America's Unwritten Constitution: The Precedents and Principles We Live By (20 page)

Symmetry can indeed be seen as an implicit element of the Constitution’s criminal-procedure provisions. For example, the defendant’s Sixth Amendment right of compulsory process generally entitles him to the same subpoena power enjoyed by the prosecutor—a pure symmetry rule. The prosecutor may typically confront defense witnesses, and the defendant is symmetrically entitled under the Sixth Amendment to confront prosecution witnesses. When the jury convicts the defendant, the prosecutor gets to keep the win and need not retry the case; symmetrically, the Fifth Amendment double-jeopardy clause entitles the defendant to keep the win if the jury acquits.
¹⁹

Symmetry can also help explain and justify the Court’s celebrated twentieth-century recognition that an indigent felony defendant is entitled to an attorney at government expense. Since the government pays for its own counsel (i.e., the prosecutor), it must symmetrically finance counsel for the defendant if he so requests. However, Founding-era practice fell short of this standard. The First Congress—the same Congress that drafted the Bill of Rights—provided appointed counsel to all capital defendants, but relegated other defendants to a different version of the symmetry principle: The judge—a government-paid official—was supposed to provide legal advice to any unrepresented defendant who requested assistance.
²⁰

As the years passed and the American adversarial system took firm hold, it became increasingly clear that this quaint judge-as-counsel model was unworkable. A judge could not both properly umpire the game and effectively coach the defense team. In a 1938 case captioned
Johnson v. Zerbst
, the Court read the Sixth Amendment clause entitling federal criminal
defendants to “the Assistance of Counsel” to include, by implication, a right to a government-provided lawyer. A quarter-century later, the Warren Court, in the landmark case of
Gideon v. Wainwright
, held that the Fourteenth Amendment guaranteed state criminal defendants the same basic rights as federal criminal defendants, including the right to government-paid counsel.

By the time
Gideon
famously declared the right to appointed counsel for all felony defendants, this right was already settled practice in every federal court as well as in forty-five of the states encompassing roughly 90 percent of the national population. (Even in the five outlying states, appointed counsel was made available to all capital defendants and to various defendants in noncapital cases of special complexity, and in some states to all defendants in certain cities and counties.) In short, a basic right to appointed counsel was already part of the fabric of America’s lived Constitution. Of the twenty-five states that filed or signed onto legal briefs in the
Gideon
case, twenty-two sided with the indigent defendant, as the
Gideon
Court proudly noted.
²¹

The shift from Founding-era-style symmetry to
Gideon
-style symmetry suggests that the symmetry idea, without more, is not an entirely self-defining concept—and that the specific shape that the symmetry principle has taken in Supreme Court case law over the years has reflected evolving lived customs and popular understandings. Even today,
Gideon
and its progeny do not oblige government to finance both prosecutors and public defenders equally; nor does this line of cases entitle defendants to government subsidies for defense-team private investigators remotely comparable to governmental expenditures for the prosecutor’s investigatory team—a.k.a. the police.

As important as the symmetry principle is in various contexts, it does not exhaust all the rights, enumerated and unenumerated, that a criminal defendant may properly claim. Both at the Founding and today, the prosecutor may not oblige the defendant to take the stand. Under one reading of symmetry, there would be nothing wrong with a rule likewise disabling the defendant from putting himself on the stand. This was indeed Founding-era practice. But as we have seen, current law gives the defendant more than mere symmetry. Only the defense can call the defendant to the stand.

Even more flamboyantly asymmetric, and more illustrative of first principles, is the rule—applicable in every criminal court in America, state and federal—that the prosecution must bear the burden of proof and indeed must prove the case against the defendant beyond reasonable doubt. If it is equally likely that the defendant is innocent or guilty, the trier of fact must acquit. Imagine a case where it is absolutely certain that one of two identical twins did the deed, but it is utterly uncertain which one. Neither may be convicted, because America’s Constitution is premised on the asymmetric idea that it is better to let a guilty man walk free than to convict an innocent man.

Perhaps Blackstone overstated when he exuberantly proclaimed in his
Commentaries
that it was “better that
ten
guilty persons escape, than that
one
innocent suffer.” But today almost no one believes that the Court overstated or overreached when it made clear in a celebrated 1970 case,
In re Winship
, that the Constitution recognized the right of every criminal defendant, state or federal, to be acquitted in the absence of “proof beyond a reasonable doubt” of his guilt. The
Winship
Court cited opinions stretching back into the nineteenth century clearly foreshadowing its holding, and also stressed that its ruling codified the lived Constitution of American practice. In the Court’s words, the reasonable-doubt standard has played “a vital role in the American scheme of criminal procedure,” commanding “virtually unanimous adherence” in both state and federal courts, and forming part of the “historically grounded rights of our system.” Yet the
Winship
Court also candidly acknowledged that the crystallization of the specific verbal formula “beyond a reasonable doubt” did not occur in America until 1798—that is, a decade
after
the ratification of the original Constitution and seven years
after
the adoption of the Ninth Amendment.
Winship
thus provides yet another example of an uncontroversial, unenumerated, post-Founding fundamental right.
²²

Winship
also provides a decisive rebuttal to our hypothetical prosecutor’s claim that a defendant can be barred from introducing evidence establishing his innocence simply because the prosecution is sometimes barred from introducing decisive evidence proving his guilt. The fact that the guilty sometimes go unpunished is hardly an acceptable reason for punishing the innocent instead. As
Winship
makes clear, the first principles of the entire
criminal-justice system aim to make it highly unlikely that an innocent man will suffer erroneous conviction.

