Journal of Criminal Law and Criminology Volume 58 | Issue 4 Article 11 1968 Book Reviews Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Book Reviews, 58 J. Crim. L. Criminology & Police Sci. 576 (1967) This Book Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. BOOK REVIEWS [Vol. 58 order of the court prohibiting the taking of photo- S.Ct. 1213 (1967). This was a civil case against graphs in connection with any judicial proceeding police officers and a municipal judge brought in the on or from the same floor of the building on which United States District Court of Mississippi. The courtrooms are located. On appeal the defendant plaintiff claimed that the officials involved had argued, first, that the order was void on the ground violated his rights under the Civil Rights Act of of vagueness, since it did not state whether it ap- 1871. The Court, reversing in part, held that local plies to terminated proceedings. Defendant's judges could avail themselves of judicial immunity second contention was that the order was violative from a suit under this act when the issue concerned of his First Amendment freedoms in that it was purely judicial actions. The Court was careful to unduly restrictive of the press. make the distinction that purely administrative The Court of Appeals upheld the conviction, functions of judges were not subject to the im- stating, initially, that by prohibiting the taking of munity. The Court also held that the defense of photographs, "in connection with any judicial good faith was open to police officers provided the proceeding," the order applied to any proceeding, alleged act was in the performance of official whether in process, recessed, or terminated. Since duties. there was already a section of the United States There was a strong dissent by Justice Douglas Code which proscribed similar conduct in con- which pointed out that the Civil Rights Act re- nection with a judicial proceeding in progress, the ferred to "any person" and made no mention of court contended that the order was meant to judicial immunities. He also stated that the Con- expand this provision. The court also held that gressional Record disclosed strong minority support defendant's First Amendment freedoms were not for such an immunity, but an amendment to the infringed. "It is beyond argument that a trial effect was defeated. court must be afforded ample latitude to insure that The remand was based solely on evidentiary an accused receives a fair trial comporting with problems, the Court holding that no defense of fundamental due-process requirements-a proceed- good faith had been ing conducted in an atmosphere of procedural interposed by the defendant police officers. decorum and as free as possible from the threat of This decision, while having an prejudicial publicity." This right to limit the news- emotional impact on many, is the only justifiable gathering process starts at the courtroom door. one. No doubt many judicial and police acts do The majority also expressed some doubt that the violate the spirit of the Civil Rights Act, but to right to gain access to information, as opposed to allow unlimited federal judicial review of them relating that information, is encompassed within would create anarchy in the state legal systems. the freedom of press. Few local judges could be made to change their ways, and an overwhelming number of additional Judicial Immunity Protects Judges Against appeals could be expected to harass hard working Suit Under Civil Rights Act-Pierson v. Ray, 87 officials. BOOK REVIEWS Edited by C. R. Jeff ery THE SuspEcT AND SociETY-Criminal Procedure justice of the Supreme Court of Illinois and as a and Converging Constitutional Doctrines. By former professor, and now lectures in law at Walter V. Schaefer. Evanston: Northwestern Northwestern University. The lectures were given University Press. 1967. Pp. 99. $3.50. after Escobedo v. United States, but before Miranda This book consists of the Rosenthal Lectures v. Arizona and its related cases were decided. given in 1966 at the Northwestern University Law After Miranda the lectures were published as School by the author, who is well known as a delivered with appropriate references to that case. BOOK REVIEWS The author sees the problem of the suspect and cation to the jail house explored. Criticism is society as a conflict between the rights of the expressed of the probable cause doctrine for deten- accused and the necessity of adequate police tion or arrest because of its misplaced emphasis interrogation as a remedy of law enforcement in on the belief of the suspect's guilt rather than on the interest of society. whether the particular restraint of the suspect In the first part, entitled The Converging Doc- was reasonably necessary as a means of law en- trines, the constitutional doctrines which bear forcement. upon criminal procedure from arrest to arraign- The second lecture, entitled A Legislative Pro- ment, and specifically with police interrogation, posal, deals primarily with the Model Code of are analyzed. These constitutional doctrines in- Prearraignment Procedure formulated by the clude probable cause for arrest (Fourth Amend- American Law Institute. The discussion of this ment), the privilege against self-incrimination proposal is prefaced by advancing the view that (Fifth Amendment), right to counsel (Sixth police interrogation is a necessary, useful, and Amendment), and the procedural due process and desirable technique of law enforcement. While the equal protection requirements of the Fourteenth possibility of abuse in the present system of Amendment. Some criticism of the common-law interrogation is recognized as being inherent in method of the development of constitutional doc- the secret quality of the station-house interrogation trines is expressed, based primarily on the concept nevertheless the remedy, which the present de- that the method has a tendency to push a doctrine cisions of the Supreme Court foreshadow to the to its logical conclusion if the proposition has any author, is not to outlaw all interrogation, con- viability. On this premise the author foresees fessions and admissions made during a period of that the constitutional doctrines under analysis police custody. will develop to the undesirable point where no In the main, the author accepts the Model questioning of a suspect by the police will be Code of Prearraignment Procedure but points out permitted. that the advice given by the station-house officer Each constitutional right of the accused is would be more effectively and appropriately critically examined. The changing underlying basis given by a judicial officer. The problem of repre- of the doctrine of a voluntary confession is de- sentation by counsel during the police interrogation lineated as first resting upon reliability, then upon is discussed and the author's resistance to "an the method of obtaining the confession under the extended right to counsel stems from my belief accusatorial system and decrying the inquisitorial that asking questions is a natural and fair means system, and finally, upon a due-process basis. of securing answers which society must have". In examining the relationship of the volun- In the third lecture, entitled The Priviledge-an tariness of the confession to the privilege against Appraisal and a Proposal, the author examines self-incrimination, it is pointed out that histori- the Fifth Amendment privilege against self-in- cally the two doctrines were distinct, but the crimination and characterizes it as a doctrine in Supreme Court has recently rejected the tradi- search of a reason. He finds most reasons for the tional concern of trustworthiness as a test and privilege-whether the shadow of the rack, the held the basis for the exclusion of an involuntary protection of innocent men, or the lending of confession was the deterrence of undesirable po- dignity, humanity and impartiality to the criminal lice behavior under the accusatorial system. The proceeding-as not fully justifying the privilege, Court's swing to the view that an involuntary at least in its expanded concept. Its invocation to confession also rests upon the Fifth Amendment protect political and religious beliefs is thought to privilege against self-incrimination is suggested be unjustified as such beliefs should come under as making it easier for the Court to arrive at the the shelter of the First Amendment, which pri- doctrine of Malloy v. Hogan. In sum the author marily was intended to protect them. believes the Fifth Amendment privilege should be Since the author believes the privilege is invoked narrowly construed and has no application to most often because of the accused's fear of being station-house interrogation and he would go back impeached by his prior criminal record, he ad- to reliability as the sole test of an involuntary con- vocates that to safeguard the accused, and to fession. remove some of the collateral effects of such The history of the constitutional right to coun- impeachment, that only past convictions which sel is developed and the doctrine's practical appli- directly bear on testimonial deception, such as BOOK REVIEWS [Vol. 58 perjury, should be admitted in evidence. In addi- tive, does not seem to this reviewer to be a practical tion, since the privilege against self-incrimination solution in this country, where the problems of suggests guilt to the layman, and since the privilege law enforcement in metropolitan areas are so is against our sense of morality, the author claims different from the methods and needs of urban the trier of the facts should be allowed to decide and rural communities.