Two Models of the Criminal Process

HERBERT L. PACKER
Source: Reprinted from The Limits of the Criminal Sanction by Herbert L.
Packer, with the permission of the publishers, Stanford ni!ersity Press.
"#$% by Herbert L. Packer.
In one of the most important contributions to systematic thought about the
administration of criminal justice, Herbert Packer articulates the values
supporting two models of the justice process. He notes the gulf existing
between the "ue Process !odel" of criminal administration, with its
emphasis on the rights of the individual, and the ""rime "ontrol !odel,"
which sees the regulation of criminal conduct as the most important
function of the judicial system.
wo models of the criminal process will let us percei!e the normati!e
antinomy at the heart of the criminal law. These models are not
labeled Is and #ught, nor are they to be taken in that sense. Rather,
they represent an attempt to abstract two separate !alue systems that
compete for priority in the operation of the criminal process. &either is
presented as either correspondin' to reality or representin' the ideal to the
e(clusion of the other. The two models merely a)ord a con!enient way to
talk about the operation of a process whose day*to*day functionin' in!ol!es
a constant series of minute ad+ustments between the competin' demands of
two !alue systems and whose normati!e future likewise in!ol!es a series of
resolutions of the tensions between competin' claims.
T
, call these two models the -ue Process .odel and the Crime Control
.odel. . . . /s we e(amine the way the models operate in each successi!e
sta'e, we will raise two further in0uiries: 1rst, where on a spectrum
between the e(tremes represented by the two models do our present
practices seem appro(imately to fall2 second, what appears to be the
direction and thrust of current and foreseeable trends alon' each such
spectrum3
There is a risk in an enterprise of this sort that is latent in any attempt
to polari4e. ,t is, simply, that !alues are too !arious to be pinned down to
yes*or*no answers. The models are distortions of reality. /nd, since they are
normati!e in character, there is a dan'er of seein' one or the other as 5ood
or 6ad. The reader will ha!e his preferences, as , do, but we should not be
so ri'id as to demand consistently polari4ed answers to the ran'e of
0uestions posed in the criminal process. The wei'hty 0uestions of public
Two .odels of the Criminal Process
"
policy that inhere in any attempt to discern where on the spectrum of
normati!e choice the 7ri'ht8 answer lies are beyond the scope of the
present in0uiry. The attempt here is primarily to clarify the terms of
discussion by isolatin' the assumptions that underlie competin' policy
claims, and e(aminin' the conclusions that those claims, if fully accepted,
would lead to.
VALUES UNDERLYING THE MODELS
9ach of the two models we are about to e(amine is an attempt to 'i!e
operational content to a comple( of !alues underlyin' the criminal law. /s ,
ha!e su''ested earlier, it is possible to identify two competin' systems of
!alues, the tension between which accounts for the intense acti!ity now
obser!able in the de!elopment of the criminal process. The actors in this
de!elopment:lawmakers, +ud'es, police, prosecutors, defense lawyers:do
not often pause to articulate the !alues that underlie the positions that they
take on any 'i!en issue. ,ndeed, it would be a 'ross o!ersimpli1cation to
ascribe a coherent and consistent set of !alues to any of these actors. 9ach
of the two competin' schemes of !alues we will be de!elopin' in this
section contains components that are demonstrably present some of the
time in some of the actors; preferences re'ardin' the criminal process. &o
one person has e!er identi1ed himself as holdin' all of the !alues that
underlie these two models. The models are polarities, and so are the
schemes of !alues that underlie them. / person who subscribed to all of the
!alues underlyin' the other would be ri'htly !iewed as a fanatic. The !alues
are presented here as an aid to analysis, not as a pro'ram for action.
Some Common Ground
Howe!er, the polarity of the two models is not absolute. /lthou'h it would
be possible to construct models that e(ist in an institutional !acuum, it
would not ser!e our purposes to do so. <e are postulatin', not a criminal
process that operates in any kind of society at all, but rather one that
operates within the framework of contemporary /merican society. This
lea!es plenty of room for polari4ation, but it does re0uire the obser!ance of
some limits. / model of the criminal process that left out of account
relati!ely stable and endurin' features of the /merican le'al system would
not ha!e much rele!ance to our central in0uiry. =or con!enience, these
elements of stability and continuity can be rou'hly e0uated with minimal
a'reed limits e(pressed in the Constitution of the nited States and, more
importantly, with unarticulated assumptions that can be percei!ed to
underlie those limits. >f course, it is true that the Constitution is constantly
appealed to by proponents and opponents of many measures that a)ect the
Two .odels of the Criminal Process
?
criminal process. /nd only the nai!e would deny that there are few
conclusi!e positions that can be reached by appeal to the Constitution. @et
there are assumptions about the criminal process that are widely shared
and that may be !iewed as common 'round for the operation of any model
of the criminal process. >ur 1rst task is to clarify these assumptions.
=irst, there is the assumption, implicit in the e( post facto clause of the
Constitution, that the function of de1nin' conduct that may be treated as
criminal is separate from and prior to the process of identifyin' and dealin'
with persons as criminals. How wide or narrow the de1nition of criminal
conduct must be is an important 0uestion of policy that yields hi'hly
!ariable results dependin' on the !alues held by those makin' the rele!ant
decisions. 6ut that there must be a means of de1nition that is in some sense
separate from and prior to the operation of the process is clear. ,f this were
not so, our e)orts to deal with the phenomenon of or'ani4ed crime would
appear ludicrous indeed Awhich is not to say that we ha!e by any means
e(hausted the possibilities for dealin' with that problem within the limits of
this basic assumptionB.
