2 Models of Criminal Procedure

Ms. Sree Parvathy G.

Introduction:

Models of criminal procedure present a convenient way to talk about the values underlying Criminal Justice Administration. The values may be observable in the statutory procedural rules, and decisions made by police officials, prosecutors or judges. Decisions of each of these actors represent their inclination towards a particular model of Criminal Procedure. There have been numerous attempts to conceptualise the streams of value systems that underlie such rules and decisions.1 The models enunciated by Herbert Packer in his classic book, “Limits of the Criminal Sanction” (Stanford University Press, 1968) are widely accepted.2 According to Packer there are two models of criminal justice – Crime Control Model and Due Process Model, which are not to be taken in terms of ‘Is’ and ‘Ought’; but they represent an attempt to abstract two separate value systems that compete for priority in the operation of criminal process. Crime Control Models emphasises the values of greater efficiency and regulation of criminal behaviour whereas the Due Process Model aspires for credibility of the system.

Before proceeding to analyse the models in some detail it would be worthwhile to mention that these models are not working models, in the sense that it would be impossible to identify a purely crime control model or a due process model in the real word. Rather, they are polarities placed in the two extremities of a spectrum, each representing a set of values. Elements of both models may be present in the rules made by a system or the decisions made by the law enforcers.

Common features:

Though poles apart in most of the values, both the systems do share some common features.

However the relative importance given to each of these values may differ.

The following are the values they share-

2.1 Ex post facto clause

The limitation in criminal law that a particular conduct must be defined as a crime prior to identifying and dealing persons as criminals. In other words no conduct can be criminalized after the act has been committed.

2.2 Limits on discretionary powers of the police/prosecution

When a conduct has been defined to be a crime by the legislature, the participants in the criminal process are under a duty to treat it as a crime. This acts as a limitation on the discretionary powers of the police and the prosecutor. They have to just perform their roles when it appears that a crime has been committed.

2.3 Limits on state power vis-à-vis individual privacy and security

It is accepted that there are limitations on the powers of the government to investigate and apprehend persons suspected of committing crimes. For instance, an individual cannot be taken and kept in custody as long as the investigating officer desires. There is some degree of control and scrutiny of such actions of the government having regard to the privacy and security of the individual.

2.4 Procedural due process

The last element is based on the assumption that the individual alleged to be a criminal is an active agent in the process and his guilt must be demonstrated before an independent authority. In other words, it is the acceptance that criminal process is a contest between two independent actors i.e the accused and the prosecution. Though the relative importance of this contest in the criminal justice process varies, both the systems tend to accept the potentiality of the process becoming an adversarial struggle.

3. Crime Control Model:

Crime control model as the name suggests emphasises on prevention and control of crime through prosecution and punishment of criminals. It believes that the interest of the public can be better served by reducing the number of crimes by generating fear of efficient prosecution and punishment. This may at times result in disregard of the interest of those who are suspected of criminal charges. The essence of the Crime control model has been summarised by one author in the following words, “….. Crime control model or bureaucratic model emphasises efficiency, finality and preservation of order. It proceeds with an official presumption that an individual charged with an offence is possibly guilty of it or some other offence. This model finds connection between rate of convictions and domestic tranquillity and general welfare.”

The characters of the crime control model may be analysed as follows-

3.1 Repression of criminal conduct is the most important function to be performed by the criminal process

The basic proposition of the crime control model is that repression of crime is the most important function of criminal process. Failure to enforce law (high percentage of failure to apprehend and convict) will lead to general disregard of legal controls. This will be adverse to public interest as a law abiding citizen will lose his security of person and property.

As repression of crime will lead to individual security in society, the crime control model postulates criminal process as a guarantor of human freedom. This takes as to the next level of analyzing how the model intends to achieve this purpose.

3.2 Efficiency, Speed and Finality

According to the model, the criminal process could become the guarantor of human freedom by increasing the ‘efficiency’ of the system. Efficiency means the system’s capacity to apprehend, try, convict and dispose of a high proportion of criminal offenders whose offences become known. Therefore the system considers high rates of apprehension and conviction a virtue.

Two other important characteristics of this model are speed and finality. Speed depends on informality and uniformity. Unnecessary procedures having potential to delay the process must be avoided. For instance, facts established by police interrogation must be accepted than insisting on formal fact-finding through cross-examination in the court. Extra judicial processes should be preferred to judicial ones. And uniformity of the process means that each agent has his routine duty to perform and this will ensure that a large number of cases are handled within a limited time.

Herbert Packer calls it a system of “assembly line justice” because it reminds of “an assembly-line conveyor belt down which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product..” Thus it is a system where cases move from one stage to another swiftly without much hindrance.

In order to achieve this the models considers the following to be important-

I. Early screening out of those who are probably innocent and expeditious conviction of the rest.

II. Facts can be established informally. Facts established by administrative agencies (as opposed to judicial agency) are reliable indicators of guilt.

There shall be minimal opportunities for challenge of convictions rendered.

3.3 An affirmative model

Packer calls the Crime control model an affirmative model because it emphasises, at every stage the existence and exercise of official power. The validating authority of such administrative power is only legislative meaning that if there is a legislative enactment authorising the exercise of such power, the action is valid. This is contrary to what the due process model postulates. Under a due process model the action in order to be valid must pass through judicial scrutiny, which will test the judicial power to the demands of a supra-legislative law i.e. the Constitution.

