, in which the power to define and punish criminal offences is exercised by each of the 50 states and also by the federal government. Each state is a sovereign entity, exercising broad police powers; the federal government is, in principle, a limited government exercising the "enumerated" powers specified in the U.S. Constitution. The Constitution confers no general police power on the federal government, but does grant Congress the authority to enact laws "necessary and proper" to carry out the central government's enumerated powers. Several of those enumerated powers (especially the power to regulate "interstate commerce") have been broadly interpreted by the courts; in addition, federal government regulations and operations have grown substantially, especially since the 1930s, and Congress has found that the enactment of ever broader (and more severe) federal criminal laws is politically popular. Hence, federal criminal jurisdiction and federal criminal caseloads have grown steadily over the years, and have increased dramatically since a "war on drugs" was declared, in the 1980s. Despite this increase, however, the great majority of criminal cases continue to be prosecuted in state courts, under state criminal laws. Some criminal acts (for example, customs violations) fall under exclusive federal jurisdiction, and may only be prosecuted in federal courts; others (for example, burglary of a private residence) fall entirely within state jurisdiction; and many others (for example, interstate transport of stolen property; most drug crimes, and many fraud and weapons offences) may be prosecuted in either state or federal court. In practise, most of the cases falling within concurrent state and federal criminal jurisdiction are prosecuted by state authorities; federal prosecutors use their discretion to select and prosecute only the most serious crimes, or those which the states are unwilling or unable to handle effectively, for example: crimes involving interstate movement, organized crime, complex transactions, corruption of local law enforcement or political officials, and denial of civil rights guaranteed by the U.S. Constitution. 1 State and federal criminal justice systems are generally very similar in their major features, but quite diverse in their details. No particular state or group of states is widely regarded as "typical," and the specialized criminal jurisdiction of the federal courts precludes using that system to illustrate the entire country. To some extent, the choice of a particular "sample" state is immaterial, since many aspects of state criminal justice are determined by the requirements of the U.S. Constitution 2; in comparison with Civil Law systems (or even Canada and Great Britain), relatively few procedural matters are governed by statutes or codes. The remainder of this paper will focus on the procedural rules derived from federal constitutional 1 Richard S. Frase, "The Decision to File Federal Criminal Charges - A Quantitative Study of Prosecutorial Discretion," University of Chicago Law Review, vol. 47, pp. 246-330 (1980). 2 Richard S. Frase, "Criminal Justice System," Encyclopedia of the American Constitution, Supplement I, pp. 132-36 (1992). 2 requirements, with reference to more or less "typical" statutes, procedure codes, and practises found in most states. Specific examples of state criminal procedure rules, statutes, and non-constitutional decisional law are drawn primarily from the author's home state, Minnesota, which appears to be fairly typical in most respects. 2. Crime Classification and the Structure of Courts and Rules. As is true in most countries, the structure of state criminal courts and procedural rules reflects the legal categories of crime. U.S. criminal law traditionally recognizes three major classes of crime: felonies (the most serious category), misdemeanors, and a third category variously called violations, petty offences, or petty misdemeanors. The more serious categories of crime receive more elaborate procedural safeguards. In most states, felonies are defined as offences punishable with more than one year of imprisonment. Such lengthy terms are normally served in large, state-run prisons, but felons may also receive shorter custodial terms to be served in smaller jails operated by local (county or city) political authorities. Common examples of felonies include murder, manslaughter, rape, robbery, kidnapping, aggravated assault, arson, burglary, other non-petty property crimes ( i.e., theft, possession of stolen property, and criminal damage to property), forgery, fraud, and non-petty violations of narcotics, weapons, gambling, or prostitution laws. Misdemeanors include less serious versions of the above offences, various public order crimes (drunk in public or other disorderly conduct; violation of building or health codes), and serious moving traffic violations (drunk driving; driving without a license). Many states recognize more than one category of misdemeanor offence. In Minnesota, "gross misdemeanors" are punishable with up to one year in jail, and are treated procedurally the same as felonies (except that the jury need only have six members, rather than 3 twelve). 3 Ordinary misdemeanors are punishable with up to 90 days in jail, and are handled under simpler, less demanding procedures (for example, defendants receive less detailed pretrial discovery of the prosecution's evidence). 4 The least serious category of offences (labelled "petty misdemeanors" in Minnesota) is usually punishable with a fine or other non-custodial penalty. This category includes lesser traffic violations and various minor regulatory offences. Such violations are not deemed to be "crimes" in Minnesota, but they are generally enforced by the police, and some (but not all) "criminal" procedures apply. Such defendants are presumed innocent and must be proved guilty beyond a reasonable doubt; there is no right to a jury trial, however, and indigent defendants do not automatically receive court-appointed counsel. 5 Most petty misdemeanor cases are handled by payment of scheduled fines, without any court appearance. Many states (as well as the federal system) have two levels of trial court. The lower court (city or municipal court, magistrate's court, etc.) is a court of limited jurisdiction; it may try misdemeanor crimes, but in cases of felony it may only hold arraignments and certain other pretrial hearings. Felony trials are held in the criminal division of the court of general jurisdiction (county court, district court, etc). Minnesota has a "unified" court system, in which all felony and misdemeanor hearings and trials are held in various divisions of the District Court. A judicial District may hear cases from a single large county, or from a group of several smaller counties. 3. Major Government Intrusions Outside of the Criminal Process. The Questionnaire responses in Parts C through F, below, will refer solely to the processing of adults charged with felony and misdemeanor violations (with 3 Minn. Stat. §§ 593.01, 609.02. 4 Minn. Stat. § 602.02; Minn. Rules Cr. Proc. 7.03, 9.01. 5 Minn. Rules Cr. Proc. 5.02 and 23. 4 brief comments in Part G on juvenile and military courts). These procedures and courts are most often used in the U.S. to impose serious deprivations of liberty and property. But such deprivations are also sometimes imposed by means of non-"criminal" procedures, three of which deserve special mention. First, persons can be seized and detained, sometimes for lengthy periods, under the civil and administrative procedures used to enforce immigration laws. 6 Second, state and federal law enforcement authorities are increasingly invoking civil forfeiture procedures which permit the confiscation of property alleged to be the fruit of criminal activity (especially drug trafficking), or to have served as an instrumentality of crime. 7 Some but not all criminal procedural safeguards apply in civil forfeiture actions. The Fifth Amendment's Privilege against compelled self-incrimination and ban on Double Jeopardy sometimes apply, as does the Fourth Amendment prohibition of unreasonable searches and seizures, and the Eighth Amendment ban on Excessive Fines; but the Sixth Amendment rights of confrontation and jury trial do not apply, nor