/ related assumption that limits the area of contro!ersy is that the
criminal process ordinarily ou'ht to be in!oked by those char'ed with the
responsibility for doin' so when it appears that a crime has been committed
and that there is a reasonable prospect of apprehendin' and con!ictin' its
perpetrator. /lthou'h police and prosecutors are allowed broad discretion
for decidin' not to in!oke the criminal process, it is commonly a'reed that
these o)icials ha!e no 'eneral dispensin' power. ,f the le'islature has
decided that certain conduct is to be treated as criminal, the decision
makers at e!ery le!el of the criminal process are e(pected to accept that
basic decision as a premise for action. The contro!ersial nature of the
occasional case in which the rele!ant decision makers appear not to ha!e
played their appointed role only ser!es to hi'hli'ht the stren'th with which
the premise holds. This assumption may be !iewed as the other side of the
e( post facto coin. Cust as conduct that is not proscribed as criminal may not
be dealt with in the criminal process, so conduct that has been denominated
as criminal must be treated as such by the participants in the criminal
process actin' within their respecti!e competences.
&e(t, there is the assumption that there are limits to the powers of
'o!ernment to in!esti'ate and apprehend persons suspected of committin'
crimes. , do not refer to the contro!ersy Asettled recently, at least in broad
outlineB as to whether the =ourth /mendment;s prohibition a'ainst
unreasonable searches and sei4ures applies to the states with the same
force with which it applies to the federal 'o!ernment. Rather, , am talkin'
about the 'eneral assumption that a de'ree of scrutiny and control must be
e(ercised with respect to the acti!ities of law enforcement o)icers, that the
security and pri!acy of the indi!idual may not be in!aded at will. ,t is
possible to ima'ine a society in which e!en lip ser!ice is not paid to this
assumption. &a4i 5ermany approached but ne!er 0uite reached this
Two .odels of the Criminal Process
D
position. 6ut no one in our society would maintain that any indi!idual may
be taken into custody at any time and held without any limitation of time
durin' the process of in!esti'atin' his possible commission of crimes, or
would ar'ue that there should be no form of redress for !iolation of at least
some standards for o)icial in!esti'ati!e conduct. /lthou'h this assumption
may not appear to ha!e much in the way of positi!e content, its absence
would render moot some of our most hotly contro!erted problems. ,f there
were not 'eneral a'reement that there must be some limits on police power
to detain and in!esti'ate, the hi'hly contro!ersial pro!isions of the niform
/rrest /ct, permittin' the police to detain a person for 0uestionin' for a
short period e!en thou'h they do not ha!e 'rounds for makin' an arrest2
would be a ma'nanimous concession by the all*powerful state rather than,
as it is now percei!ed, a substantial e(pansion of police power.
=inally, there is a comple( of assumptions embraced by terms such as
7the ad!ersary system,8 7procedural due process,8 7notice and an
opportunity to be heard,8 and 7day in court.8 Common to them all is the
notion that the alle'ed criminal is not merely an ob+ect to be acted upon but
an independent entity in the process who may, if he so desires, force the
operators of the process to demonstrate to an independent authority A+ud'e
and +uryB that he is 'uilty of the char'es a'ainst him. ,t is a minimal
assumption. ,t speaks in terms of 7may8 rather than 7must.8 ,t permits but
does not re0uire the accused, actin' by himself or throu'h his own a'ent, to
play an acti!e role in the process. 6y !irtue of that fact the process becomes
or has the capacity to become a contest between, if not e0uals, at least
independent actors. /s we shall see, much of the space between the two
models is occupied by stron'er or weaker notions of how this contest is to
be arran'ed, in what cases it is to be played, and by what rules. The Crime
Control .odel tends to de*emphasi4e this ad!ersary aspect of the process2
the -ue Process .odel tends to make it central. The common 'round, and it
is important, is the a'reement that the process has, for e!eryone sub+ected
to it, at least the potentiality of becomin' to some e(tent an ad!ersary
stru''le.
So much for common 'round. There is a 'ood deal of it, e!en in the
narrowest !iew. ,ts e(istence should not be o!erlooked, because it is, by
de1nition, what permits partial resolutions of the tension between the two
models to take place. The rhetoric of the criminal process consists lar'ely of
claims that disputed territory is EreallyE common 'round: that, for e(ample,
the premise of an ad!ersary system EnecessarilyE embraces the appointment
of counsel for e!eryone accused of crime, or con!ersely, that the obli'ation
to pursue persons suspected of commutin' crimes EnecessarilyE embraces
interro'ation of suspects without the inter!ention of counsel. <e may smile
indul'ently at such claims2 they are rhetoric, and no more. 6ut the form in
which they are made su''ests an important truth: that there is a common
'round of !alue assumption about the criminal process that makes
continued discourse about its problems possible.
Two .odels of the Criminal Process
F
Crime Control Values
The !alue system that underlies the Crime Control .odel is based on the
proposition that the repression of criminal conduct is by far the most
important function to be performed by the criminal process. The failure of
law enforcement to brin' criminal conduct under ti'ht control is !iewed as
leadin' to the breakdown of public order and thence to the disappearance
of an important condition of human freedom. ,f the laws 'o unenforced:
which is to say, if it is percei!ed that there is a hi'h percenta'e of failure to
apprehend and con!ict in the criminal process:a 'eneral disre'ard for
le'al controls tends to de!elop. The law*abidin' citi4en then becomes the
!ictim of all sorts of un+usti1able in!asions of his interests. His security of
person and property is sharply diminished, and, therefore, so is his liberty
to function as a member of society. The claim ultimately is that the criminal
process is a positi!e 'uarantor of social freedom. ,n order to achie!e this
hi'h purpose, the Crime Control .odel re0uires that primary attention be
paid to the e)iciency with which the criminal process operates to screen
suspects, determine 'uilt, and secure appropriate dispositions of persons
con!icted of crime.
