ABSTRACT

This chapter contends that using the protections in the Bill of Rights to build a strong system of criminal procedure was always going to be a high-risk endeavor. In the first place, the Court has only limited data on the particular issue under consideration and only limited materials at its disposal. Second, the Court lacks expertise on many of these issues. Few justices have been trial judges (and fewer state judges); few have had practice experience in the criminal area. Third, the Court’s options at reform are much more limited than a legislature’s. Finally, any Court decision—like any piece of legislation—can run into the law of unintended consequences. Things do not always work as we had hoped. Changing legislation after it is in place can be difficult; changing Court decisions once in place is much, much tougher.