The Uncertain Criminal Law: Rights, Wrongs, and Doubts

IRVING R. KAUFMAN is a Judge of the United States Court of Appeals for the Second Circuit, which includes New York, Connecticut, and Vermont.


WITH the wide growth of the mass media and the increasing tendency of the courts to concern themselves with questions touching at the very essence of our life as a free people, what once seemed the secret workings of the law have lost much of their aura of mystery for even the most casual reader of the daily newspaper. Whether dealing with racial segregation, legislative apportionment, prayers in the public schools, or the right of a defendant to counsel in a criminal prosecution, headlines informing the public of new, ‟landmark” decisions have become almost commonplace in recent years.

What is less generally known, however, is that these well-publicized landmark decisions are in a real sense merely guideposts pointing toward a virtually endless series of vexing legal questions. And while we like to think that the major cases settle matters once and for all, subsequent and lessnoted decisions can he far more troublesome. It is often more difficult to determine how far the Court should travel along a road than to decide what road should be taken.

Illustrations of this difficulty exist in all areas of the law, and especially in those most familiar to the lay public. Many found it a relatively simple matter, for example, to agree that statecompelled racial segregation in the public schools was a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. A nation founded on the proposition that all men are created equal could hardly have decided that a man’s skin should be the sole determinant of his educational or economic potential. But even alter this principle was established, it was far more difficult to determine how desegregation should be accomplished, or the validity of de facto school segregation, perpetuated not by state governments more color-bound than color-blind, but by the practical if unfortunate realities of residential patterns.

Similarly, there was substantial editorial approval of the Supreme Court’s initial decision that grossly inequitable legislative apportionment was a proper matter for judicial scrutiny. The traditional democratic ideal ol majority rule, it was argued, could not be subverted by apportionment schemes which at times appeared to give the rural voter twice the electoral strength of his urban counterpart. But when this principle was extended to render unlawful the composition of virtually every state legislature in the nation, the reaction to such an extension received as much attention as the original apportionment decision.

Through a long scries of landmark decisions, we have recently witnessed an almost revolutionary development in the area of criminal law. The institutional imperatives of federalism, which had traditionally dictated deference to the states in our system of dual sovereignty, have become subordinated to the moral imperatives of the Constitution. Within the last several years, to select but a few examples, the states have been required to provide counsel to an accused financially unable to retain his own attorney; to exclude evidence seized in a manner violative of responsible police conduct; and to keep from the jury confessions obtained under circumstances which might cast doubt upon their voluntary character.

As in so many other areas, however, these landmark decisions resolved only comparatively clearcut questions; far from concluding matters, they were merely the beginning and left much more difficult problems unsettled. And in this gray area of unresolved, less publicized issues, many new and competing considerations arise to assure the continued uncertainty and complexity that have long been occupational hazards of the art of judging. A few representative examples are in order.


The Supreme Court’s declaration that counsel must be provided for indigent defendants in state criminal prosecutions came in the case of Clarence Earl Gideon, a semiliterate, fifty-one-year-old electrician convicted of robbing a poolroom in a small Florida town. At first blush, Gideon’s seemed the simplest and most mundane of prosecutions; he had been identified at trial as having been alone in tiie poolroom, without apparent explanation, at five thirty on the morning of the robbery. No stranger to the world of criminal law — he had been convicted of four prior felonies — Gideon was compelled to conduct his own defense and was able to make scarcely a dent in what had seemed the ironclad case against him. But Gideon’s case itself, as often happens in a judicial system dealing with Hesh-and-blood personalities rather than abstract principles, strikingly illustrated the necessity for expert counsel in even the “simplest’' criminal case.

When the Supreme Court reversed his conviction for lack of counsel, Gideon was retried for the same offense, but this time with the help of a trained attorney. On his second trial, Gideon’s counsel was able not only to present an explanation for Gideon’s conduct — he had occasionally been authorized to operate the poolroom — but also to point the finger of suspicion at the prosecution’s star witness. The second time that Gideon’s case went to the jury, accordingly, he was promptly acquitted. Gideon’s guilt, which the first jury was able to find beyond a reasonable doubt when his case was presented without the aid of counsel, was, in the opinion of the second jury, to whom the defenses were developed by an experienced lawyer, not established.