9)iciency of operation is not, of course, a criterion that can be applied
in a !acuum. 6y 7e)iciency8 we mean the systemGs capacity to apprehend,
try, con!ict, and dispose of a hi'h proportion of criminal o)enders whose
o)enses become known. ,n a society in which only the 'rossest forms of
antisocial beha!ior were made criminal and in which the crime rate was
e(ceedin'ly low, the criminal process mi'ht re0uire the de!otion of many
more man*hours of police, prosecutorial, and +udicial time per case than
ours does, and still operate with tolerable e)iciency. / society that was
prepared to increase e!en further the resources de!oted to the suppression
of crime mi'ht cope with a risin' crime rate without sacri1ce of e)iciency
while continuin' to maintain an elaborate and time*consumin' set of
criminal processes. Howe!er, neither of these possible characteristics
corresponds with social reality in this country. <e use the criminal sanction
to co!er an increasin'ly wide spectrum of beha!ior thou'ht to be antisocial,
and the amount of crime is !ery hi'h indeed, althou'h both le!el and trend
are hard to assess. /t the same time, althou'h precise measures are not
a!ailable, it does not appear that we are disposed in the public sector of the
economy to increase !ery drastically the 0uantity, much less the 0uality, of
the resources de!oted to the suppression of criminal acti!ity throu'h the
operation of the criminal process. These factors ha!e an important bearin'
on the criterion of e)iciency, and therefore on the nature of the Crime
Control .odel.
Two .odels of the Criminal Process
H
The model, in order to operate successfully, must produce a hi'h rate of
apprehension and con!iction, and must do so in a conte(t where the
ma'nitudes bein' dealt with are !ery lar'e and the resources for dealin'
with them are !ery limited. There must then be a premium on speed and
1nality. Speed, in turn, depends on informality and on uniformity2 1nality
depends on minimi4in' the occasions for challen'e. The process must not
be cluttered up with ceremonious rituals that do not ad!ance the pro'ress
of a case. =acts can be established more 0uickly throu'h interro'ation in a
police station than throu'h the formal process of e(amination and cross*
e(amination in a court. ,t follows that e(tra+udicial processes should be
preferred to +udicial processes, informal operations to formal ones. 6ut
informality is not enou'h2 there must also be uniformity. Routine,
stereotyped procedures are essential if lar'e numbers are bein' handled.
The model that will operate successfully on these presuppositions must be
an administrati!e, almost a mana'erial, model. The ima'e that comes to
mind is an assembly*line con!eyor belt down which mo!es an endless
stream of cases, ne!er stoppin', carryin' the cases to workers who stand at
1(ed stations and who perform on each case as it comes by the same small
but essential operation that brin's it one step closer to bein' a 1nished
product, or, to e(chan'e the metaphor for the reality, a closed 1le. The
criminal process, in this model, is seen as a screenin' process in which each
successi!e state:prearrest in!esti'ation, arrest, postarrest in!esti'ation,
preparation for trial, trial or entry of plea, con!iction, disposition:in!ol!es
a series of routini4ed operations whose success is 'au'ed primarily by their
tendency to pass the case alon' to a successful conclusion.
<hat is a successful conclusion3 >ne that throws o) at an early sta'e
those cases in which it appears unlikely that the person apprehended is an
o)ender and then secures, as e(peditiously as possible, the con!iction of the
rest, with a minimum of occasions for challen'e, let alone post*audit. 6y the
application of administrati!e e(pertness, primarily that of the police and
prosecutors, an early determination of the probability of innocence or 'uilt
emer'es. Those who are probably innocent are screened out. Those who are
probably 'uilty are passed 0uickly throu'h the remainin' sta'es of the
process. The key to the operation of the model re'ardin' those who are not
screened out is what , shall call a presumption of 'uilt. The concept
re0uires some e(planation, since it may appear startlin' to assert that what
appears to be the precise con!erse of our 'enerally accepted ideolo'y of a
presumption of innocence can be an essential element of a model that does
correspond in some respects to the actual operation of the criminal process.
The presumption of 'uilt is what makes it possible for the system to deal
e)iciently with lar'e numbers, as the Crime Control .odel demands. The
supposition is that the screenin' processes operated by police and
prosecutors are reliable indicators of probable 'uilt. >nce a man has been
arrested and in!esti'ated without bein' found to be probably innocent, or,
to put it di)erently, once a determination has been made that here is
Two .odels of the Criminal Process
$
enou'h e!idence of 'uilt to permit holdin' him for further action, then all
subse0uent acti!ity directed toward him is based on the !iew that he is
probably 'uilty. The precise point at which this occurs will !ary from case to
case2 in many cases it will occur as soon as the suspect is arrested, or e!en
before, if the e!idence of probable 'uilt that has come to the attention of
the authorities is su)iciently stron'. 6ut in any case the presumption of
'uilt will be'in to operate well before the 7suspect8 becomes a 7defendant.8
The presumption of 'uilt is not, of course, a thin'. &or is it e!en a rule
of law in the usual sense. ,t simply is the conse0uence of a comple( of
attitudes, a mood. ,f there is con1dence in the reliability of informal
administrati!e fact*1ndin' acti!ities that take place in the early sta'es of
the criminal process, the remainin' sta'es of the process can be relati!ely
perfunctory without any loss in operatin' e)iciency. The presumption of
'uilt, as it operates in the Crime Control .odel, is the operational
e(pression of that con1dence.
