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The Constitution and Criminal Procedure

The Constitution and Criminal Procedure: First Principles

Akhil Reed Amar
Copyright Date: 1997
Published by: Yale University Press
Pages: 288
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  • Book Info
    The Constitution and Criminal Procedure
    Book Description:

    Under the banners of the Fourth, Fifth, and Sixth Amendments, the Supreme Court has constitutionalized a vast amount of criminal procedure law in ways that often reward the guilty while hurting the innocent. In this sweeping and provocative book, a distinguished constitutional scholar critiques these developments and reconceptualizes the basic foundations of the field.Akhil Amar examines the role of search warrants, the status of the exclusionary rule, self-incrimination theory and practice, and a host of Sixth Amendment trial-related rights. Through a close and original analysis of constitutional text, history, structure, and precedent-leavened with a healthy measure of common sense-he challenges conventional wisdom on a broad range of topics. He argues that the exclusion of reliable evidence in criminal trials is wrong in principle and in practice; unlawfully seized evidence and fruits of immunized testimony should be constitutionally admissible in criminal trials. Deterrence of government misconduct should in general occur through civil damage suits and administrative sanctions rather than through criminal exclusion.Although addressed to lawyers, judges, and law students, this bold book ultimately targets a much broader audience of policymakers and citizens who seek to understand the principles of this controversial area of constitutional law.

    eISBN: 978-0-300-14717-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
  4. 1 Fourth Amendment First Principles
    (pp. 1-45)

    The Fourth Amendment today is an embarrassment. Much of what the Supreme Court has said in the last half-century—that the amendment generally calls for warrants and probable cause for all searches and seizures, and exclusion of illegally obtained evidence—is initially plausible but ultimately misguided. As a matter of text, history, and plain old common sense, these three pillars of modern Fourth Amendment case law¹ are hard to support; in fact, today’s Supreme Court does not really support them. Except when it does. Warrants are not required—unless they are. All searches and seizures must be grounded in probable...

  5. 2 Fifth Amendment First Principles: The Self-Incrimination Clause
    (pp. 46-88)

    The self-incrimination clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule, and in the preceding four centuries the slogan had stood for at least four different ideas.¹ Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope...

  6. 3 Sixth Amendment First Principles
    (pp. 89-144)

    The Sixth Amendment is the heartland of constitutional criminal procedure, yet the legal community lacks a good map of its basic contours, a good sense of its underlying ecosystem, a good plan for its careful cultivation. Amid all the amendment’s tightly configured clauses, scholars, lawyers, and judges have often lost their way. The result, at times, has been bad constitutional law and bad criminal procedure.

    In this chapter I offer a general framework for understanding the Sixth Amendment’s first principles—for seeing how its many clauses fit together and cohere with other constitutional clauses and principles outside the amendment. To...

  7. 4 The Future of Constitutional Criminal Procedure
    (pp. 145-160)

    We live in interesting times, and the times are especially interesting for those of us who work in the field of constitutional criminal procedure. In the three preceding chapters I have sought to explore the foundations of the field—to lay bare, and elaborate upon, the “first principles” of the Fourth, Fifth, and Sixth Amendments. These chapters, in earlier incarnations, have already begun to provoke heated controversy over some of my specific doctrinal claims.¹ (As I said, we live in interesting times.) In this brief concluding chapter, I shall try to pull the camera back, highlighting some of the general...

  8. APPENDIX. Reniventing Juries: Ten Suggested Reforms
    (pp. 161-178)
  9. Notes
    (pp. 179-256)
  10. Table of Cases
    (pp. 257-265)
  11. Index of Names and Authorities
    (pp. 266-272)