The Gideon decision has been widely acclaimed and almost universally applauded. So urgently was reform needed that the attorneys general of no fewer than twenty-two states urged the Supreme Court to uphold Gideon’s insistence that an attorney’s aid at trial is a constitutional requisite. Many states had in fact tendered that aid by legislative enactment. But Gideon was merely the beginning. If I may borrow the title of Anthony Lewis’ superb book, the precise dimensions of the area in which the blast of “Gideon’s Trumpet” will be heard are yet to be determined and far more difficult to ascertain. There has been considerable speculation on three principal questions: what constitutes indigency? in what kinds of cases must counsel be appointed? and, certainly the most perplexing, how soon must the appointment be made?

As the devotees of detective fiction well know, a trial is merely the final act of the law enforcement drama. Before it may take place, the investigative process must be employed; leads must be followed, clues pursued, suspects interrogated. Ultimately, an arrest must be made, and tire accused formally charged or indicted. At which stage in these long and complex proceedings is the attorney’s entrance required? Would the logic of Gideon enable the suspect, as well as the defendant, to claim a right to counsel? Will an attorney’s guidance be required in the police station as well as in the courtroom?

These questions are not as hypothetical as might be imagined. Recently, the Supreme Court indicated that Gideon’s call will carry far indeed. In a case, Escobedo v. Illinois, which received little of the popular attention devoted to Gideon, the Court declared that where the criminal

investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution . . . and no statement elicited by the police during the interrogation may be used against him at a criminal trial.

In short, the Court seems to be telling us that the right to counsel might attach the moment the openended “investigatory process” narrows to the “accusatory process": after this point, statements of the defendant, even though voluntary, might not be admissible against him at trial if they were obtained after a request for counsel had been denied. This pronouncement, if we are construing it properly, may require substantial changes in law enforcement procedures, for our police place great importance on the answers elicited from the accused’s lips: early access to a lawyer would send confessions to their demise, a matter of grave concern to our law enforcement agencies.

But Escobedo does not end matters, and will be the progenitor of more litigation. Some will undoubtedly argue that the decision should be strictly limited to the facts of the particular case — the accused’s counsel was in the police station trying to talk to his client. Professor James Vorenberg of the Harvard Law School, in pointing out that “when we ask about [a] man’s right to counsel we are not asking one question but a whole range of questions,” suggested a series of categories: the suspect may have a lawyer and want to call him; he may not have a lawyer but may have funds to retain one if given the opportunity; or he may be indigent but would want legal advice if it were made available or he were told he was entitled to it. Professor Vorenberg suggests that the Supreme Court’s reliance on Gideon in deciding Escobedo “almost seems to be designed to serve as a warning that the limitations on interrogation before consulting counsel may apply also to the indigent defendant with no lawyer.” Moreover, no bright line separates the “investigatory” from the “accusatory process; this is a gray area in which much is yet to be determined.

ARE we moving in the direction of establishing a rule of law which requires that all police investigation and interrogation must always be conducted in the presence of the attorneys for the individual questioned? If so, this would be a radical departure from law enforcement procedures followed throughout the country. Law enforcement officials have told us that with criminal behavior on the increase and more difficult to control, any restraint on their right to interrogate would make crime detection and prevention virtually impossible. Is an adversary system, created for the formalistic world of the courtroom, suited or practicable in the far less formal arena of criminal investigation?

Recent statistics compiled by the Federal Bureau of Investigation reveal that in the first six months of 1964 the number of serious offenses known to the police in the United States increased by some 15 percent over a similar period in 1963. While the violence haunting the streets of our larger cities has often been reported, the wealthier, presumably safer suburban areas have shown even more disturbing figures. There crime has increased at a rate of 23 percent, with an 18 percent rise in the number of murders and a 34 percent increase in forcible rape cases. Against this alarming background, my brother on the United States Court of Appeals for the Second Circuit, Chief Judge J. Edward Lombard, warned that before we impose additional restrictions upon the police we should display great caution, “lest in the desire to protect individual rights, the larger and greater right of all the people to be secure in their persons and in their homes become secondary.”