,t would be a mistake to think of the presumption of 'uilt as the opposite
of the presumption of innocence that we are so used to thinkin' of as the
polestar of the criminal process and that, as we shall see, occupies an
important position in the -ue Process .odel. The presumption of innocence
is not its opposite2 it is irrele!ant to the presumption of 'uilt2 the two
concepts are di)erent rather than opposite ideas. The di)erence can
perhaps be epitomi4ed by an e(ample. / murderer, for reasons best known
to himself, chooses to shoot his !ictim in plain !iew of a lar'e number of
people. <hen the police arri!e, he hands them his 'un and says, 7, did it
and ,Gm 'lad.8 His account of what happened is corroborated by se!eral
eyewitnesses. He is placed under arrest and led o) to +ail. nder these
circumstances, which may seem e(treme but which in fact characteri4e with
rou'h accuracy the e!identiary situation in a lar'e proportion of criminal
cases, it would be plainly absurd to maintain that more probably than not
the suspect did not commit the killin'. 6ut that is not what the presumption
of innocence means. ,t means that until there has been an ad+udication of
'uilt by an authority le'ally competent to make such an ad+udication, the
suspect is to be treated, for reasons that ha!e nothin' whate!er to do with
the probable outcome of the case, as if his 'uilt is an open 0uestion.
The presumption of innocence is a direction to o)icials about how they
are to proceed, not a prediction of outcome. The presumption of 'uilt,
howe!er, is purely and simply a prediction of outcome. The presumption of
innocence is, then, a direction to the authorities to i'nore the presumption
of 'uilt in their treatment of the suspect. ,t tells them, in e)ect, to close
their eyes to what will fre0uently seem to be factual probabilities. The
reasons why it tells them this are amon' the animatin' presuppositions of
the -ue Process .odel, and we will come to them shortly. ,t is enou'h to
note at this point that the presumption of 'uilt is descripti!e and factual2
the presumption of innocence is normati!e and le'al. The pure Crime
Control .odel has no truck with the presumption of innocence, althou'h its
Two .odels of the Criminal Process
I
real*life emanations are, as we shall see, brou'ht into uneasy compromise
with the dictates of this dominant ideolo'ical position. ,n the presumption of
'uilt this model 1nds a factual predicate for the position that the dominant
'oal of repressin' crime can be achie!ed throu'h hi'hly summary
processes without any 'reat loss of e)iciency Aas pre!iously de1nedB,
because of the probability that, in the run of cases, the preliminary
screenin' process operated by the police and the prosecutin' o)icials
contains ade0uate 'uarantees of reliable fact*1ndin'. ,ndeed, the model
takes an e!en stron'er position. ,t is that subse0uent processes, particularly
those of a formal ad+udicatory nature, are unlikely to produce as reliable
fact*1ndin' as the e(pert administrati!e process that precedes them is
capable of. The criminal process thus must put special wei'ht on the 0uality
of administrati!e fact*1ndin'. ,t becomes important, then, to place as few
restrictions as possible on the character of the administrati!e fact*1ndin'
processes and to limit restrictions to such as enhance reliability, e(cludin'
those desi'ned for other purposes. /s we shall see, this !iew of restrictions
on administrati!e fact*1ndin' is a consistent theme in the de!elopment of
the Crime Control .odel.
,n this model, as , ha!e su''ested, the center of 'ra!ity of the process
lies in the early, administrati!e fact*1ndin' sta'es. The complementary
proposition is that the subse0uent sta'es are relati!ely unimportant and
should be truncated as much as possible. This, too, produces tensions with
presently dominant ideolo'y. The pure Crime Control .odel has !ery little
use for many conspicuous features of the ad+udicati!e process, and in real
life works out a number of in'enious compromises with them. 9!en in the
pure model, howe!er, there ha!e to be de!ices for dealin' with the suspect
after the preliminary screenin' process has resulted in a determination of
probable 'uilt. The focal de!ice, as we shall see, is the plea of 'uilty2
throu'h its use, ad+udicati!e fact*1ndin' is reduced to its barest essentials
and operatin' at its most successful pitch, it o)ers two possibilities: an
administrati!e fact*1ndin' process leadin' A"B to e(oneration of the suspect,
or A?B to the entry of a plea of 'uilty.
Due Proess Values
,f the Crime Control .odel resembles an assembly line, the -ue Process
.odel looks !ery much like an obstacle course. 9ach of its successi!e
sta'es is desi'ned to present formidable impediments to carryin' the
accused any further alon' in the process. ,ts ideolo'y is not the con!erse of
that underlyin' the Crime Control .odel. ,t does not rest on the idea that it
is not socially desirable to repress crime, althou'h critics of its application
ha!e been known to claim so. ,ts ideolo'y is composed of a comple( of
ideas, some of them based on +ud'ments about the e)icacy of crime control
de!ices, others ha!in' to do with 0uite di)erent considerations. The
Two .odels of the Criminal Process
%
ideolo'y of due process is far more deeply impressed on the formal
structure of the law than is the ideolo'y of crime control2 yet an accurate
tracin' of the strands that make it up is stran'ely di)icult. <hat follows is
only an attempt at an appro(imation.
The -ue Process .odel encounters its ri!al on the Crime Control
.odelGs own 'round in respect to the reliability of fact*1ndin' processes.
The Crime Control .odel, as we ha!e su''ested, places hea!y reliance on
the ability of in!esti'ati!e and prosecutorial o)icers, actin' in an informal
settin' in which their distincti!e skills are 'i!en full sway, to elicit and
reconstruct a tolerably accurate account of what actually took place in an
alle'ed criminal e!ent. The -ue Process .odel re+ects this premise and
substitutes for it a !iew of informal, nonad+udicati!e fact*1ndin' that
stresses the possibility of error. People are notoriously poor obser!ers of
disturbin' e!ents:the more emotion*arousin' the conte(t, the 'reater the
possibility that recollection will be incorrect2 confessions and admissions by
persons in police custody may be induced by physical or psycholo'ical
coercion so that the police end up hearin' what the suspect thinks they
want to hear rather than the truth2 witnesses may be animated by bias or
interest that no one would trouble to disco!er e(cept one specially char'ed
with protectin' the interests of the accused Aas the police are notB.
