Models of Criminal Procedure

1. Introduction:

Models of criminal procedure present a convenient way to talk about the values underlying
Criminal Justice Administration. The values may be observable in the statutory procedural
rules, and decisions made by police officials, prosecutors or judges. Decisions of each of
these actors represent their inclination towards a particular model of Criminal Procedure.
There have been numerous attempts to conceptualise the streams of value systems that
underlie such rules and decisions.1 The models enunciated by Herbert Packer in his classic
book, “Limits of the Criminal Sanction” (Stanford University Press, 1968) are widely
accepted.2 According to Packer there are two models of criminal justice – Crime Control
Model and Due Process Model, which are not to be taken in terms of ‘Is’ and ‘Ought’; but
they represent an attempt to abstract two separate value systems that compete for priority in
the operation of criminal process. Crime Control Models emphasises the values of greater
efficiency and regulation of criminal behaviour whereas the Due Process Model aspires for
credibility of the system.

Before proceeding to analyse the models in some detail it would be worthwhile to mention
that these models are not working models, in the sense that it would be impossible to identify
a purely crime control model or a due process model in the real word. Rather, they are
polarities placed in the two extremities of a spectrum, each representing a set of values.
Elements of both models may be present in the rules made by a system or the decisions made
by the law enforcers.

2. Common features:

Though poles apart in most of the values, both the systems do share some common features.
However the relative importance given to each of these values may differ.

1
For instance, there is Justice Model and Volitional Model, according to David Fogel. Infra n.3
2
Herbert Packer, Limits of Criminal Sanction (Stanford University Press 1968)
The following are the values they share-

2.1 Ex post facto clause

The limitation in criminal law that a particular conduct must be defined as a crime prior to
identifying and dealing persons as criminals. In other words no conduct can be criminalized
after the act has been committed.

2.2 Limits on discretionary powers of the police/prosecution

When a conduct has been defined to be a crime by the legislature, the participants in the
criminal process are under a duty to treat it as a crime. This acts as a limitation on the
discretionary powers of the police and the prosecutor. They have to just perform their roles
when it appears that a crime has been committed.
2.3 Limits on state power vis-à-vis individual privacy and security

It is accepted that there are limitations on the powers of the government to investigate and
apprehend persons suspected of committing crimes. For instance, an individual cannot be
taken and kept in custody as long as the investigating officer desires. There is some degree of
control and scrutiny of such actions of the government having regard to the privacy and
security of the individual.

2.4 Procedural due process

The last element is based on the assumption that the individual alleged to be a criminal is an
active agent in the process and his guilt must be demonstrated before an independent
authority. In other words, it is the acceptance that criminal process is a contest between two
independent actors i.e the accused and the prosecution. Though the relative importance of this
contest in the criminal justice process varies, both the systems tend to accept the potentiality
of the process becoming an adversarial struggle.

3. Crime Control Model:

Crime control model as the name suggests emphasises on prevention and control of crime
through prosecution and punishment of criminals. It believes that the interest of the public
can be better served by reducing the number of crimes by generating fear of efficient
prosecution and punishment. This may at times result in disregard of the interest of those who
are suspected of criminal charges. The essence of the Crime control model has been
summarised by one author in the following words, “..... Crime control model or bureaucratic
model emphasises efficiency, finality and preservation of order. It proceeds with an official
presumption that an individual charged with an offence is possibly guilty of it or some other
offence. This model finds connection between rate of convictions and domestic tranquillity
and general welfare.”3

3
Ibid p. 544
 The characters of the crime control model may be analysed as follows-

3.1 Repression of criminal conduct is the most important function to be performed by

the criminal process

The basic proposition of the crime control model is that repression of crime is the most
important function of criminal process. Failure to enforce law (high percentage of failure to
apprehend and convict) will lead to general disregard of legal controls. This will be adverse
to public interest as a law abiding citizen will lose his security of person and property.

Failure to enforce General disregard of Laws Victimization of law abiding citizen

Curtailment of human freedom Security of person and property affected

As repression of crime will lead to individual security in society, the crime control model
postulates criminal process as a guarantor of human freedom. This takes as to the next level
of analyzing how the model intends to achieve this purpose.
3.2 Efficiency, Speed and Finality

According to the model, the criminal process could become the guarantor of human freedom
by increasing the ‘efficiency’ of the system. Efficiency means the system’s capacity to
apprehend, try, convict and dispose of a high proportion of criminal offenders whose offences
become known. Therefore the system considers high rates of apprehension and conviction a
virtue.

