Vol. 7 No. 9 (September 1997) pp. 431-433.
THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES by Akhil Reed Amar. New Haven: Yale University Press, 1997. 283 pp. Cloth $30.00. ISBN 0-300-06678-3
Reviewed by Mark A. Graber, Government Department, University of Maryland.
Many people will read and cite THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES. Some will appreciate an exceptionally learned and lucid interpretation of the Fourth, Fifth and Sixth Amendments that should be required reading for constitutional law scholars and academics concerned with constitutional criminal procedure. Others will read the book because the author is the Southmayd Professor of Law at Yale Law School, not a social scientist at a less elite school who has merely spent a professional career studying the criminal process. Finally, the central theme of the book will resonate with the increasing number of American politicians and citizens who share Professor Amar's impatience with constitutional rules that seem to shelter the guilty at the expense of innocent victims and defendants. THE CONSTITUTIONAL AND CRIMINAL PROCEDURE does offer less fashionable proposals, but the disclaimer the back of the book that such policies are inextricably linked to the more popular proposals in the book will be ignored.

THE CONSTITUTION AND CRIMINAL PROCEDURE is animated by a admirable concern with integrating constitutional criminal procedure into the broader field of constitutional law and a more political concern with developing constitutional rules of criminal procedure that protect the innocent without giving windfalls to the guilty. "[T]he Constitution," Professor Amar repeatedly claims, "seeks to protect the innocent." In his view, constitutional language, the original understanding of the constitutional rules of criminal procedure, and common sense all demonstrate that "the guilty . . . [should] receive procedural protection only as an incidental and unavoidable byproduct of protecting the innocent because of their innocence" (pp. 154) (emphasis added). A polity more attuned to the innocence protecting features of the Bill of Rights, the book asserts with great clarity, would substitute civil damages for the exclusionary rule as a remedy for fourth amendment violations, compel criminal defendants to testify before trial as long as their words could not be used at trial, and only dismiss with prejudice cases that failed to go to trial speedily when such delays clearly influenced the accuracy of the trial. Professor Amar is particularly contemptuous of what he describes as the "upside-down rules" (p. 119) that contemporary constitutional criminal procedure demands, remedies that benefit guilty defendants without compensating innocent persons falsely accused of crime. The exclusionary rule, for example, is of little value to innocent victims of unconstitutional searches.

Professor Amar has clearly mastered the forms of legal argument. His book is a model of how history, text, and policy can be combined to create a constitutional argument. The text avoids the common tendency in contemporary constitutional law to convert a policy argument into a constitutional argument through a vague reference to a piece of constitutional text or a dollop of constitutional history. Amar's understanding of legal history is particularly interesting. THE CONSTITUTION AND CRIMINAL PROCEDURE offers a particularly compelling demonstration that the fourth amendment originally reflected a bias against search warrants, rather than, as contemporary constitutional law proclaims, a preference for that mode of investigation. An officer with a valid search warrant, Amar notes, could not be sued at common law for trespass. By narrowly restricting warrants, the framers sought to insure that any officer who engaged in an unreasonable search would be liable to suit before a civil jury (pp. 12-13). No civil libertarian after reading this book will be able to claim with a straight face that the standard American Civil Liberties Union (ACLU) version of constitutional criminal procedure was specifically intended by the persons responsible for the original Constitution and Bill of Rights.

Still, while THE CONSTITUTION AND CRIMINAL PROCEDURE makes many reasonable legal arguments for narrowing the scope or changing the focus of the Fourth, Fifth and Sixth Amendments, few claims in the book are irrefutable. At times, Amar regards language as clear that seems more ambiguous. He thinks "the words [of the Fourth Amendment] do not require exclusion of reliable evidence in criminal trials, but they do presuppose common law and other property and tort law remedies." On another reading, the rules of constitutional criminal procedure presuppose criminal law, not civil law, remedies. Amar's claim that the central purpose of constitutional criminal procedures is to protect the innocent seems inconsistent with the American constitutional experience. The Anglo-American legal incidents which most excited the colonists involved persons (Zenger, Wilkes) who were technically guilty of crimes under English law. The colonial emphasis on trial by local jury may suggest that many constitutional criminal procedures are better understood as devices to prevent a distant government, English or American, from enforcing unpopular laws or imprisoning popular persons. The outcome in the recent O.J. Simpson trial may be the consequence, rather than the perversion, of this original conception of the constitutional rights of criminal suspects. Amar sees the Simpson trial as demonstrating popular dissatisfaction with the criminal process (149-50), but no recommendation in his book would have influenced the outcome of that trial. Evidence was not excluded, and OJ was perfectly willing at his civil trial to testify under oath that he was innocent.