It has also been emphasized that the interests protected by a requirement of counsel before trial may be quite different from those safeguarded by the Gideon decision itself. One of the oldest of AngloSaxon beliefs is that the truth, in a controverted situation, will emerge when champions for each side bring to light those facts most helpful to their particular cause. This is the rock upon which our form of criminal trial rests.

If a defendant such as Gideon is denied counsel at trial, the main prop for this form of adversary litigation is immediately removed. Forced to shift for himself, deprived of the legal, forensic, and investigatory skills of his lawyer, the defendant will generally be no match for the prosecuting attorney; he will be unable adequately to present his version of the story to the forum in which he stands. As a result, the jury will receive not a well-rounded presentation of both sides, but merely half a picture of the vital events in question. The truth-linding purpose of the trial, its raison d’être, will have been intolerably impaired.

When it is urged that the right to counsel be extended to the suspect in the police station, however, quite different interests are involved. Here it is not primarily the truth-finding nature of the law enforcement process that is at stake. Since any confessions obtained as a result of the crowbar or subtler coercive devices will be unavailable to the prosecution at trial, the police will not wish to invite the spotlight of judicial scrutiny into methods which would establish that the suspect was browbeaten into making a false admission. The voluntary nature of a confession is always a matter for court inquiry at trial, and this fact, known to all police officers, serves as a deterrent to most law enforcement lawbreakers.

Of course, the interests of the suspect undergoing questioning are not of any lesser significance than those of a defendant at trial. Nor would I suggest that the right to legal assistance before the trial commences is not of the utmost importance. Central to our Bill of Rights is the privilege of one accused of crime to remain silent in the face of police interrogation. If an attorney is not present, the danger that even the innocent suspect will provide the police with incriminating information is undoubtedly increased. So long as we pride ourselves on protecting the innocent, these considerations cannot be ignored.

But it does seem significant that just as the interests of society differ, the interests of the suspect in the police station are not precisely those of the defendant at trial. While we may speak of both cases as involving the right to counsel, the problem of accommodating the rights of the individual to those of society may well be different. In the Gideon case, the issue pitted the defendant’s interest in full disclosure and fair defense against no real corresponding value on the part of society. Certainly an ordered society would not wish to convict a defendant solely because he forfeited his case. When we move outside and beyond the courtroom, however, we must balance the individual’s right to legal guidance at the only stage when it may be crucial to him against the public interest in efficient and effective crime-detecting and lawenforcement machinery. The Gideon case, in short, was but the first, and the easiest, step in the rightto-counsel area. What was once a one-sided question has become a difficult problem of balancing. The landmark decision was simply the prelude.


The Fourth Amendment to our Constitution, protecting the right of all Americans to be secure in their homes from unreasonable searches and seizures, was patterned upon the Englishman’s right to absolute protection from official harassment. As William Pitt eloquently wrote,

the poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.

In the United States, the Fourth Amendment had for several years been construed as preventing state as well as federal oflicials from arbitrarily entering American homes, but it was not until the spring of 1961 that the Supreme Court decided, in Mapp v. Ohio, that evidence unlawfully seized by state officers would be inadmissible in state criminal prosecutions. As in Gideon’s case, the abstract question decided by the Court in Mapp was placed in sharp focus by the factual context in which it arose. From its examination of the trial record, the Court learned that seven Cleveland police officers, denied entrance to a private home when they failed to produce a search warrant, forcibly entered by prying a screen door off its hinges and by breaking the glass in the door. Once inside, they handcuffed Miss Mapp, and over her vigorous protests, proceeded to ransack her entire home, from a child’s bedroom on the second floor to a trunk stored in the basement. In the course of this indiscriminate and wholly unauthorized search, the police discovered several allegedly obscene books and pictures, for the possession of which Miss Mapp was arrested, indicted, and convicted.

