The Devils of Due Process in Criminal Detection, Detention, and Trial

WVe recall on this occasion not only Justice Cardozo's surpassingly noble spirit and imaginative genius, but his concern that judicial decisions evince a reasoned consideration of their far-reaching consequences. We can pay no better tribute to his sense of professional responsibility than to consider together the far-reaching consequences of judicial decisions in our own day on the now crucial problems of criminal procedure. Lawyers as well as laymen often voice extreme views on the problem of crime in the catch phrases of the day, and today's vogue is to pitch them at courts. A giant problem is in no measure solved, however, by indiscriminate charges that the courts have a predilection either for coddling criminals or for depriving those suspected of crime of whatever due process is due them. We might better concern ourselves with reinforcing the words of Mr. Justice Clark: "There is no war between the Constitution and common sense."'1 Certainly there need be no war. It could break out at any time, however, unless we succeed in bringing constitutional doctrines down to earth on the homely local scenes. That may prove even more of a challenge than the launching of such doctrines, for landings often call for more skill than takeoffs. It is no secret that we have had some spectacular takeoffs in recent years. Our concern with pretrial criminal procedure has correspondingly grown in the time span encompassing the McNabb-Mallory2 doctrine on limiting prearraignment interrogation to foster prompt arraignment, the Mapp3 decision extending to states the rule excluding evidence obtained from unconstitutional searches and seizures, and the