The more significant criticism of THE CONSTITUTION AND CRIMINAL PROCEDURE concerns the genre Amar has so clearly mastered. Amar may be the last and greatest Landellian. His work exhibits an extraordinary grasp of traditional legal materials, cases, legal treatises, law review articles, and the understandings of criminal procedures that animated the framing of constitutional criminal procedures. On the other hand, a police officer who read the book would have no reason to search Professor Amar's office or house for copies of the LAW & SOCIETY REVIEW or any other journal that regularly publishes studies of criminal procedure in practice. With the exception of one account of police interrogation, THE CONSTITUTION AND CRIMINAL PROCEDURE is informed by no empirical study of the actual enforcement of constitutional norms or the impact of various proposed reforms. Following too common legal practice, Amar tends to deduce facts from his theories, rather than resting his normative theories on broader empirical foundations.

This exaltation of traditional legal sources over social science studies leads to all the problems that impact studies have found in other areas of law. Amar tends to focus on doctrinally interesting cases rather than on issues that more commonly influence actual outcomes of criminal trials. He is justifiably outraged that the Fifth Amendment has been interpreted in ways that do not permit defendants to compel persons they believe to be guilty of the crime to take the stand, and communicates that outrage at length (pp. 49-51, 72, 92, 134-36). The book, however, rarely discusses constitutional rights to the resources necessary to conduct an adequate defense or issues of effective assistance of counsel, matters responsible for a significantly higher percentage of innocent persons being found guilty than the rare case where prosecutors insist on prosecuting one person in the face of evidence that another person identified by the defendant is guilty. Amar recognizes that a case should be dismissed when because of delay crucial exculpatory evidence is missing (p. 102), but he seems unaware of evidence suggesting that all persons detained before trial have less chance of winning at trial. Hence, the rule requiring dismissal of all cases where there is untoward delay before trial may simply recognize that in most cases delay adversely affects the defense in ways that cannot always be clearly identified.

Amar's focus on legal categories also causes him to make observations that stray from common sense. "[I]f the innocent man can prevail at this speedy, public, and fair trial," THE CONSTITUTION AND CRIMINAL PROCEDURE confidently proclaims, "he puts an end to the accusation of infamy and wins back his good name" (104). Just like O.J. To say that an innocent defendant when his trial is dismissed with prejudice "gets nothing for five unconstitutional months of mud on his name" (99) fails to acknowledge the significant financial and personal costs of the trial experience as well as the possibility of conviction despite factual innocence. Indeed, the categories "innocent" and "guilty" are not quite as dichotomous as they sometimes appear in THE CONSTITUTION AND CRIMINAL PROCEDURE. Persons may be guilty of some crimes they are charged with but not of others. Other persons may be technically guilty of crimes that police and prosecutors usually ignore (or at least do not prosecute to nearly the same degree).

Constitutionalism done properly is a multidisciplinary exercise. Professor Amar has made an important contribution to that exercise by elaborating in great detail the status of constitutional criminal procedure at the time of the framing and the confused evolution of constitutional criminal procedure at present. Constitutional analysis, however, is hardly exhausted by traditional legal analysis. Constitutional social science is needed to identify the reasons for evolution, discover how various constitutional procedures are actually functioning and predict the consequences of proposed reforms. The constitutional criminal procedures of a polity entering the twenty-first century should not be based exclusively on the words of an eighteenth century text as translated by a twentieth century law professor, no matter how sacred the text or erudite the law professor.

Copyright 1997