Due Process or Crime Control?

Posted On // Leave a Comment

In a 1964 paper on the criminal justice process in the United States, Professor Herbert Packer of Stanford University described two models of criminal justice process - namely, due process and crime control. This paper has since been regarded as one of the most important contributions to systematic thought about criminal justice.

Singapore's transition from a due process model to a crime control model occurred in 1976, and these are the main changes that were made.

Under the due process model,
criminal justice looks like an obstacle course, consisting of a series of obstacles to the conviction of what Prof Packer called the factually guilty on the premise that it was better to let 10 guilty men go free than to convict an innocent one.

The fundamentalprinciple was the presumption of innocence.

This meant that:

  • The prosecution must prove every ingredient of the offence against the accused beyond a reasonable doubt.
  • The accused had the right to remain silent at any stage of the criminal justice process, from investigation to trial.
  • The accused had the right not to incriminate himself, except in restricted circumstances.
  • The accused's statements to the police were not admissible except in restricted circumstances.
  • He had the right to give an unsworn statement from the dock.
  • All evidence, even if true, was not admissible if it might have a prejudicial effect on the jury.

The features of the crime-control model (as identified by Prof Packer) are:
  • The repression of crime should be the most important function of criminal justice because order is a necessary condition for a free society.
  • Criminal justice should concentrate on vindicating victims' rights rather than on protecting defendants' rights.
  • Police powers should be expanded to make it easier to investigate, arrest, search, seize and convict.
  • Legal technicalities that handcuff the police should be eliminated.
  • If the police make an arrest and a prosecutor files criminal charges, the accused should be presumed guilty because the fact finding of police and prosecutors is highly reliable.
  • The criminal justice process should operate like an assembly-line conveyor belt, moving cases swiftly along towards their disposition.
  • The main objective of the criminal justice process should be to discover the truth or to establish the factual guilt of the accused.

  • The 1976 amendments introduced in Singapore many features of the crime-control model. The more important ones are:

  • In the realm of police investigations: Essentially all statements made by an accused to a police officer in the course of investigation, except an involuntary confession, would be admissible in evidence. The accused is cautioned that he must disclose any fact he intended to rely on in court, and that if he failed to do so, his evidence might be less likely to be believed if he mentioned it in court later.

  • In trial procedure: If the accused is called upon to enter his defence, he has no right to make an unsworn statement from the dock. He must give evidence on oath or affirmation and subject himself to cross-examination. If he elects not to give evidence, the court may draw an adverse inference against him.
  • Before we point to a decrease in crime rate and attribute it to this, let's first recognize that this isn't the only factor. Increased affluence and general economic growth is in fact equally important in bringing about this decrease in crime rates.

    That aside, a few questions must be answered.

    First, does a model of crime control deter criminals?
    • While not all criminals are driven by desperation, there is in fact a considerable proportion of criminals who resort to crime simply because they have no other alternative. They could be the starving thieves who have to feed their family of 5. Or the emotionally-charged individuals who kill during a moment of irrationality.
    • As for those who do indeed have a choice, let us just consider for one moment how many criminals actually understand the legal jargon of the Criminal Procedure Code, or for that matter even have access to it. Mind you, there was no public campaign then in 1976 going - We're changing our law such that we'll rather catch 10 innocents than let 1 guilty go. Thus it is quite impossible for these changes in the law to have much of a deterrent effect. The only possible deterrent effect would have had to come from the creation of a general impression on the ground that the Singapore government was clamping down hard on crime. But such a public opinion campaign could simply be done even without a change to the Criminal Procedure Code. Thus this rules out all the factor of deterrence.
    • Instead, a more plausible explanation would be that less criminals who were indeed guilty, were released. This is more or less indisputable. However, a justice system that places the burden of proof upon the accused might at the same time create complacency within the police force, resulting in them relaxing their standards of gathering evidence, thereby possibly allowing more criminals to escape. Yet this hasn't really happened in Singapore where standards of policing are rather high and to top it all off, the police division is probably more professional than I just gave it credit for.
    • However, the whole notion of evidence gathering does lead me to wonder: With advancing technologies allowing the police to be more effective in gathering evidence (take DNA samples for instance), is it still necessary for due process to be compromised? If the police are already so efficient in incriminating people, is there still a need to risk incriminating innocents just for the sake of ensuring social security? This point of course belongs to the final question.
    Second, what are the implications of denying innocent people due process?
    • Issues with public perception do not really factor in here. This is given the lack of media attention this issue has been given, as well as a general apathy by Singaporeans, possibly because they agree with the principle behind placing security above all else.
    • However, incriminating even one innocent person is obviously not something a judicial system should aim for. Add on to this the possible public uproar in the event that such an incident is discovered and it's revelation made public. Not only would it hurt the credibility of the judicial process, but it would also call into question all past convictions that were made in the name of crime control.
    • Ultimately, any compromise on justice is an unfair trade off for the innocent victim who definitely would not enjoy the added security provided through this trade off.
    Finally, how do we weigh the two?
    • Given that security is already being enhanced through better policing methods, better abilities to gather evidence, and a more professional police force, this might actually be a good time to revert back to the system of due process. Not only will such a move improve the credibility of the judicial system, but it also guarantees us all our basic right to due process, a right that protects us from an over zealous government.