Two other important characteristics of this model are speed and finality. Speed depends on
informality and uniformity. Unnecessary procedures having potential to delay the process
must be avoided. For instance, facts established by police interrogation must be accepted than
insisting on formal fact-finding through cross-examination in the court. Extra judicial
processes should be preferred to judicial ones. And uniformity of the process means that each
agent has his routine duty to perform and this will ensure that a large number of cases are
handled within a limited time.

Herbert Packer calls it a system of “assembly line justice” because it reminds of “an
assembly-line conveyor belt down which moves an endless stream of cases, never stopping,
carrying the cases to workers who stand at fixed stations and who perform on each case as it
comes by the same small but essential operation that brings it one step closer to being a
finished product..” Thus it is a system where cases move from one stage to another swiftly
without much hindrance.

In order to achieve this the models considers the following to be important-

I. Early screening out of those who are probably innocent and expeditious
conviction of the rest.
II. Facts can be established informally. Facts established by administrative
agencies (as opposed to judicial agency) are reliable indicators of guilt.
III. There shall be minimal opportunities for challenge of convictions
rendered.

3.3 An affirmative model

Packer calls the Crime control model an affirmative model because it emphasises, at every
stage the existence and exercise of official power. The validating authority of such
administrative power is only legislative meaning that if there is a legislative enactment
authorising the exercise of such power, the action is valid. This is contrary to what the due
process model postulates. Under a due process model the action in order to be valid must pass
through judicial scrutiny, which will test the judicial power to the demands of a supra-
legislative law i.e. the Constitution.

4. Due Process Model:

According to Blumberg, under the Due process model the justice system seeks to develop
social, legal and organisational structure, which will filter out law violators and also provide
an avenue of personal freedom to those who are innocent or casual law breakers. The guilt of
the person must be established by an impartial tribunal after public hearing giving due respect
to individual rights. Unlike the crime control model, the due process model prefers reliability
over efficiency. It is always sceptical about the possibility of error and an innocent accused
getting convicted. Therefore the values of the model are presumption of innocence, protection
of individual liberties, exclusion of coercion, judicial check over executive actions and
further scrutiny to rule out the possibility of error.
 The characteristics of the Due Process Model may be summarised under the following
heads-

4.1 The most important function of criminal process is ensuring procedural fairness

Ensuring fairness to the accused and avoiding error to the maximum extent possible are the
main considerations of the due process model. It recognises efficiency as a desirable
characteristic, but it is desirable only when it is complementary to reliability. Reliability
cannot be sacrificed for the purpose of efficiency. So at every stage of the proceeding
procedural formalities are strictly adhered to avoid any possible violation of individual rights
or any error in fact finding.

4.2 Fact finding process

The due process model rejects the informal and non-adjudicative fact-finding of the crime
control model and instead advocates for a formal and adjudicatory fact finding. When facts
are allowed to be established informally there is a possibility of the police coercing the
accused physically or psychologically to establish what may be far from the truth. Similarly
witness may be influenced and in the absence of an impartial tribunal where the accused has
the opportunity to cross examine the witnesess and the evidences against him, the innocent
may be punished. Therefore the Due Process model insists on a formal, adjudicative and
adversary fact-finding process. The fact-finding process under the due process will have the
following characteristics-

a. Public hearing
b. An impartial tribunal
c. Full opportunity to the accused to discredit the case against him
d. Further scrutiny to avoid possible error

4.3 Reliability

Due process model gives more weightage to reliability than efficiency. It believes in
eliminating error to the extent possible. Therefore effort is taken at every stage to make sure
that no error goes unnoticed and an innocent is harmed. This insistence of the model on
reliability has made it an “obstacle course” often resulting in the process getting delayed at
every stage. The following characteristics may be observed in such a model-

4.3.1 Police powers are limited

As the Due Process model believes that the combination of stigma and loss of personal
liberty is the heaviest deprivation that the state can inflict on an individual; it is sceptical
about how police power is exercised by the state. Therefore constant monitoring is required
to check official oppression of individual liberty. For instance, understanding the social
stigma associated with a person being arrested by the police, the model may mandate that
arrests resulting in loss of personal liberty must only be made after cogent evidence is
gathered especially when the crime in question is less serious.

