"Justice," declared Supreme Court Justice Benjamin Cardozo in 1934, "though due to the accused, is due to the accuser also . . . We are to keep the balance true."
Many people, frustrated by high crime rates, feel that the Supreme Court in recent years has tipped the balance against the police and too far in favor of the accused.
But due process for the accused is an essential safeguard; shortcuts to justice lead only to tyranny. The criminal law in America is therefore not only a sword with which society strikes those who prey upon it, but also a shield by which an accused defendant is protected from a vengeful public or overzealous police, prosecutors, or judges.
The legal system that defines and punishes crimimal acts also sets the limits within which the state may investigate and prosecute the criminal.
Thus, a fundamental premise of our criminal law is that a defendant is innocent until proven guilty. And the burden of proof is on the state to show that the defendant is guilty beyong a reasonable doubt, not on the defendant to prove his or her innocence.
The basic procedural or "due process" rights of an accused in a criminal trial are provided for in Bill of Rights.
The Fourth Amendment prohibits unreasonable searches and seizures and directs that warrants shall be issued only upon probable cause, while the Fifth Amendment provides for the use of a grand jury to indict persons accused of serious crimes, and prohibits double jeopardy and self-incrimination.
The right to a speedy, public trial by an impartial jury is provided for in the Sixth Amendment, which also guarantees the defendant's right to know the charges against him, to be confronted with the witness against him, to have defense witnesses summoned, and to have counsel. And the Eighth Amendment prohibits excessive bail or fines and cruel and unusual punishment.
The Supreme Court, which breathes life into the Consititution, over the years has expanded the scope of these provisions to the benefit of the accused.
Of key importance has been the Supreme Court's extension of federal due process requirements to state courts, where most criminal cases are tried. The Supreme Court has incorporated, by judical decision, the relatively specific safeguards for the accused of the Bill of Rights into the due process clause of the Fourteenth Amemdment, which was applicable to the states.
Of great significance has been the Supreme Court's extension to indigent defendants of the Sixth Amendment's guarantee that an accused shall have "the assistance of counsel for his defense."
In Powell vs. Alabama (1932), the Court held that the right of an indigent defendant to counsel in a capital case was required by due process of law and applicable to the states under the due process clause of the Fourteenth Amendment
Thirty years later, in Gideon vs. Wainright (1963), the Court extended the right to counsel to all cases involving a serious crime.
More controversial has been the Court's attempt to modify the actions of law enforcement officers in their search, arrest, and interrogation of defendents by excluding illegally seized evidence from trial.
For example, In Weeks vs. United States (1914), the Supreme Court held that the Fourth Amendment prohibition against unreasonable searches and seizures of persons and property requires a federal court to exclude evidence obtained by federal agents in violation of the amendment. In 1961, in Mapp vs. Ohio, the Court extended this rule to the states.
Critics claim that this exclusionary rule penalizes society and rewards the defendant for the mistakes of the police.
Others argue, however, that the police are concerned primarily with the confiscation of contraband and the disruption of suspected criminal activity rather than with ultimate conviction.
Therefore the police are not deterred from illegal searches and seizures even if the case is thrown out of court. But alternative attempts to deter illegal police conduct - such as civil actions for damages brought against the police by victims of illegal searches - have proven largely ineffective.Thus the dilemma remains.
The exclusionary rule has also been used to exclude as evidence confessions obtained by the police from suspects who had been denied an opportunity to consult with counsel. In 1964, in Escobedo vs. Illinois, the Court ruled that a confession thus obtained was a violation of the Sixth and Fourteen Amendments.
Two years later, in the landmark decision of Miranda vs. Arizona, the Court laid down specific guidelines for police interrogation of persons in their custody. Miranda required law enforcement officers to warn suspects that they had a right to remain silent, that anything they said could be used against them in court of law, and that they had a right to counsel before and during the interrogation. Only if a suspect waived these rights could police obtain a valid confession.
The Miranda decision had been severely criticized, not so much for the Constitutional principles it enunciated, as for its critical view of police interrogation methods at a time when many police forces were under community pressure for not doing enough to halt the rapid rise in crime.
Also, as Fred Graham, Supreme Court correspondent for "CBS News," wroter, the decision smacked of "benevolent authoritarianism" by the judiciary - an attempt to reform society from the top down, by imposing on the police rigid procedural rules.
Miranda came to symbolize the tension in our system of law between the protection we guarantee the accused and the protection we provide society from crime. As violence and street crime increased throughout the 1960s, many people felt that the criminals were winning the war on crime, not just on the street, but in the police station and courtroom as well.
But constitutional adjudication is never static. In Johnson vs. New Jersey (1966), the Supreme Court held that Miranda was not to be applied retroactively.
In Harris vs. New York (1971), the Court held that a defendant's statements to the police, made without being informed of his "Miranda rights" and therefore inadmissable in the prosecution's direct case could nonetheless be used to impeach the defendant's trial testimony. And in Michigan vs. Taylor (1974) the Court held that evidence obtained in pre-Miranda interrogation could still be used against a defendant in a trial beginning after the Miranda decision. Over time the balance drawn between the rights of the accused and the interests of the accuser seems sometimes to tip in one direction, sometimes in the other.
But to ask if the scales of justice have been tipped too far in favor of the accused is, I think, to misstate the question.
We should ask instead if the civil rights of the accused are mandated by the Constitutional safeguards against potential abuses of power by the government. I think that they are.
Anger at "permissive" judges obscures the fact that the Bill of Rights was included in our Constitution to protect the citizens of the newly created republic against government abuses of power.
If the government's power to search our property, seize our person, compel our confession set our bail, direct our trial, and determine our punishment is unchecked, then no one is really safe from the possibility of an unjust arrest and conviction. The requirements of the due process amendments check the government's discretion and afford various weapons to the accused for his or her own defense.
We extend these safeguards to defendants not because we sympathize with what they may have done, but because in upholding their rights, we protect our own. In guaranteeing the rights of others to be innocent until proven guilty, and in limiting the methods the state can use to prove them guilty, we affirm our faith in a nation under law, and our confidence in a free society.