The Civil Side of Criminal Procedure: Back to the Future?

Abstract

This Essay, an introduction to a symposium on the Civil Side of Criminal Procedure, explains the critical role of civil litigation in guiding and checking the criminal justice system and how both civil and criminal procedure may be reformed to improve compliance by law enforcement officers with legal limits on investigation and prosecution. For roughly the first century under the Constitution, civil litigation based on the common law torts of trespass, false imprisonment, and malicious prosecution provided the primary regulation of American law enforcement. Systemic reliance on private law made sense while criminal law enforcement, prosecution included, was conducted largely by private persons. During the late nineteenth and early twentieth centuries, the criminal justice became administered by full-time public officers, and the regulatory structure evolved. A regime of administrative discretion regulated at the margins by exclusionary rules and the residual threat of tort liability has been in place ever since. The articles in the Symposium invite the speculation that civil proceedings may bring criminal procedure back to the future, and provide some intriguing glimpses of what such a future might look like.

Keywords: civil litigation, criminal justice, torts, compliance, regulatory, liability