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Military Law Review Vol. 69 DEPARTMENT OF THE ARMY PAMPHLET 27-100-69 MILITARY LAW REVIEW VOL. 69 Perspective FUTURE TRENDS IN THE ADMINISTRATION OF CRIMINAL JUSTICE Articles THE WAR-MAKING PROCESS USING CANADA'S PROCUREMENT EXPERIENCE TO STREAMLINE UNITED STATES GOVERNMENT PU RCHASlNG PRACTICES HEADQUARTERS, DEPARTMENT OF THE ARMY SUMMER 1975 MILITARY LAW REVIEW The Military Law Review provides a forum for those interested in military law to share the product of their experience and research. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. SUBMISSION OF ARTICLES: Articles, comments, recent de- velopment notes, and book reviews should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (1 Ith edition 1967) copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Subscription price: $7.65 a year, $1.95 for single copies. Foreign subscription, $9.60 per year. REPRINT PERMISSION: Contact Editor, Military Law Review, The Judge Advocate General’s School, Charlottesville, Virginia 22901. This Review may be cited as 69 MIL. L. REV. (number of page) (1975). i Pam 27-100-69 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-69 I WASHINGTON, D.C., Summer 297J MILITARY LAW REVIEW-VOL. 69 Page Perspective : Future Trends in the Administration of Criminal Justice Professor B. J. George, Jr. ...................... 1 Articles : The War-Making Process Captain John C. Cruden ......................... 35 Using Canada’s Procurement Experience to Streamline United States Government Purchasing Practices Captain John T. Kuelbs ........................ 145 Books Received ........................................ 187 iii FUTURE TRENDS IN THE ADMINISTRATION OF CRIMINAL JUSTICE* B. J. George, Jr.** It is a privilege to have been invited to prepare this paper as the Fourth Annual Hodson Lecture at The Judge Advocate General’s School. There is personal pleasure as well because of the years of as- sociation with Major General Kenneth J. Hodson in the work of the American Bar Association Criminal Justice Section Council. I hope that what follows will be as trenchant and relevant as his inaugural lecture in this series.l The focus of discussion in what follows (however broad the title) is the changing constitutional framework for the investigation, trial and review of criminal prosecutions; the nature of appropriate leg- islative response; and the potential magnification of state constitu- tional interpretation and legislation that has begun to flow from altered federal constitutional doctrines. From time to time, I refer to the “Warren Court” and the “Burger Court.’’ This is purely by way of convenience, referring in the first instance to the United States Supreme Court as it was constituted during the period 1963-1970 (obviously, not the exact span of Chief Justice Warren’s distinguished service on the Court), and in the second to the Court since 197 1. Although the personal influence of these two eminent jurists cannot be denied, the institution is of course larger than any single individual. Consequently, we are in fact ex- amining a collective shift of emphasis in constitutional interpretation, a shift which has a multitude of counterparts in the nearly two hundred years of the Court’s existence; a further shift most probably will ensue in the decade ahead. Nor is it appropriate to talk of “swings back-and-forth of the pendulum,’’ No reconstituted Supreme This article is an adaptation of the Fourth Annual Kenneth J. Hodson Criminal Law Lecture at The Judge Advocate General’s School on 31 March 1975. The views expressed are those of the author and do not necessarily represent the views of any governmental agency. +*Professor of Law and Director, Center for the Administration of Justice, Wayne State University. 1 Hodson, The Manual for Courts-Martial-1984, 57 MIL. L. REV. 1 (1972). 1 MILITARY LAW REVIEW [Vol. 69 Court ever repudiates wholly the doctrines of its predecessors; the doctrine of stare decisis retains enough vitality to temper whatever desiie +here may be to wipe away completely certain inherited precedents. This is as true of the Burger Court as of many of its predecessors. As far as I am able, I will endeavor to maintain a stance of neutral- ity as far as which doctrine or which Court is “better.” Judgments of that sort, while appropriate for after-hours discussions, should not affect a lawyer’s analysis of cases in which he or she is professionally involved. Therefore, I hope that what follows lies within acceptable bounds of doctrinal interpretation and is not unduly skewed in one direction or another. At the usual risk of oversimplification, the criminal procedure precedents of the JVarren