4. Due Process Model:

According to Blumberg, under the Due process model the justice system seeks to develop social, legal and organisational structure, which will filter out law violators and also provide an avenue of personal freedom to those who are innocent or casual law breakers. The guilt of the person must be established by an impartial tribunal after public hearing giving due respect to individual rights. Unlike the crime control model, the due process model prefers reliability over efficiency. It is always sceptical about the possibility of error and an innocent accused getting convicted. Therefore the values of the model are presumption of innocence, protection of individual liberties, exclusion of coercion, judicial check over executive actions and further scrutiny to rule out the possibility of error.

The characteristics of the Due Process Model may be summarised under the following heads-

4.1 The most important function of criminal process is ensuring procedural fairness

Ensuring fairness to the accused and avoiding error to the maximum extent possible are the main considerations of the due process model. It recognises efficiency as a desirable characteristic, but it is desirable only when it is complementary to reliability. Reliability cannot be sacrificed for the purpose of efficiency. So at every stage of the proceeding procedural formalities are strictly adhered to avoid any possible violation of individual rights or any error in fact finding.

4.2 Fact finding process

The due process model rejects the informal and non-adjudicative fact-finding of the crime control model and instead advocates for a formal and adjudicatory fact finding. When facts are allowed to be established informally there is a possibility of the police coercing the accused physically or psychologically to establish what may be far from the truth. Similarly witness may be influenced and in the absence of an impartial tribunal where the accused has the opportunity to cross examine the witnesess and the evidences against him, the innocent may be punished. Therefore the Due Process model insists on a formal, adjudicative and adversary fact-finding process. The fact-finding process under the due process will have the following characteristics-

a. Public hearing

b. An impartial tribunal

c. Full opportunity to the accused to discredit the case against him

d. Further scrutiny to avoid possible error

4.3 Reliability

Due process model gives more weightage to reliability than efficiency. It believes in eliminating error to the extent possible. Therefore effort is taken at every stage to make sure that no error goes unnoticed and an innocent is harmed. This insistence of the model on reliability has made it an “obstacle course” often resulting in the process getting delayed at every stage. The following characteristics may be observed in such a model-

4.3.1 Police powers are limited

As the Due Process model believes that the combination of stigma and loss of personal liberty is the heaviest deprivation that the state can inflict on an individual; it is sceptical about how police power is exercised by the state. Therefore constant monitoring is required to check official oppression of individual liberty. For instance, understanding the social stigma associated with a person being arrested by the police, the model may mandate that arrests resulting in loss of personal liberty must only be made after cogent evidence is gathered especially when the crime in question is less serious.

4.3.2 Proof of legal guilt

Due process model does not believe in factual probability of guilty. It does not deem a person to be guilty even if the informally established facts show in all probability he has committed the alleged crime. It starts on the premise of presumption of innocence and mandates that the guilt of the accused must be proved having regard to all procedural safeguards including jurisdiction of the tribunal, double jeopardy etc. Thus, a crime committed by a person in front of a large crowd may go unpunished if the witnesses refuse to depose against him. The essentiality of proving a person to be legally guilty is quite different from the public knowledge that he has committed the act.

4.3.3 Correction of system’s abuses

The Due process model considers the process the appropriate venue for correction of its own abuses. Unlike the crime control model, it does not stop just be lying down rules to check abuses, but goes ahead to correct them. For example, both the models have rules against illegal arrest, unreasonable searches and coercive interrogations. However, the due process model goes a step ahead and rejects all evidence obtained or through reversal of convictions in cases where the criminal process has breached the rules laid down. It may also order the state to compensate the accused for his loss of liberty and image.

4.3.4  Equal justice

The model takes in to account the gross inequalities in the available resources of the defendants in a criminal case and in a large number of cases the accused is incapable of putting up an effective defence due to lack of resources. Therefore the system makes it a public function to make sure that the respondent has adequate resources including financial resources, so that the trial becomes. Thus the model recognizes the possibility of socio-economic and political factors influencing the final outcome of the state and makes a cautious approach.

4.4 Negative model

Unlike the crime control model which emphasizes on official power for effective working of the criminal justice process, the due process model believes in limiting the powers of the police. For this model it is not enough to have an enabling legislation for the official act to be valid. It has to be tested to the mandates of the Constitution and thus judicial scrutiny of administrative actions vis-à-vis the supreme law of the land becomes mandatory.

The following comparative chart would make you understand the cardinal difference between the two models-

Summary:

The models of Criminal Procedure represents a convenient way to understand and analyse the values underlying the way procedural rules are framed and the decision made by different actors based on such rules or discretion. The model enunciated by Prof. Herbert Packer is widely accepted. They are the Crime Control Model and the Due Process Model. As Packer himself says these are not working models or models that exist in real world. These are polarities of the values represented, a combination of which may exist in the real world. In other words, a system may tilt towards either model. There are some common features they share like the principle of ex post facto laws, limits on the discretionary powers of the police, procedural due process etc. To talk about the differences, the Crime control model considers repression of crime as the most important function whereas due process model considers criminal procedure as a guarantor of human freedom. Efficiency under the Crime control model is manifested by high rates of conviction which is created by a system of informal fact finding and minimal avenues for challenge. Under the due process model it is more important to make sure that the individual is treated fairly and the possibility of error is ruled out to the maximum extent possible.