4.3.2 Proof of legal guilt

Due process model does not believe in factual probability of guilty. It does not deem a person
to be guilty even if the informally established facts show in all probability he has committed
the alleged crime. It starts on the premise of presumption of innocence and mandates that the
guilt of the accused must be proved having regard to all procedural safeguards including
jurisdiction of the tribunal, double jeopardy etc. Thus, a crime committed by a person in front
of a large crowd may go unpunished if the witnesses refuse to depose against him. The
essentiality of proving a person to be legally guilty is quite different from the public
knowledge that he has committed the act.

4.3.3 Correction of system’s abuses

The Due process model considers the process the appropriate venue for correction of its own
abuses. Unlike the crime control model, it does not stop just be lying down rules to check
abuses, but goes ahead to correct them. For example, both the models have rules against
illegal arrest, unreasonable searches and coercive interrogations. However, the due process
model goes a step ahead and rejects all evidence obtained or through reversal of convictions
in cases where the criminal process has breached the rules laid down. It may also order the
state to compensate the accused for his loss of liberty and image.

4.3.4 Equal justice

The model takes in to account the gross inequalities in the available resources of the
defendants in a criminal case and in a large number of cases the accused is incapable of
putting up an effective defence due to lack of resources. Therefore the system makes it a
public function to make sure that the respondent has adequate resources including financial
resources, so that the trial becomes. Thus the model recognizes the possibility of socio-
economic and political factors influencing the final outcome of the state and makes a cautious
approach.

4.4 Negative model

Unlike the crime control model which emphasizes on official power for effective working of
the criminal justice process, the due process model believes in limiting the powers of the
police. For this model it is not enough to have an enabling legislation for the official act to be
valid. It has to be tested to the mandates of the Constitution and thus judicial scrutiny of
administrative actions vis-à-vis the supreme law of the land becomes mandatory.

The following comparative chart would make you understand the cardinal difference between
the two models-

Crime control Model Due Process Model

1. Repression of crime is the most

1. The most important function of
important function of criminal
criminal process is to ensure
process
procedural fairness
2. Informal and administrative fact
finding is allowed 2. Presumption of innocence and
protection of individual liberty from
3. Existence of police powers
police excesses are some cardinal
limited only by legislation
values
4. There shall be minimal
interference once a decision is 3. Facts must be established by an
 rendered adjudicative authority giving complete
opportunity to the accused to discredit
5. Efficiency, expressed in terms of
the case against him
high rates of conviction is the
highest goal
4. Check on police powers by judicial
6. High rates of conviction is a sign authority
of social tranquillity
5. Avoidance of error to the maximum
extent, so further scrutiny is mandatory

6. Reliability is the highest goal.

Scepticism about the possibility of
error when speed and finality become
the goals

5. Summary:

The models of Criminal Procedure represents a convenient way to understand and analyse the
values underlying the way procedural rules are framed and the decision made by different
actors based on such rules or discretion. The model enunciated by Prof. Herbert Packer is
widely accepted. They are the Crime Control Model and the Due Process Model. As Packer
himself says these are not working models or models that exist in real world. These are
polarities of the values represented, a combination of which may exist in the real world. In
other words, a system may tilt towards either model. There are some common features they
share like the principle of ex post facto laws, limits on the discretionary powers of the police,
procedural due process etc. To talk about the differences, the Crime control model considers
repression of crime as the most important function whereas due process model considers
criminal procedure as a guarantor of human freedom. Efficiency under the Crime control
model is manifested by high rates of conviction which is created by a system of informal fact
finding and minimal avenues for challenge. Under the due process model it is more important
to make sure that the individual is treated fairly and the possibility of error is ruled out to the
maximum extent possible.
Self-check exercise:

1. What are the common features shared by the two models enunciated by Prof. Packer?

2. What are the characteristics of the Due Process model?

3. What makes the due process model different from its counterpart?

4. Which model, according to you, resembles the Indian Criminal Justice system in most of its
characteristics?