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Cornerstones of the Judicial Process Jerold H University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1993 Cornerstones of the Judicial Process Jerold H. Israel University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/230 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Courts Commons, and the Criminal Procedure Commons Recommended Citation Israel, Jerold H. "Cornerstones of the Judicial Process." Kan. J. L. & Pub. Pol'y 2 (1993): 5-30. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Cornerstones of the Judicial Process CORNERSTONES OF THE JUDICIAL PROCESS Jerold H. Israel Under our federated system of govern- all ing major modifications in specific proce- ment, each state and the federal government A sm, group dures and in institutions of administration. have their own criminal justice processes. Though the cornerstone objectives them- The federal system must comply with the of "coi netrstone" selves are well established, there has always constitutional prerequisites set forth in the been considerable disagreement as to the Bill of Rights, and the state systems must objective weight s si both precise scope of each objective and the comply with those Bill of Rights' provisions hiape accorded a particular objective when bal- made applicable to the states by the Four- ic st anced against another. These disagreements teenth Amendment,' but those constitutional the bas tructure explain in large part the differences in the prerequisites allow considerable room for content of each jurisdiction's implementa- variation from one jurisdiction to another. In and the'governing tion of the criminal justice process. The many respects, the fifty states and the federal disagreements also are reflected in the fre- government have used that leeway to pro- l ega li4 les of the quent divisions within the United States Su- duce considerable diversity in their respec- icif preme Court as to the interpretation of the tive criminal justice processes. At the same constitutional limitations shaped by the ob- time, however, one can readily identify cer- process i:n each state jectives. This article does not reach those tain common notions that run through the disagreements, but concentrates on the pre- fifty-one American criminaljustice processes. an(tinthe requisites for their analysis -- identifying the Those notions are the subject of this article. general character of the criminal justice cor- A small group of "cornerstone" objec-Jfeden Ilk, stem. nerstones, and identifying the major elements tives shape both the basic structure and the of the process that reflect their general influ- governing legal principles of the process in ence. each state and in the federal system. Various elements of these cornerstone objectives are mandated by the Implementing the Enforcement of the Substantive Law federal constitution, but their widespread acceptance was not a Roscoe Pound noted long ago that "legal procedure is a product of the Constitution. The state processes were not subject means, not an end; it must be made subsidiary to the substantive to federal constitutional prerequisites until the adoption of the law as a means of making that law effective in action."2 While Fourteenth Amendment after the civil war, but the objectives a procedure may promote values independent of the aims of were established long before then. Indeed, most of the corner- substantive law, Pound was correct in characterizing the raison stone objectives existed in the criminal justice processes of the d'etre of any procedural system as accomplishing the practical original states and the initial federal system, both of which Jerold H. Israel is the Alene and Allan Smith Professor of Law at the borrowed largely from English common law. Two centuries University of Michigan Law School and the Ed Roode Eminent later, the premises underlying these objectives continue to be at Scholar in Trial Advocacy and Procedure at the University of Florida the core of the American criminal justice process, notwithstand- College of Law. Spring 1993 HeinOnline -- 2 Kan. J.L. & Pub. Pol'y 5 1992-1993 Israel implementation of the substantive law. As substantive criminal law through the crimi- applied to the criminal justice process, this As Robe rt 5Summers nal justice process. For example, although it universal starting point mandates a process is conceivable that the use of torture to ex- that promotes effective enforcement of sub- notes, fit legal tract confessions could add to the effective- stantive criminal law -- that is, a process ness and efficiency of criminal law enforce- through which the government can detect, ordering ni not ment, employment of torture is now univer- apprehend, prosecute, convict, and impose nai does sally condemned.8 punishment upon those who have violated The following subsections discuss the the prohibitions of substantive criminal law. live by re gult alone, choices that have been made for the Ameri- However, as illustrated by the variety of can criminal justice process as reflected in criminal justice systems throughout the world, for p 'OceSdural the cornerstone objectives that shape it. There a process may be shaped in many different are nine such objectives: (1)achieving reli- ways despite the universal objective of effec- systems able factfinding (i.e., discovery of the "truth"); tively enforcing substantive criminal law. als oseek to (2) utilizing an adversarial process of adjudi- The choices made in implementing that ob- cation; (3) utilizing an accusatorial system of jective are what distinguish one system from serve valutes that stand proof; (4) minimizing erroneous convictions; another. (5) minimizing the burdens of accusation and Initially, choices must be made among apartfro ichieving litigation; (6) providing for lay participation; alternative procedural structures, all of which (7) respecting the dignity of the individual; are designed to further effective enforcement "result Ficacy. (8) maintaining the appearance of fairness; of substantive criminal law. The alternatives -ejj and (9) achieving equality in administration. reflect disagreements as to the procedures While the general framework provided needed to achieve effective enforcement and by these goals is well accepted, the specifics the allocation of authority to administer those procedures.' The of their implementation are not. In part, the divisions on imple- prevailing issue in this debate is to decide which structure mentation stem from disagreement on the precise substance of achieves the best enforcement of substantive law when re- individual goals. They also stem from an ongoing controversy sources allocated to that task are limited.4 concerning the precise relationship between the goals and effec- A second group of choices, relating to interests independent tive enforcement of substantive criminal law. There are two of effective enforcement, operate to make enforcement more major facets of this controversy. difficult to achieve. As Robert Summers notes, "in legal The first facet relates to achieving the aims of the criminal law ordering man does not live by results alone," for procedural through its effective enforcement. The appropriate scope of systems also seek to serve values that stand apart from achieving goals thought to serve that end may be assessed solely by 5 "result-efficacy." These independent values commonly are determining the content of the goal itself. There is no need to said to aim at achieving "fairness" in the process. While this balance the interests served by the goal against the societal amorphous concept of "fairness" may have a somewhat different interest in effective enforcement of the criminal law because the connotation in different societies, its fundamental elements are goal has been selected as a means of achieving effective enforce- fairly uniform in democratic societies.6 Fairness imposes both ment. The problem is that there is disagreement as to which of the substantive and procedural norms that restrain state power in process' foundational goals, if any, are properly viewed as a criminal law enforcement. Substantive norms recognize such means of achieving effective criminal law enforcement. The interests as human dignity and personal autonomy, while proce- second facet concerns goals that are acknowledged to serve dural norms reflect values such as community participation, a interests that run contrary to the societal interest in effective prescribed procedure, regularity, integrity, and promptness in enforcement. Conflict resolution clearly is needed in this area, application, and equality of treatment of like cases.7 but there is disagreement as to what is called for in resolving the Because the precise content of these independent values is conflict. derived in large part from political ideology, tradition, and culture, restraints imposed on the criminal justice process in The Aims of Effective Law Enforcement service of such values will vary from one country to the next. Yet Some commentators suggest that each of the nine objectives general agreement exists that some "fairness" restraints are noted above, at least as they are traditionally implemented,
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