Grounding Criminal Procedure

33 Pages Posted: 27 Mar 2017

See all articles by Catherine M. Grosso

Catherine M. Grosso

Michigan State University College of Law

Barbara O'Brien

Michigan State University - College of Law

Date Written: March 21, 2017

Abstract

The tense relationship between citizens and police has made an unbroken appearance on national news in the second decade of the 21st Century. Citizens and communities see the insidious power of racism in our criminal justice system in sharper focus. Activists seek consequences for perpetrators. Government leaders revisit police department practices with an eye to reform.

This article demonstrates that lawyers’ shared understanding of police investigation practices arises from winnowed subset of published case law layered over a well-established set of U.S. Supreme Court opinions in which a guilty person in a race-less arena is charged with a felony and seeks to exclude incriminating evidence. A study of commonly used casebooks and one year of published opinions presents a picture of policing that is largely unmoored from reality. That picture is one in which police are professional, uncannily intuitive about criminal wrongdoing, and colorblind. Police sometimes get wrong the complicated law governing them, but their motives and assessment of the facts are rarely in question. They act primarily out of concern for public safety and to catch perpetrators of serious felonies rather than in response to bureaucratic incentives. Those challenging their actions are indisputably guilty not only of a crime, but a serious one. They are often caught because officers’ expertise allows them to detect crime from cues that would seem unremarkable to a lay person. And of course, race plays no role in shaping police officers’ decision making or citizens’ responses to them, and thus warrants little if any discussion in assessing the legitimacy of their actions.

A different story emerges from research on how police actually behave. Investigation often yields nothing incriminating, and when it does, the crimes at issue are usually minor. Police departments commonly measure officers’ productivity not by compliance with the law or accuracy in detecting crime, but by the number of stops made and citations issued. Significant disparities in who arouses officers’ suspicions suggest that race indeed affects their decision making. That story is often only peripherally addressed in criminal procedure pedagogy, and is largely absent from the published cases that shape the law going forward. This article compares constitutional criminal procedure as taught with how it is practiced to argue for the need to ground the law governing police investigations in the lived experience of being policed, and to suggest points of focus for government reform initiatives.

Keywords: Criminal Procedure, Policing, Criminal Law, and Teaching Law

Suggested Citation

Grosso, Catherine M. and O'Brien, Barbara, Grounding Criminal Procedure (March 21, 2017). Journal of Gender, Race and Justice, Vol. 20, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=2938695

Catherine M. Grosso (Contact Author)

Michigan State University College of Law ( email )

Law College Building
648 N. Shaw Lane, Office 417
East Lansing, MI 48824-1300
United States

Barbara O'Brien

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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