This is Part 2 of a series on the new Stoa LD resolution: Criminal procedure should value truth-seeking over individual privacy. Be sure to check out Part 1 for some context.
Definitions can make or break your case, so it’s important to have them rooted in the literature, provide fair ground to both sides, and speak to the core of the debate. This post is going to cover definitions (just the facts–look for detailed application in the next post).
Cornell University’s Legal Information Institute (LII) states that “criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law.” Its definition gives specific application with the U.S. system and includes three different facets of criminal procedure.
Note that not all scenarios referenced include clash of truth-seeking and individual privacy; however, familiarity is going to be key, so read up! If you know all the aspects of criminal procedure, you will never face an unfamiliar argument. And again–though I am giving a substantial amount of US policy, this is not a US-centric topic. We are discussing the philosophical values that should be held highest in criminal procedure–you must justify every single doctrine. Do not presuppose justice.
ASPECTS OF CRIMINAL PROCEDURE
1. Investigatory and Accusatory Police Procedure: “A portion of the criminal procedure process deals with an officer’s ability to stop individuals, search them or their properties, and seize any incriminating evidence the officer finds” (LII, n.d.). Current limitations and procedure in the U.S. system include:
- Exclusionary Rule: “evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial” (LII, n.d.).
- Obtaining a warrant: “law enforcement must show probable cause, must support the showing by oath or affirmation, and must describe in particularity the place they will search and the items they will seize. Only a ‘neutral and detached magistrate’ may issue a warrant” (LII, n.d.).
- Exceptions for warrant requirement: “ where the search is made at or near the border; where the search follows a lawful arrest;  where stop-and-frisk is based on a reasonable suspicion;  where items that are seized were in plain view;  where items that are seized were delivered to the law enforcement by a private individual; and,  where there are exigent circumstances, such as threat to public safety or danger of loss of evidence” (LII, n.d.).
- Making defendant aware of rights: “requir[ing] law enforcement to ensure that defendants understand their right to remain silent and their right to have an attorney present during the interrogation” (LII, n.d.).
2. Pre-Trial Procedure: Procedure required before the trail (duh!). This includes:
- Right to a speedy trial (Sixth Amendment)
- Right to public trial via jury of one’s peers. Also research removal of jurors and juror selection to understand this area.
- Due Process: “Due Process further commands that defendants have the right to call their own witnesses, mount their own evidence, and present their own theory of the facts. In order to properly mount a defense, the prosecution must turn over all evidence that will be presented against the defendant and have pre-trial access to question the prosecution’s witnesses” (LII, n.d.).
- Double Jeopardy: “Prohibiting states from charging the same defendant with substantially the same crime on the same facts” (LII, n.d.).
3. Trial Procedure: “[T]he U.S. Constitution affords further rights to criminal defendants. Trying to avoid convicting an innocent defendant at all costs, the law only permits the prosecution to overcome the defendant’s presumption of innocence if they can show the defendant’s guilt beyond a reasonable doubt (LII, n.d.).” This includes:
- Fifth Amendment: Right to not provide self-incriminating testimony.
- Sixth Amendment: Right to Counsel
- Sixth Amendment: Right to cross-examine witnesses
- Attorney-Client Privilege (Italy, France, UK, etc.): Walworth, Wetzler, and Bider for the American Bar Association write that: “[In Italy, u]nder the code of criminal procedure, a lawyer cannot be compelled to give evidence of any information he or she acquires in a professional capacity, including information from attorney-client communications.”
After that information dump, what’s the conclusion? Criminal procedure governs enforcement of criminal law and includes rules concerning policing and investigation, procedure before the trial, and how the trial is run. Remember: not US-centric. Find the truth-seeking & individual privacy clash.
Key to any value resolution is the word value! Merriam-Webster states that to value something is “to rate or scale in usefulness, importance, or general worth.” Valuing X over Y means that X is more useful, important, and worth it in comparison to Y. Application truly comes in conflict.
This definition is quite self-explanatory. Merriam-Webster defines truth as “the property (as of a statement) of being in accord with fact or reality.” Truth-seeking refers to arriving at a conclusion based centrally on facts which align with reality or what actually happened.
Key Question: “If truth-seeking within criminal procedure requires violating individual privacy (to some extent), should it trump that claim to individual privacy?”
This definition could be hotly contested, because there is no universally agreed upon definition of individual privacy. I’ll jumpstart your research with some possible definitions and resources.
Merriam-Webster gives the following definition, but I would tend to stay away from these dictionary definitions and pursue a legal or field definition. “The quality or state of being apart from company or observation; freedom from unauthorized intrusion.”
An excellent article to read is the Warren and Brandeis essay defining privacy as “The Right to Be Let Alone.” It expounds tremendously on the justification and extent of privacy. I could summarize it, but you’re better off reading it.
The Fourth Amendment deals with an aspect of privacy: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Individual privacy is likely going to be defined in rounds as individuals being let alone by other actors, in home, in person, in thought, in speech, etc.
This was just the baseline of facts to understand the resolution. You’ll get into the meat of the conflict, and Affirmative and Negative Strategies, in the next part of this topic analysis. Stay tuned for more!