Court seem to be characterized by certain tenets of constitutional philosophy. First, fundamental standards af- fecting criminal cases must be set by the Supreme Court and other federal courts. Accordingly, there should be no variation in practice from state to state, or between the state and federal jurisdictions. Second, the critical stage of a criminal case is the investigation, and it is the component of the criminal justice system most in need of judicial supervision. Assuming that law enforcement officials afford defendants their right to counsel, relatively little additional judicial attention is required beyond confirming that most of the provisions of the Bill of Rights, the grand jury indictment requirement excepted, apply to the states through the fourteenth amendment due process clause. Third, the traditional concepts that due process is a relative matter and that a criminal case must be shot through with funda- mental error thoroughly infecting the fairness of a criminal convic- tion before it will be reversed provide no satisfactory instrument to control constitutionally undesirable practices, particularly those of the police, Therefore, it is necessary to lay down quite specific con- stitutional standards with which officials must comply. Con- comitantly, relatively little reliance can be placed on the legislative process in bringing about needed reforms in criminal procedure. If indeed these premises are among those that can be gleaned from the decisions of the Warren Court, then an examination of the Supreme Court’s decisions in the present Burger Court era, particu- larly those announced since 1973, clearly reveals a substantial shift toward other directions. This shift can be illustrated and analyzed in terms of (1) the proper judicial role in control of police investiga- tion, (2) appropriate techniques of managing judicial caseloads, (3) 2 19751 CRIMINAL JUSTICE ADMINISTRATION the restoration and expanded use of the relative due process standard, and (4) a modification of the assignment of responsibility to regulate criminal procedure between the state and federal courts. I. JUDICIAL CONTROL OF POLICE INVE3TIGATIOK A. CARDINAL PRlNClPLES OF THE WARREN COURT Judicial control of searches and seizures is, of course, the tool the Supreme Court has used most often to control police investigations.’ The scope and frequency of invoking fourth amendment principles escalated geometrically, however, after the prohibition against un- reasonable searches and seizures was incorporated into the concept of due process of law under the fourteenth amendmente3 In this area, three important constitutional principles emerge from the Warren Court precedents. 1. The principle of the neutral and detached magistrate One mandate of the warrants clause of the fourth amendment is that any warrant must be issued by a ‘‘neutral and detached magistrate.” Since the official issuing the warrant in Coolidge was a police official specially designated as a justice of the peace, the requisite neutrality was lacking and the search warrant fell. Al- though the decision came at the break-point between the IT’arren Court and Burger Court eras, its roots go back into the most basic holding of the Warren Court in the search and seizure area.” 2. Paramountcy of the warrams clmse Before Chimel, it had generally been assumed that the two clauses of the fourth amendment, the “warrants” clause and the “reason- ableness” clause, were coequal. The initial choice as to which clause to invoke lay with law enforcement officials. If the decision was to seek a warrant, then the officers bore the practical burden of ad- vancing enough data upon which the judicial officer could find the requisite probable cause. If, however, officers felt that they had an adequate basis to arrest without first securing a warrant, they would arrest the individual and then search him. Perhaps they would even 2 In federal practice it dates from \Veeks v. United States, 232 US. 383 (1914). 3 Mapp v. Ohio, 367 U.S. 643 (1961). 4 Coolidge v. New Hampshire, 403 US. 443 (1971 ) . 5 Chimel v. California, 395 US.752 (1969). 3 MILITARY LAW REVIEW [Vol. 69 search a portion of the premises in which the arrest was made. Except for a very brief period when the Court appeared to prefer the war- rants clause,‘ the clauses were in a position of parity.’ The 11-arren Court reordered the priorities in Chimel. Because of the importance of judicial interposition between police officials and the individual citizen, particularly if he was a homeowner or occu- pant, the warrants clause was viewed as the standard and the “rea- sonableness” clause the exception.
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