Obviously shocked and repelled by the brutal and oppressive tactics of the police, the Supreme Court promptly reversed her state court conviction. Evidence obtained in this arbitrary and oppressive manner, the Court declared, could not be admitted even in a state court. Rather than condone or encourage this sort of police conduct, the Court found it preferable to allow one defendant to escape punishment, even though it appeared she had in fact possessed the obscene literature.

Mapp v. Ohio unquestionably was a landmark decision. Not only was it widely publicized and discussed, but it climaxed one of the bitterest legal battles of recent years. Lawyers, judges, and scholars have long wrestled with the problem of whether state courts should be required to exclude evidence at trial because of the repugnant manner in which it was obtained. The debate has hardly been one-sided; no less eminent a scholar than Justice Benjamin Cardozo persuasively argued that it made little sense to let a criminal go free simply because '‘the constable had blundered,”and the Supreme Court itself, in an earlier decision involving state prosecutions, had seemed to agree. Indeed, counsel in the Supreme Court failed to raise the issue in Mapp that there had been an unconstitutional search and seizure, and that therefore the evidence seized should have been excluded at the trial. Instead, he confined himself merely to arguing that the literature was not obscene. By the time Mapp v. Ohio was decided, however, most observers had concluded that the “exclusionary rule” was a constitutional necessity. It was generally agreed that the Fourth Amendment’s prohibition of unreasonable searches and seizures would offer scant protection of individual liberty until state law enforcement officials were told that the fruits of an unlawful search would be inadmissible at trial, and that any violation of this provision of the Constitution would be self-defeating.

But as we have seen in the right-to-counsel cases, this landmark decision, in which the Supreme Court reversed its own prior decision, was merely the beginning. Not all Fourth Amendment cases are characterized by the patently oppressive police conduct involved in Mapp, In many instances, the question whether given conduct actually constitutes a “search and seizure” will be far more subtle and perplexing. It is the genius of our Constitution that its terms have proved sufficiently flexible to retain vitality in situations undreamed of by the framers. Men familiar with the clipper ship and the pony express drafted language of a breadth and length that enables federal regulation of supersonic jets and communication satellites. The Fourteenth Amendment, designed to break the shackles of actual human slavery, has facilitated the destruction of far subtler bonds of social and political serfdom. In this very generality, however, inevitably lies uncertainty; the breadth which permits transforming eighteenthand nineteenth-century prose into a twentieth-century reality necessarily lacks absolute precision. Phrases such as “due process of law,” “equal protection of the laws,” and the “establishment of religion” can bear as many definitions as there are lawyers to define them. So it is also with “search and seizure.”

Perhaps the most prominent of situations in which the meaning of search and seizure is heatedly disputed is that involving wiretapping. Despite repeated opportunities, wiretapping has not yet been held to constitute a search and seizure regulable by the Fourth Amendment. Yet the interception and divulgence of telephone communications, even by state and federal law enforcement agencies, is prohibited by Act of Congress. While this may seem like an exercise in legal technicalities or semantics, the distinction between illegality and unconstitutionality is not merely one of labels, but one which carries several important consequences. Thus, for example, the Supreme Court has in the exercise of its supervisory power over the federal courts forbidden the introduction of wiretap evidence in federal criminal prosecutions, but out of deference to our dual sovereign judicial systems — federal and state — has left the states free to decide whether to admit or exclude such evidence in their own courtrooms. In addition, so long as wiretapping remains simply a statutory and not a constitutional violation, Congress is presumably free to amend or repeal the antiwiretapping statute, and thus empower federal and state officials to utilize electronic eavesdropping devices to a far greater extent than is now possible.

To many people who consider the problem and weigh the competing interests, the use of wiretapping or bugging mechanisms seems every bit as pernicious as the less subtle, break-the-door-down sort of search symbolized by the Mapp case. Orwellian visions of a police state, in which an electronic Big Brother hears and sees all, seem too vivid a danger to be dismissed as mere fiction, and these specters are invoked to argue that wiretapping should stand on no surer constitutional footing than do other, more traditional forms of police misconduct.