Considerations of this kind all lead to a re+ection of informal fact*1ndin'
processes as de1niti!e of factual 'uilt and to an insistence on formal,
ad+udicati!e, ad!ersary fact*1ndin' processes in which the factual case
a'ainst the accused is publicly heard by an impartial tribunal and is
e!aluated only after the accused has had a full opportunity to discredit the
case a'ainst him. 9!en then, the distrust of fact*fordin' processes that
animates the -ue Process .odel is not dissipated. The possibilities of
human error bein' what they are, further scrutiny is necessary, or at least
must be a!ailable, in case facts ha!e been o!erlooked or suppressed in the
heat of battle.
How far this subse0uent scrutiny must be a!ailable is a hotly contro!erted
issue today. ,n the pure -ue Process .odel the answer would be: at least as
lon' as there is an alle'ation of factual error that has not recei!ed an
ad+udicati!e hearin' in a fact*1ndin' conte(t. The demand for 1nality is
thus !ery low in the -ue Process .odel.
This strand of due process ideolo'y is not enou'h to sustain the model.
,f all that were at issue between the two models was a series of 0uestions
about the reliability of fact*1ndin' processes, we would ha!e but one model
of the criminal process, the nature of whose constituent elements would
pose 0uestions of fact not of !alue. 9!en if the discussion is con1ned, for the
moment, to the 0uestion of reliability, it is apparent that more is at stake
than simply an e!aluation of what kinds of fact*1ndin' processes, alone or
in combination, are likely to produce the most nearly reliable results. The
stumblin' block is this: How much reliability is compatible with e)iciency3
5ranted that informal fact*1ndin' will make some mistakes that can be
Two .odels of the Criminal Process
#
remedied if backed up by ad+udicati!e fact1ndin', the desirability of
pro!idin' this backup is not a)irmed or ne'ated by factual demonstrations
or predictions that the increase in reliability will be ( percent or ( plus n
percent. ,t still remains to ask how much wei'ht is to be 'i!en to the
competin' demands of reliability Aa hi'h de'ree of probability in each case
that factual 'uilt has been accurately determinedB and e)iciency
Ae(peditious handlin' of the lar'e numbers of cases that the process
in'estsB. The Crime Control .odel is more optimistic about the
improbability of error in a si'ni1cant number of cases: but it is also, thou'h
only in part therefore, more tolerant about the amount of error that it will
put up with. The -ue Process .odel insists on the pre!ention and
elimination of mistakes to the e(tent possible2 the Crime Control .odel
accepts the probability of mistakes up to the le!el at which they interfere
with the 'oal of repressin' crime, either because too many 'uilty people are
escapin' or, more subtly, because 'eneral awareness of the unreliability of
the process leads to a decrease in the deterrent e)icacy of the criminal law.
,n this !iew, reliability and e)iciency are not polar opposites but rather
complementary characteristics. The system is reliable because e)icient2
reliability becomes a matter of independent concern only when it becomes
so attenuated as to impair e)iciency. /ll of this the -ue Process .odel
re+ects. ,f e)iciency demands shortcuts around reliability, then absolute
e)iciency must be re+ected. The aim of the process is at least as much to
protect the factually innocent as it is to con!ict the factually 'uilty. ,t is a
little like 0uality control in industrial technolo'y2 tolerable de!iation from
standard !aries with the importance of conformity to standard in the
destined uses of the product. The -ue Process .odel resembles a factory
that has to de!ote a substantial part of its input to 0uality control. This
necessarily cuts down on 0uantitati!e output.
/ll of this is only the be'innin' of the ideolo'ical di)erence between the
two models. The -ue Process .odel could disclaim any attempt to pro!ide
enhanced reliability for the fact*1ndin' process and still produce a set of
institutions and processes that would di)er sharply from those demanded
by the Crime Control .odel. ,ndeed, it may not be too 'reat an
o!ersimpli1cation to assert that in point of historical de!elopment the
doctrinal pressures emanatin' from the demands of the -ue Process .odel
ha!e tended to e!ol!e from an ori'inal matri( of concern for the
ma(imi4ation of reliability into !alues 0uite di)erent and more far*reachin'.
These !alues can be e(pressed in, althou'h not ade0uately described by, the
concept of the primacy of the indi!idual and the complementary concept of
limitation on o)icial power.
The combination of sti'ma and loss of liberty that is embodied in the end
result of the criminal process is !iewed as bein' the hea!iest depri!ation
that 'o!ernment can inJict on the indi!idual. =urthermore, the processes
that culminate in these hi'hly aKicti!e sanctions are seen as in themsel!es
coerci!e, restrictin', and demeanin'. Power is always sub+ect to abuse:
Two .odels of the Criminal Process
"L
sometimes subtle, other times, as in the criminal process, open and u'ly.
Precisely because of its potency in sub+ectin' the indi!idual to the coerci!e
power of the state, the criminal process must, in this model, be sub+ected to
controls that pre!ent it from operatin' with ma(imal e)iciency. /ccordin'
to this ideolo'y, ma(imal e)iciency means ma(imal tyranny. /nd, althou'h
no one would assert that minimal e)iciency means minimal tyranny, the
proponents of the -ue Process .odel would accept with considerable
e0uanimity a substantial diminution in the e)iciency with which the
criminal process operates in the interest of pre!entin' o)icial oppression of
the indi!idual.
