Decisions like Miranda v. Arizona helped popularize a conception of the courts as a protector of criminal defendants and a bulwark against overly aggressive law enforcement. But from arrest through trial, the U.S. Supreme Court has fashioned criminal constitutional procedure with a deep and abiding faith in the motivations of the criminal justice system’s actors. Even decisions that vindicate individual constitutional rights at the expense of police and prosecutorial power are shaped by the Court’s fundamental trust in those same actors. They establish, in essence, “Criminal Doctrines of Faith.” Criminal Doctrines of Faith pervade each stage of the criminal process—from cases that govern the pursuit of suspects and searches of homes to the disclosure of exculpatory evidence and the defendant’s capacity to waive a jury trial. This faith in law enforcement takes several forms. Some decisions reflect a simple faith in the character of police and prosecutors, but others reflect faith in the institutions in which they work or in the courts’ ability to identify and deter misconduct. Recent high-profile prosecutions of police officers have highlighted and raised new questions about how much criminal procedure should rest on faith. In such cases, trusted government actors, both police and prosecutors, have attacked the integrity of a criminal process ostensibly designed to control their own behavior. Using the trials of the Baltimore police officers charged in the death of Freddie Gray as a lens, this Article highlights how the Supreme Court’s faith in police and prosecutors raises profound questions about the strength of these doctrines, the importance of more skeptical and diverse viewpoints on courts, and the viability of court-led regulation of law enforcement actors.
David Jaros, Criminal Doctrines of Faith, 59 B.C. L. Rev. 2203 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss7/2