On the other hand, many responsible law enforcement officials have insisted that the present wholesale restrictions on wiretapping are hopelessly antiquated, and needlessly restrict the ability of government to combat organized crime operating in many states and threats to the national security. The Fourth Amendment should not be read, they argue, to prevent the use of modern methods to aid in the detection and prevention of twentiethcentury crime. Accordingly, legislation has been introduced in Congress to permit a limited, and supervised, degree of wiretapping in a carefully defined class of cases.

It is not my purpose to express any view in regard to the wisdom or constitutionality of such legislation. I merely wish to emphasize that landmark decisions are the beginning and not the end of litigation; the Mapp decision, forbidding the use of “unreasonably seized” evidence, furnishes little assistance when the meaning of Fourth Amendment language is called into question in less extreme cases. For the striking, and perhaps the crucial, aspect of the Mapp case was not the simple fact that an individual’s right to privacy had been invaded; many such police invasions occur every day, and many will continue to be tolerated as “reasonable.” It was, rather, the extent of that invasion which was determinative. Differences of degree, as well as of kind, are all-important when constitutional principles are at stake.

Thus, a suspect’s right to privacy is undoubtedly invaded when the police maintain surveillance outside his home or place of business and take notes or even motion pictures of his visitors and their actions. But no one to my knowledge has ever suggested that this familiar tactic is impermissible as a Fourth Amendment “search.” On a less innocuous plane, we know that the government will occasionally place a “mail watch” on a suspect, and although the authorities do not open his mail, they will be able to identify the senders of all incoming letters. We are told that the mail watch can be invaluable as a means of verifying beliefs that a suspected lawbreaker is not. in fact, acting alone, but is rather part of a larger conspiracy. However distasteful it may appear under certain circumstances, are we prepared to say that the mail watch so differs from more traditional forms of police surveillance as to constitute the sort of search always condemned by the Constitution?

In short, it is clear that many forms of accepted police investigatory work involve, to a greater or lesser degree, an invasion of the individual’s right to privacy. The crucial question is whether a particular means is so intolerable that it cannot be justified by any end, however desirable. But when we depart from the polar extreme of Mapp, the scale is not so easily tipped. The weights are more nearly in balance.

I should add at this point that the uncertainty over the proper meaning of search and seizure, typified by the wiretapping controversy, is hardly the only or even the most pressing problem which will remain long after the decision on the Mapp case. We must never forget that Pitt, at least it his words are applied to the Fourth Amendment, spoke in somewhat hyperbolic terms; the Constitution does not prohibit all searches and seizures, but merely those that are “unreasonable.” And in deciding whether a given search or seizure satisfies the loose criterion of “reasonableness,” we can hardly expect to be provided with all-purpose, ever-applicable standards. The infinite varieties of human experience, and the intricacies of criminal cases which possess no common characteristic other than their uniqueness, can scarcely be so easily pigeonholed.

Of course, even in this uncertain area, some things are clear. It has long been established, for example, that a search is proper, even if no warrant has been obtained, if the search is “incident to a lawful arrest.” The police officer who apprehends a dangerous felon need not trust to luck that his prisoner is unarmed; he is fully justified in searching for a concealed weapon or evidence which might easily be destroyed. Yet this standard, in most cases, merely pushes the quest for “reasonableness” back one step. For the lawbooks reveal that, again in the absence of a warrant, an arrest is “lawful” only if there are “reasonable” grounds therefor.

Recently the state of New York enacted a statute which permits the police to conduct limited searches, even in the absence of an arrest. Known popularly as the “stop-and-frisk law,” the new statute empowers a police officer to stop any person “abroad in a public place” who he “reasonably suspects is committing, has committed or is about to commit” certain criminal violations, and to “demand of him his name, address and an explanation of his actions.” If the officer “reasonably suspects” that he is in danger of suffering serious injury, he is also authorized, under the law, to “frisk” the suspect for a dangerous weapon.

Despite the repeated appeal to a test of reasonableness required by the statutory language, it has already been argued that the new law is unconstitutional on its face, and that any search unauthorized by a warrant or unaccompanied by and prior to an arrest is “unreasonable” within the meaning of the Fourth Amendment. Many charge that the statute is an invitation to police harassment, and some have even likened it to the infamous requirement of a “permit” or “license” necessary before totalitarian regimes will allow specific classes of citizens to walk the streets.

