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Georgia State University College of Law




Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and requires an evaluation at the end of the trial process to see if what happened had an adverse effect on the result. Another method creates rules that depend on the reaction of someone else, typically the defendant, to trigger the violation. The last way the Court has created conditional rules is to aggregate the time frame in which to make a judgment about the legitimacy of the actor's behavior, so that it must await further behavior by the same actor or someone exercising governmental power toward the same end. These rules superficially resemble applications of the harmless error doctrine or examples of waivers of rights, but they differ in fundamental ways. They are far less protective of the rights of defendants and they send a much different message about the limits of government power to those who control the criminal justice system. They create confusion, fail to guide the behavior of the government actors whose power the Constitution limits, stand as barriers to institutional efforts at ex ante prevention, mislead the public about the scope of their rights, and often do not take into account any of the symbolic values that lay behind the provisions of the Constitution governing the state's power to use a criminal sanction.


Boston University School of Law Working Paper No. 08-25

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