Criminal procedure in perspective

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This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view-the police officer's or the defendant's-it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue or by the attributes of subjective and objective tests themselves. The Article then centers on the one Supreme Court opinion in this area to address the question of "subjective" objective standards, Yarborough v. Alvarado, 541 U.S. 652 (2004), where the Court intimates that a minor defendant's age might not be a relevant factor in applying the objective "reasonable suspect" test used to define custody for purposes of Miranda. The Article criticizes the Court's simplistic suggestion that considering any of a defendant's characteristics may automatically turn an objective inquiry into a subjective one, and then discusses the issue of age that the Court faced in Alvarado as well as the questions of race that pervade our criminal justice system. In the end, the Article does not advocate that the Court choose one perspective for all criminal procedure cases, or even necessarily for all cases interpreting a particular constitutional provision, but instead that the Court adopt a principled approach to the question of perspective based on the interests a particular constitutional protection is designed to further. The constitutional provisions intended to deter abusive police practices should focus on the party to be deterred, the police, and, in order to maximize their deterrent impact, ought to incorporate both subjective and objective considerations. On the other hand, the perspective that should control when interpreting constitutional doctrines whose goal is to promote voluntary decisionmaking and/or dispel coercion depends on whether one subscribes to the "consent model" or the "coercion model. " The consent model views these constitutional doctrines as preserving the defendant's right to make a free and unconstrained choice, and therefore makes the defendant's point of view dispositive. The coercion model, by contrast, suggests that the doctrines are meant to discourage the police from using improperly coercive techniques and thus, like the deterrence-based constitutional rights, ought to focus on the police. Unless the Court takes the preliminary step of articulating a consistent position on the issue of perspective for criminal procedure cases, we can continue to expect oversimplified decisions like Alvarado rather than meaningful contributions to the controversies surrounding the reasonable person standard.

Original languageEnglish (US)
Pages (from-to)71-146
Number of pages76
JournalJournal of Criminal Law and Criminology
Issue number1
StatePublished - Sep 2007

All Science Journal Classification (ASJC) codes

  • Law


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