The most modest*seemin' but potentially far*reachin' mechanism by
which the -ue Process .odel implements these antiauthoritarian !alues is
the doctrine of le'al 'uilt. /ccordin' to this doctrine, a person is not to be
held 'uilty of a crime merely on a showin' that in all probability, based
upon reliable e!idence, he did factually what he is said to ha!e done.
,nstead, he is to be held 'uilty if and only if these factual determinations are
made in procedurally re'ular fashion and by authorities actin' within
competences duly allocated to them. =urthermore, he is not to be held
'uilty, e!en thou'h the factual determination is or mi'ht be ad!erse to him,
if !arious rules desi'ned to protect him and to safe'uard the inte'rity of the
process are not 'i!en e)ect: the tribunal that con!icts him must ha!e the
power to deal with his kind of case A7+urisdiction8B and must be
'eo'raphically appropriate A7!enue8B2 too lon' a time must not ha!e elapsed
since the o)ense was committed A7statute of limitations8B2 he must not ha!e
been pre!iously con!icted or ac0uitted of the same or a substantially similar
o)ense A7double +eopardy8B2 he must not fall within a cate'ory of persons,
such as children or the insane, who are le'ally immune to con!iction
A7criminal responsibility8B2 and so on. &one of these re0uirements has
anythin' to do with the factual 0uestion of whether the person did or did
not en'a'e in the conduct that is char'ed as the o)ense a'ainst him2 yet
fa!orable answers to any of them will mean that he is le'ally innocent.
<here!er the competence to make ade0uate factual determination lies, it is
apparent that only a tribunal that is aware of these 'uilt*defeatin' doctrines
and is willin' to apply them can be !iewed as competent to make
determinations of le'al 'uilt. The police and the prosecutors are ruled out
by lack of competence, in the 1rst instance, and by lack of assurance of
willin'ness, in the second. >nly an impartial tribunal can be trusted to make
determinations of le'al as opposed to factual 'uilt.
,n this concept of le'al 'uilt lies the e(planation for the apparently
0ui(otic presumption of innocence of which we spoke earlier. / man who,
after police in!esti'ation, is char'ed with ha!in' committed a crime can
hardly be said to be presumpti!ely innocent, if what we mean is factual
innocence. 6ut if what we mean is that it has yet to be determined if any of
the myriad le'al doctrines that ser!e in one way or another the end of
limitin' o)icial power throu'h the obser!ance of certain substanti!e and
Two .odels of the Criminal Process
""
procedural re'ularities may be appropriately in!oked to e(culpate the
accused man, it is apparent that as a matter of prediction it cannot be said
with con1dence that more probably than not he will be found 'uilty.
6eyond the 0uestion of predictability this model posits a functional
reason for obser!in' the presumption of innocence: by forcin' the state to
pro!e its case a'ainst the accused in an ad+udicati!e conte(t, the
presumption of innocence ser!es to force into play all the 0ualifyin' and
disablin' doctrines that limit the use of the criminal sanction a'ainst the
indi!idual, thereby enhancin' his opportunity to secure a fa!orable
outcome. ,n this sense, the presumption of innocence may be seen to
operate as a kind of self*ful1llin' prophecy. 6y openin' up a procedural
situation that permits the successful assertion of defenses ha!in' nothin' to
do with factual 'uilt, it !indicates the proposition that the factually 'uilty
may nonetheless be le'ally innocent and should therefore be 'i!en a chance
to 0ualify for that kind of treatment.
The possibility of le'al innocence is e(panded enormously when the
criminal process is !iewed as the appropriate forum for correctin' its own
abuses. This notion may well account for a 'reater amount of the distance
between the two models than any other. ,n theory the Crime Control .odel
can tolerate rules that forbid ille'al arrests, unreasonable searches,
coerci!e interro'ations, and the like. <hat it cannot tolerate is the
!indication of those rules in the criminal process itself throu'h the
e(clusion of e!idence ille'ally obtained or throu'h the re!ersal of
con!ictions in cases where the criminal process has breached the rules laid
down for its obser!ance. /nd the -ue Process .odel, althou'h it may in the
1rst instance be addressed to the maintenance of reliable fact*1ndin'
techni0ues, comes e!entually to incorporate prophylactic and deterrent
rules that result in the release of the factually 'uilty e!en in cases in which
blottin' out the ille'ality would still lea!e an ad+udicati!e fact*1nder
con!inced of the accused personGs 'uilt. >nly by penali4in' errant police
and prosecutors within the criminal process itself can ade0uate pressure be
maintained, so the ar'ument runs, to induce conformity with the -ue
Process .odel.
/nother strand in the comple( of attitudes underlyin' the -ue Process
.odel is the idea:itself a shorthand statement for a comple( of attitudes*of
e0uality. This notion has only recently emer'ed as an e(plicit basis for
pressin' the demands of the -ue Process .odel, but it appears to
represent, at least in its potential, a most powerful norm for inJuencin'
o)icial conduct. Stated most starkly, the ideal of e0uality holds that 7there
can be no e0ual +ustice where the kind of trial a man 'ets depends on the
amount of money he has.8 The factual predicate underlyin' this assertion is
that there are 'ross ine0ualities in the 1nancial means of criminal
defendants as a class, that in an ad!ersary system of criminal +ustice an
e)ecti!e defense is lar'ely a function of the resources that can be mustered
on behalf of the accused, and that the !ery lar'e proportion of criminal
Two .odels of the Criminal Process
"?
defendants who are, operationally speakin', 7indi'ent8 will thus be denied
an e)ecti!e defense. This factual premise has been stron'ly reinforced by
recent studies that in turn ha!e been both a cause and an e)ect of an
increasin' emphasis upon norms for the criminal process based on the
premise.
