"A PATHOLOGICAL PERSPECTIVE: POLICE TACTICS, SURVEILLANCE & COERCION"-CONCEPTUAL FOUNDATION OF CRIMINAL PROCEDURE BY RICHARD SY KIM, PHD, JOHN JAY COLLEGE OF CRIMINAL JUSTICE/CUNY GRADUATE SCHOOL AND UNVERSITY CENTER0--ALL RIGHTS RESERVED*******

SURThe primary design of constitutions is to control future events of legal and governmental decision making as to how constitutional doctrines and provisions are interpreted and adjudicated within a polity. Such events, according to Vincent Blasi, are political, where in the past restrictive and closed interpretations of the first amendment have scandalously made permissible the repression and uprooting of unorthodox ideas in pathological periods of American legal and political history. The fundamental question of interpreting the first amendment is how courts should adjudicate first amendment disputes and fashion first amendment doctrines. The courts should adopt a “pathological perspective,” considers Blasi, a view that holds that first amendment protection should not be compromised in the advent of social and political intolerance and judicial conservatism during the worst of times. The overriding objective of the pathological perspective is to equip the first amendment to maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. Interestingly, the prophylactic qualities of this perspective, which aims to resolve and deter first amendment abuses extend beyond the preservative function of the basic governmental structures to normative, political commitment and constitutional ideals. As an analytic distinction, the pathological perspective distinguishes the provisions of the Constitution that establish the basic structure of government and the most significant relationship to the political regime, from provisions that embody more discrete, and less essential often no less important normative commitments or aspirations. Moreover, the conceptual underpinning of the perspective is situated in a right’s discourse that holds fundamental civil liberties such against and tantamount with constitutional provisions that establishes the basic structures of government and political regimes. The core proposition of rights cannot be violated without a system of adjudicatory interpretation and decision making degenerating into a state of governmental and social pathology. What, hence, allows for the legal and governmental pathology is the egregious abuse of fundamental procedural rights, which through a transgression of normative and constitutional requirements makes diseased the juridical and political body. However, it seems doubtful that the pathological perspective makes a claim of unlimited rights of speech and expression, but can be understood as a diagnosis of the extent to which the repression and control of unorthodox ideas through adjudicatory decision making vis-à-vis courts and political regimes have significantly contributed to such a pathology. Such a perspective of the first amendment can be applied to other amendments (fourth, fifth and the sixth) where procedural rights of persons must be afforded protection within constitutional provisions and fashioned doctrines during abnormal periods in criminal justice history. Importantly, one must consider that the defining feature of a pathological period is a shift in basic attitudes, among certain influential actors if not the public at large, concerning the desirability of the central norms of the fourth, fifth and sixth amendments. I Criminal procedure founded on the fourth, fifth and sixth amendment affords protection to the accused so that governmental interests in seeking truth and proof of culpability remain within the limits of preserving bodily integrity and without obtaining confessions through coercion. Since the Wickersham report during the 1920’s, which repudiated the excessive use of force and coercion, a pathological shift towards more deceptive strategies and methods of obtaining criminal evidence and information followed decades later. Thus, over the last fifty to sixty years the investigative operations and police interrogations have adopted more subtle and clandestine tactics and stratagems which have transformed how evidence and information is gained and produced. Unlike the abuses of fourth amendment protection deceptive practices such as electronic surveillance, undercover agents and psychologically coercive methods of confessions have superseded a pathological period towards a more technologically sophisticated and powerful mode of crime control. It will be argued here that the overriding objective of the pathological perspective is to equip the fourth, fifth and sixth amendment to full service so that privacy and liberty interests do not become threatened by governmental abuses of due process and concomitant normative standards. II The question of the fourth amendment protection from electronic surveillance has remained problematic since Katz as to whether evidence obtained through such means is constitutional. Prior to Katz, the rationale of the Olmstead and Goldman Court authorizing police use of wiretapping and bugging were justified by two reasons: (1) the police did not trespass upon the defendant’s premise, and hence did not constitute a “search”; and (2) only conversations were obtained, and so no “things” were seized. It was not until the Katz decision that the physical trespass doctrine had been rejected on grounds that privacy interests of the defendant within the meaning of the fourth amendment had been violated. A new rationale was provided: an unauthorized wiretap violates the fourth amendment if the subject places justifiable reliance on the privacy of a particular place. Katz thus made it clear, that with the possible exception of the case in which a conversation is overheard or recorded with the consent of a party to conversation, wiretapping and electronic surveillance are subject to the limitations of the fourth amendment. However, such constitutional limitations on electronic surveillance were no longer applicable when it involved under cover agents. In United States v. White, the Court held that government’s use of agent who may themselves reveal the content of the conversation