When the issue of constitutionality is ultimately decided, when it is finally determined whether a “stop-and-frisk” is, indeed, a “reasonable” search, the balancing already familiar in wiretapping and right-to-counsel cases will take place. Mindful of the possible abuses, we will have to decide whether the inconvenience of occasional police questioning is too great a price to pay for the measure of additional safety on our streets or in our homes which the sponsors of the new statute tell us it will bring.

Some have argued that the new statute will provide the flexibility denied police under prior law and enable them to combat crime without unduly impinging upon the civil liberties of the individual. They urge that the “reasonable suspicion” which justifies detention and interrogation under the statute may prove a less rigorous standard than the “probable cause” customarily necessary for arrest. Harvard’s Professor Vorenberg recently explained the sort of case in which the new statute might be used.

In the early morning hours an officer sees a shabbily dressed man hustling out of an alley behind a store carrying an odd-looking satchel. Or he hears a scream and sees a man run out of a doorway. In a neighborhood where a burglary has been reported a man with his hat over his eyes turns and runs the other way when he sees a police car. What is the officer to do? Common sense or an informed instinct tells him that there is a pretty good chance that if he could stop the man and ask him a few questions — perhaps frisk him — he would solve a crime. Yet it is doubtful that in any of these cases he has in either the technical or general use of the phrase “probable cause” to make an arrest.

Professor Vorenberg urges that the new law be interpreted to require the officer promptly to release an uncooperative suspect, a view which would minimize the statute’s infringement of the individual’s rights. The courts will have to decide, on a case-by-case basis, whether the invasions of privacy permitted by the New York law are so acute as to outweigh the protection to society it is intended to provide.


Whenever I am told that a landmark criminal case has settled matters once and for all, I am reminded of the gentleman of the 1850s who suggested that the government close the Patent Office because “nothing was left to be invented.” In law, just as in the arts and sciences, there can never be such absolute finality; problems wall always exist, difficult distinctions will have to be drawn, subtle issues will always remain to be decided. Indeed, courts will change their minds and reverse themselves on issues long ago decided.

As a result, it seems vital that the public maintain its interest in and awareness of our developing criminal law even after the headlines have died down and the landmark decisions have been rendered. For as I have attempted to explain, the issues which are sometimes thought simply to trail in the wake of the landmark cases may not be so lightly dismissed. Rarely arising as clear-cut confrontations between good and evil, they call for a subtle and judicious balancing, for an often painstaking selection between competing goods or competing evils. The very notoriety which attends the landmark case is often attributable, as in Gideon, to the one-sidedness of the issue at stake; a case becomes a cause when stark injustice to the individual is accompanied by no corresponding social benefit. The problems remaining after this glaring inequity has been remedied, however, precisely because they are so much more subtle and perplexing, are those most deserving of the attention not only of the lawyer but of the public as well.

Those who seek easy or simplistic panaceas will be sadly disappointed. Just as police work cannot be equated to totalitarian oppression, devotion to constitutional principles is not equivalent to softness on crime. As a recent report pointedly noted, “the proudest traditions of common-law criminal procedure hamper efficiency to some extent — because we wish to protect the innocent as well as convict the guilty, and because we wish to treat all prisoners, innocent or guilty, in ways that fit in with the kind of society we want.”

I should add one final note of caution: not all the difficult problems that arise in the area of criminal law are constitutional in nature. We should recognize that it is not the role of the courts to pass on the wisdom of legislation, as opposed to the power of the legislature to enact it. The Constitution has been interpreted as incorporating certain of the more indisputable indicia of civilized society, but legislatures can do, and will continue to do, at each session at least some things that some judges will consider unwise. If lack of wisdom were ground for nullification, we would need not only, in a political sense, a different society; we would also need, in a practical sense, wiser judges. The world being what it is, and the limitations of men — even those wielding gavels —being what they are, the public has an important responsibility, acting through its elected representatives, to share the burden in shaping the rules of criminal procedure by which our civilization will be judged.