The norms deri!ed from the premise do not take the form of an
insistence upon 'o!ernmental responsibility to pro!ide literally e0ual
opportunities for all criminal defendants to challen'e the process. Rather,
they take as their point of departure the notion that the criminal process,
initiated as it is by the 'o!ernment and containin' as it does the likelihood
of se!ere depri!ations at the hands of 'o!ernment, imposes some kind of
public obli'ation to ensure that 1nancial inability does not destroy the
capacity of an accused to assert what may be meritorious challen'es to the
processes bein' in!oked a'ainst him. /t its most 'ross, the norm of e0uality
would act to pre!ent situations in which 1nancial inability forms an absolute
barrier to the assertion of a ri'ht that is in theory 'enerally a!ailable, as
where there is a ri'ht to appeal that is, howe!er, e)ecti!ely conditional
upon the 1lin' of a trial transcript obtained at the defendant;s e(pense.
6eyond this, it may pro!ide the basis for a claim whene!er the system
theoretically makes some kind of challen'e a!ailable to an accused who has
the means to press it. ,f, for e(ample, a defendant who is ade0uately
represented has the opportunity to pre!ent the case a'ainst him from
comin' to the trial sta'e by forcin' the state to its proof in a preliminary
hearin', the norm of e0uality may be in!oked to assert that the same kind of
opportunity must be a!ailable to others as well. ,n a sense the system, as it
functions for the small minority whose resources permit them to e(ploit all
its defensi!e possibilities, pro!ides a benchmark by which its functionin' in
all other cases is to be tested: not, perhaps, to 'uarantee literal identity but
rather to pro!ide a measure of whether the process as a whole is
reco'ni4ably of the same 'eneral order. The demands made by a norm of
this kind are likely by their !ery nature to be 0uite sweepin'. /lthou'h the
normGs imperati!es may be initially limited to determinin' whether in a
particular case the accused was in+ured or pre+udiced by his relati!e
inability to make an appropriate challen'e, the norm of e0uality !ery
0uickly mo!es to another le!el on which the demand is that the process in
'eneral be adapted to minimi4e discriminations rather than that a mere
series of post hoc determinations of discriminations be made or makeable.
,t should be obser!ed that the impact of the e0uality norm will !ary
'reatly dependin' upon the point in time at which it is introduced into a
model of the criminal process. ,f one were startin' from scratch to decide
how the process ou'ht to work, the norm of e0uality would ha!e nothin'
!ery important to say on such 0uestions as, for e(ample, whether an
accused should ha!e the e)ecti!e assistance of counsel in decidin' whether
to enter a plea of 'uilty. >ne could decide, on 0uite independent
considerations, that it is or is not a 'ood thin' to a)ord that facility to the
Two .odels of the Criminal Process
"D
'enerality of persons accused of crime. 6ut the impact of the e0uality norm
becomes far 'reater when it is brou'ht to bear on a process whose contours
ha!e already been shaped. ,f our model of the criminal process a)ords
defendants who are in a 1nancial position to do so the ri'ht to consult a
lawyer before enterin' a plea, then the e0uality norm e(erts powerful
pressure to pro!ide such an opportunity to all defendants and to re'ard the
failure to do so as a malfunctionin' of the process of whose conse0uences
the accused is entitled to be relie!ed. ,n a sense, this has been the role of
the e0uality norm in a)ectin' the real*world criminal process. ,t has made
its appearance on the scene comparati!ely late and has therefore
encountered a system in which the relati!e 1nancial inability of most
persons accused of crime results in treatment !ery di)erent from that
accorded the small minority of the 1nancially capable. =or this reason, its
impact has already been substantial and may be e(pected to be e!en more
so in the future.
There is a 1nal strand of thou'ht in the -ue Process .odel that is often
i'nored but that needs to be candidly faced if thou'ht on the sub+ect is not
to be obscured. This is a mood of skepticism about the morality and utility
of the criminal sanction, taken either as a whole or in some of its
applications. The sub+ect is a lar'e and complicated one, comprehendin' as
it does much of the intellectual history of our times. ,t is properly the
sub+ect of another essay alto'ether. To put the matter brieJy, one cannot
impro!e upon the statement by Professor Paul 6ator:
,n summary we are told that the criminal lawGs notion of +ust
condemnation and punishment is a cruel hypocrisy !isited by a smu'
society on the psycholo'ically and economically crippled2 that its
premise of a morally autonomous will with at least some measure of
choice whether to comply with the !alues e(pressed in a penal code
is unscienti1c and outmoded2 that its reliance on punishment as an
educational and deterrent a'ent is misplaced, particularly in the
case of the !ery members of society most likely to en'a'e in criminal
conduct2 and that its failure to pro!ide for indi!iduali4ed and humane
rehabilitation of o)enders is inhuman and wasteful.
"
This skepticism, which may be fairly said to be widespread amon' the most
inJuential and articulate contemporary leaders of informed opinion, leads to
an attitude toward the processes of the criminal law that, to 0uote .r. 6ator
a'ain, en'enders 7a peculiar recepti!ity toward claims of in+ustice which
arise within the traditional structure of the system itself, fundamental
disa'reement and unease about the !ery bases of the criminal law has,
ine!itably, created acute pressure at least to e(pand and liberali4e those of
its processes and doctrines which ser!e to make more tentati!e its
+ud'ments or limit its power.8 ,n short, doubts about the ends for which
Two .odels of the Criminal Process
"F
power is bein' e(ercised create pressure to limit the discretion with which
that power is e(ercised.