does not violate the Fourth Amendment; and that Katz did not disturb the rationale of On Lee because agents used electronic surveillance to transmit the conversation to other agents. In a plurality opinion by Justice White, it was concluded that (1) one may not have a justifiable expectation that a defendant’s associates neither are nor will become police agents, and (2) that a different result is not called for when the agent has recorded or transmitted the conversation. The White decision rejected the criteria for the protection of privacy interests vis-à-vis electronic surveillance established in Katz, and furthermore failed to overrule On Lee and Lopez on such grounds. It appears that the conflation between electronic surveillance and undercover agency problematizes the way in which privacy claims are adjudicated. The conclusions reached by White holds that one cannot reasonably expect that a defendant’s associate may betray confidence and may be informant to the policy seems to be independent claim from one that justifies electronic surveillance as a legally permissible and constitutionally valid practice. Moreover, the logic of wagering an argument in favor of fourth amendment protections of privacy interests hinges on a disjunctive propositon: electronic surveillance should be rejected because it violates the justifiable reliance standard established in Katz or because the physical trespass standard violates fifth and sixth amendment protection of self-incrimination and right to counsel where surveillance is conducted without a warrant, wherein secret agents are involved. Such procedural protection should not be situated within an aim of suppressing illicit activity that is construed within the aegis of the criminal law, but within teleological means which ascribe the right of the accused to standards of equity and fairness. If such practices are deemed a necessary evil, our normative commitments to the right of privacy may have disturbing aftereffects as to how personal communications and social exchanges entail misplaced trust and countless betrayals by individuals and the state. III Confession and interrogation pose an epistemological presumption of ascertaining truth, which underscore how fifth and sixth amendment protection have been undermined by the police and the courts. It seems the internal contradiction of criminal procedure lies between the policy dilemma between the need to protect the individual against coercive law enforcement tactics, and to have effective means of crime control. Justice Goldberg in Escobedo v. Illinois comments that “no system of criminal law enforcement which comes to depend on `confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence secured through skill investigation.” Moreover, an important question in analyzing the rationale of police investigation and interrogation (custodial and post-indictment) may be understanding to what extent psychological tactics are employed that may induce confession. The problem of mapping out the legal and ethical boundaries in which police deception violate Miranda rights and due process protection have been documented. Interrogatory deception may stand as the functional equivalent of coercion since both strategies may induce involuntary behavior. In the absence of definitive guidelines and per se rules from the Supreme Court, the police officer may naturally adopt strategies advocated in a standard manual such as Criminal Interrogation and Confession. The Court in Miranda commenting on the pressures of such police tactics pointed to the deleterious effects of psychological coercion inherent in the process: We stress that the modern practice of in custody interrogation is psychologically oriented rather than physically oriented . . .This court has recognized that coercion can be mental as physical, and that the blood of the accused is not the only hallmark of unconstitutional inquisition. Interrogations utilizing psychological tactics with the threat of criminal sanction seems to make it less plausible that a suspect may voluntarily confess where fifth and sixth amendment protection is systematically denied. The voluntariness doctrine falls short of weighing the likelihood that miscarriage of justice may follow when fundamental protections are overlooked. However, such a doctrine appears problematic on epistemological and normative grounds: (1) the veracity of a confession cannot be ascertained when extrinsic evidence is lacking, (2) there is no causal relationship that demonstrates that an act of confession presupposes a free and rational choice on the part of the accused to incriminate him or herself, and (3) the capacity to discern the mental capacity to which psychologically coercive and deceptive interrogation induces a innocent person to make a false confession remains empirically unverified and inconclusive. IV A pathological perspective applied to certain elements of criminal procedure presents a novel manner of analyzing fourth, fifth and sixth amendment protections. The fundamental and rather dramatic shift in criminal law enforcement practices in modern criminal justice history have established a new paradigm that have called constitutional provisions and doctrines into epistemological skepticism and ideological conflict. To some it is apparent that such larger issues must refer back to the interpretation of the Constitution as a foundationalist and living text. However, the pervasive doubt that subverts such legal and judicial inquiry would be a rejection of criminal procedure as external to the preservative function and governance of the state and its embedded political ideology and concomitant social structures. A pathological perspective in ideologically polarized times call to attention the violation of due process protections as a corrective, perhaps, to reconfigure and renegotiate the claims of constitutional protections within a more holistic and axiological framework of criminal law and social policy. A Pathological Perspective: Police Tactics, Surveillance & Coercion Richard S. Kim Conceptual Foundations of Criminal Procedure Professor Heffernan January 5, 1998 VEILLANCE, CRIME & PHILOSOPHY & CULTURE