A. Introduction: The Perils of a Double-Duty System of Law Enforcement under the Adversarial System
Much of the stress facing the police in the United States comes from the pressure of its ever-mounting responsibilities. The police are charged with maintaining order, enforcing the law, collecting evidence, and investigating crimes when violations of the law have occurred. Most American law enforcement officials are at the disposition of local authorities, who are responsible for properly training them in constitutional law, and the legal procedures that must be followed to avoid due process violations. This training is essential to prevent the order-maintaining function from interfering with the evidence-gathering function, a breach that can lead to police misconduct and racial profiling.
A possible solution would be to physically separate these two functions, following the French model of maintaining administrative and judicial police forces. Though this separation is not always absolute, the principle works to ensure that only those officers with a few years of law enforcement experience will have the capability to seize evidence, initiate the garde vue, and perform other invasive investigatory functions. Such a principle might be easily imported or modified in America.
Those commentators who favor the continental inquisitorial system have long advocated such a shift. In his book criticizing the American criminal justice system, Lloyd Weinreb proposes the adoption of several continental- style reforms. He notes the inherent difficulty in asking law enforcement officials to respect the intricacies of the criminal process when their primary responsibility is to act decisively to maintain order in dangerous circumstances: "We cannot expect [the police] to act in dangerous, violent, unpredictable, and uncertain circumstances with the minimum of harm to themselves or others and also to act judiciously, with discretion, and mindful of conflicting interests [between the state and the accused]."
In sum, Weinreb argues, the police's peacekeeping function is perpetually at odds with the criminal justice system's guarantee of due process. The police must both stop crime and arrest the people responsible for those crimes. To a certain extent this is unavoidable, and often even desirable. For example, police are often best situated to collect evidence in so-called "emergencies," and the Supreme Court has repeatedly afforded them the capability to do so. Suppose a police officer arrives at the scene of a bank robbery and apprehends a person believed responsible for the robbery. The officer has now performed his peacekeeping duties, but his responsibility does not end there. He must now, with the aid of his fellow officers, collect evidence and question suspects, usually subject only to the oversight of his immediate superiors. The combined pressures of preventing crime and scrupulously following procedure to ensure that individual constitutional rights are not violated results in an overburdened police force that may be ineffective in suborning its law enforcement role to demands of criminal process.
To prevent the police from allowing its peacekeeping function to inhibit or pollute the operation of justice, the Supreme Court has issued constitutional rulings to guide police conduct. These decisions maintain the balance between having an efficient, effective peacekeeping force on the one hand, and a respect for civil liberties on the other. Despite these rulings, official abuses and due process violations inevitably occur, and the recent trend has been to interpret the Fourth Amendment in such a way that a violation does not lead to an exclusion of evidence at trial. These reversals suggest that a regimen of judicially enforced rules may not be the best way to combat police misconduct. In light of the Court's more conservative climate, any effort to extend rules to hamstring police effectiveness will likely result in an adverse reaction leading to further erosion of due process protections.
Weinreb proposes a system in which the peacekeeping and criminal process functions are split among separate agencies. In particular, he proposes that a judicial officer, not unlike that found in the French system, be charged with clerical tasks like booking and fingerprinting, as well as investigative tasks like lineups and witness questioning. Weinreb argues that the state should minimize the individual's contact with the police force, which he considers the agency that, more than any other, represents "the physical power of the state." According to Weinreb, the exertion of physical power on the part of the state has the potential to corrupt the outcome of the criminal process. This is a view shared by many international jurisdictions that apply the inquisitorial system. Such a system would presumably rely less upon exclusionary rules and other judicial remedies designed to curb constitutional abuse by placing control at the hands of administrators specially trained in the trade of evidence gathering.
Assuming this separation of enforcement and investigating powers would cause a decrease in racial profiling and other forms of police misconduct, a profound shift in people's trust and confidence in police could result. This change might cause the most significant psychological impact on minority communities. A key element of this separation is the detachment of the examining magistrate from law enforcement. In the American system, the magistrate often becomes little more than a rubber stamp for the police, signing on to warrants when requested without much thought. But an independent magistracy according to the French model is of a different conceptual character: a neutral party charged with searching for the truth.
Of course, accepting continental-style reforms requires that policymakers choose between the virtues of an adversarial system versus those of an inquisitorial one. Rudolph Schlesinger, an advocate of the inquisitorial system, pitches the debate in terms of "truth-seeking" versus "truth-defeating" rules. He cites examples of truth-defeating rules, including exclusionary rules and the rule prohibiting the drawing of natural inferences from the silence of the accused. Schlesinger then urges a reexamination of those rules in light of the benefits they provide at the expense of truthfulness.
Schlesinger's discussion of truth-defeating rules provides an excellent crossroads for this analysis in Part III. A discussion of the merits of the exclusionary rule naturally leads into a discussion of rules and their impact on police misconduct. Accordingly, the first subsection will examine the benefits of adopting a truth-seeking rule, the first step of which would be to vest much of the police's investigatory power into a independent magistracy and judicial police. The second subsection will address the truth-defeating rule in Griffin, and examine how its abolishment coupled with the adoption of inquisitorial mode of evidence gathering and witness questioning might have positive ramifications for the problem of racial profiling.
