The State and the Accused: Balance of Advantage in Criminal Procedure

THE principal objective of criminal procedure, like that of procedure generally, is to assure a just disposition of the dispute before the court.But because time, resources and the ability to determine what is just are limited, a procedural system inevitably represents a series of compromises.Justice to society is sometimes taken to require that a given case be used not only to deal with the situation immediately before the court but also to serve a larger public interest.In criminal cases, the accused may get relief, not so much out of concern for him or for the "truth," but because he is strategically located, and motivated, to call the attention of the courts to excesses in the administration of criminal justice.'The underlying premise is that of a social utilitarianism.If the criminal goes free in order to serve a larger and more important end, then social justice is done, even if individual justice is not.For example, if the police beat an offender in order to extract a confession, the social interest is held to require that the confession be excluded from evidence, even if amply corroborated.The same is true, in varying ex\'tents in the several states, when evidence is illegally seized, or telephones "tapped," or counsel denied, or jurors selected improperly, or judges biased. 2 In each of these cases, terminating the proceeding against the accused, regardless of his guilt or innocence, shifts the focus of deterrence from the accused to his prosecutors.Though this idealized conception of procedure, as a means of shaping institutions involved in the administration of substantive law, has a place in civil cases as well as in criminal, it shows up most dearly and dramatically in the criminal cases.The reasons are several: the threat of imprisonment makes the criminal sanction an especially grave and terrifying one; an in-,herited tradition, reflected in constitutional law, makes more specific requirements for criminal cases than it does for civil ;3 there is a general feeling that tAssociate Professor of Law, Yale Law School.I am grateful to a number of students, present and former, for research assistance, particularly to Ira Grudberg of this year's graduating class and Eugene Lenoir, 1958 L, now a member of the New York bar.1. Compare Associated Indus.v. Ickes, 134 F.2d 694, 705 (2d Cir.