Not only does our hypothetical prosecutor dishonor these first principles, but he also errs in trying to extend a dubious doctrine, the so-called “exclusionary rule.” Under this doctrine, the modern Supreme Court has routinely prevented prosecutors from introducing reliable evidence of guilt if such evidence was obtained in an unconstitutional search or seizure. Although the Court has promulgated this rule in the name of the Constitution, nothing in the document’s letter or spirit says or implies anything like the exclusionary rule; no Founder ever embraced anything of the sort; and for the first century after the Declaration of Independence, no court in America, state or federal, ever practiced or preached any type of exclusionary rule. Reliable physical evidence invariably came into court, with no questions asked about whether the police had behaved properly in acquiring this evidence. As one mid-nineteenth-century English court bluntly said, summarizing the traditional Anglo-American rule, “it matters not how you get it; if you steal it even, it would be admissible in evidence.”
²³

Unlike the Court’s rulings in
Winship, Gideon
, and several other twentieth-century criminal-procedure cases that we have just surveyed, the modern exclusionary rule draws no strength from the deeply rooted American ideal of protecting innocent defendants from erroneous convictions. Instead, the rule perversely benefits the guilty as such. The guiltier a person turns out to be—the bigger the pile of reliable evidence the police find in the search—the bigger the windfall to the defendant when the evidence is tossed out.
²⁴

If a search target is innocent, the police find no incriminating evidence and so there is nothing to exclude—which means that the rule does nothing to deter the police from harassing a person whom they know to be innocent. Were the exclusionary rule the only legal remedy, it would be open season on the innocent. Fortunately, the rule is not the only available remedy; other remedies exist to protect the innocent from abusive searches and seizures, and many of these remedies have strong roots in Founding practices and principles. But once these remedies are properly in place, there is little need for an exclusionary rule whose incremental effect is to benefit
only
guilty persons.

Suppression of reliable evidence was a rare practice in America before 1914, when the Supreme Court, in
Weeks v. United States
, read the exclusionary rule into the Constitution as a limit on the federal government (but not states). Prior to
Weeks
, only one state (Iowa) was on record supporting the basic doctrine of exclusion. After
Weeks
, some states—via legislation, or, more typically, state court reinterpretation of state bills of rights—began to embrace the exclusionary rule to rein in errant state officials. Other states, however, continued to strongly resist the idea that probative evidence should be suppressed—an idea that seemed particularly troubling in cases involving violent crimes such as murder, rape, and robbery. (
Weeks
, by contrast, had involved a rather less scary criminal, whose offense had been sending illegal lottery tickets through the U.S. mail.)
²⁵

The decisive moment in the history of the exclusionary rule occurred in 1961, when a bare majority of the Court in
Mapp v. Ohio
decided to impose the exclusionary rule on all fifty states. On the eve of
Mapp
—a case in which police officers had entered a house looking for a bombing fugitive but ended up finding only pornography—twenty-four states rejected the entire concept of exclusion and four others practiced only limited exclusion. Altogether, these twenty-eight states accounted for roughly 55 percent of the nation’s population. Unlike
Gideon, Winship
, and the right-to-testify cases,
Mapp
did not merely codify a preexisting national consensus. In other words,
Mapp
had no deep roots in America’s lived Constitution—or in America’s explicit or implicit Constitution, for that matter.
²⁶

Even today, nearly a century after
Weeks
and more than a half-century after
Mapp
, the exclusionary rule remains controversial in many circles, with critics on the bench, in Congress, in the Justice Department, in state houses and governors’ offices, in the legal academy, on the airwaves, and throughout American culture more generally. Thus the real question is not whether the exclusionary rule should be expanded to punish innocent persons such as our hypothetical defendant, but whether the rule should be drastically narrowed, having never won the broad and deep support of the American people—having never, in short, achieved true
popularity
.

Later, we shall probe the exclusionary rule in more detail. For now, it suffices to say that even with the exclusionary rule in full effect, our hypothetical prosecutor’s proposal to extend the rule against defendants cannot
stand. Recall that at the Founding, reliable physical evidence was universally admissible; criminal defendants had an absolute right (and prosecutors likewise had unfettered power) to introduce reliable physical evidence, even if the evidence had been acquired improperly. Although the modern exclusionary rule has stripped prosecutors of their power to introduce improperly acquired evidence, defendants have not thereby forfeited their ancient rights. A defendant’s entitlement to show that he is innocent of all the charges the government has trumped up against him is surely one of the basic, albeit unenumerated, rights that has always been retained by the people under the Ninth Amendment and is likewise protected as a core privilege or immunity under the Fourteenth Amendment. Various new unenumerated rights are one thing—a perfectly proper thing, thanks in part to these two amendments. But new limits on ancient rights are something very different, something that the Ninth and Fourteenth Amendments, rightly read, do not support.

THE BIG LESSON IN
our wide-ranging story thus far is that unenumerated rights have bloomed profusely and may properly continue to bloom even in a domain—constitutional criminal procedure—where the written Constitution lays down what might seem to the untrained eye to be an exclusive grid of specific rules. In this domain, explicit texts and implicit rights have blended together with lived rights, creating results sure to surprise the blinkered literalist. In sum, a document whose text says merely that a criminal defendant cannot be compelled to testify now also entitles him to take the stand if he wishes; the government must provide defense lawyers to all indigent felony defendants even though the Founders neither clearly enumerated nor fully established this right; prosecutors must prove guilt “beyond reasonable doubt,” a phrase that postdates the Bill of Rights; defendants must be allowed to present physical evidence, notwithstanding the fact that the text says nothing about this; and, above all, government must honor the values of truth and innocence, words that nowhere appear in America’s written Constitution.
²⁷

LIVED RIGHTS ALSO BLOSSOM IN
domains where the document speaks with much less specificity. Such rights have been particularly important in a quadrant of case law that lawyers and judges refer to under the curious label “substantive due process.”