The point need not be pressed to the e(treme of doubts about or
re+ection of the premises upon which the criminal sanction in 'eneral rests.
nease may be stirred simply by reJection on the !ariety of uses to which
the criminal sanction is put and by a +ud'ment that an increasin'ly lar'e
proportion of those uses may represent an unwise in!ocation of so e(treme
a sanction. ,t would be an interestin' irony if doubts about the propriety of
certain uses of the criminal sanction pro!e to contribute to a restricti!e
trend in the criminal process that in the end re0uires a choice amon' uses
and. 1nally an abandonment of some of the !ery uses that stirred the
ori'inal doubts, but for a reason 0uite unrelated to those doubts.
There are two kinds of problems that need to be dealt with in any model
of the criminal process. >ne is what the rules shall be. The other is how the
rules shall be implemented. The second is at least as important as the 1rst,
as we shall see time and a'ain in our detailed de!elopment of the models.
The distincti!e di)erence between the two models is not only in the rules of
conduct that they lay down but also in the sanctions that are to be in!oked
when a claim is presented that the rules ha!e been breached and, no less
importantly, in the timin' that is permitted or re0uired for the in!ocation of
those sanctions.
/s , ha!e already su''ested, the -ue Process .odel locates at least
some of the sanctions for breach of the operati!e rules in the criminal
process itself. The relation between these two aspects of the process:the
rules and the sanctions for their breach:is a purely formal one unless there
is some mechanism for brin'in' them into play with each other. The hin'e
between them in the -ue Process .odel is the a!ailability of le'al counsel.
This has a double aspect. .any of the rules that the model re0uires are
couched in terms of the a!ailability of counsel to do !arious thin's at
!arious sta'es of the process:this is the con!entionally reco'ni4ed aspect2
beyond it, there is a per!asi!e assumption that counsel is necessary in order
to in!oke sanctions for breach of any of the rules. The more freely a!ailable
these sanctions are, the more important is the role of counsel in seein' to it
that the sanctions are appropriately in!oked. ,f the process is seen as a
series of occasions for checkin' its own operation, the role of counsel is a
much more nearly central one than is the case in a process that is seen as
primarily concerned with e(peditious determination of factual 'uilt. /nd if
e0uality of operation is a 'o!ernin' norm, the a!ailability of counsel is seen
as re0uirin' it for all. >f all the contro!erted aspects of the criminal
process, the ri'ht to counsel, includin' the role of 'o!ernment in its
pro!ision, is the most dependent on what one;s model of the process looks
like, and the least susceptible of resolution unless one has confronted the
antinomies of the two models.
, do not mean to su''est that 0uestions about the ri'ht to counsel disappear
if one adopts a model of the process that conforms more or less closely to
Two .odels of the Criminal Process
"H
the Crime Control .odel, but only that such 0uestions become absolutely
central if one;s model mo!es !ery far down the spectrum of possibilities
toward the pure -ue Process .odel. The reason for this centrality is to be
found in the assumption underlyin' both models that the process is an
ad!ersary one in which the initiati!e in in!okin' rele!ant rules rests
primarily on the parties concerned, the state, and the accused. >ne could
construct models that placed central responsibility on ad+udicati!e a'ents
such as committin' ma'istrates and trial +ud'es. /nd there are, as we shall
see, mar'inal but nonetheless important ad+ustments in the role of the
ad+udicati!e a'ents that enter into the models with which we are
concerned. =or present purposes it is enou'h to say that these ad+ustments
are mar'inal, that the animatin' presuppositions that underlie both models
in the conte(t of the /merican criminal system rele'ate the ad+udicati!e
a'ents to a relati!ely passi!e role, and therefore place central importance
on the role of counsel.
>ne last introductory note: . . . <hat assumptions do we make about the
sources of authority to shape the real*world operations of the criminal
process3 Reco'ni4in' that our models are only models, what a'encies of
'o!ernment ha!e the power to pick and choose between their competin'
demands3 >nce a'ain, the limitin' features of the /merican conte(t come
into play. >urs is not a system of le'islati!e supremacy. The distincti!ely
/merican institution of +udicial re!iew e(ercises a limitin' and ultimately a
shapin' inJuence on the criminal process. 6ecause the Crime Control
.odel is basically an a)irmati!e model, emphasi4in' at e!ery turn the
e(istence and e(ercise of o)icial power, its !alidatin' authority is ultimately
le'islati!e Aalthou'h pro(imately administrati!eB. 6ecause the -ue Process
.odel is basically a ne'ati!e model, assertin' limits on the nature of o)icial
power and on the modes of its e(ercise, its !alidatin' authority is +udicial
and re0uires an appeal to suprale'islati!e law, to the law of the
Constitution. To the e(tent that tensions between the two models are
resol!ed by deference to the -ue Process .odel, the authoritati!e force at
work is the +udicial power, workin' in the distincti!ely +udicial mode of
in!okin' the sanction of nullity. That is at once the stren'th and the
weakness of the -ue Process .odel: its stren'th because in our system the
appeal to the Constitution pro!ides the last and o!erridin' word2 its
weakness because sayin' no in speci1c cases is an e(ercise in futility unless
there is a 'eneral willin'ness on the part of the o)icials who operate the
process to apply ne'ati!e prescriptions across the board. ,t is no accident
that statements reinforcin' the -ue Process .odel come from the courts,
while at the same time facts denyin' it are established by the police and
prosecutors.
Two .odels of the Criminal Process
"$
NOTE
". Paul 6ator, 7=inality in Criminal Law and =ederal Habeas Corpus for
State Prisoners,$ Harvard %aw &eview I$ A"#$DB: FF"*FF?.
Two .odels of the Criminal Process
"I