Friday, September 17, 2010
Mary D. Fan (University of Washington - School of Law) has posted The Police Gamesmanship Dilemma in Criminal Procedure (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
Police gaming of the rules is a perennial challenge for constitutional criminal procedure, leading to twists and hazard zones in the law such as the recent decision in Arizona v. Gant and feared fallout from Maryland v. Shatzer. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves rule-pushing and dodging tactics of dubious propriety that exploit blind spots, blurry regions or gaps in rules and remedies. Currently, courts generally avoid peering into the Pandora’s Box of police tactics unless the circumvention of a protection becomes too obvious to ignore and requires a stop-gap rule-patch that further complicates the maze of constitutional criminal procedure. This approach leaves murky the line between fair and foul play and gives police perverse incentive to game covertly. A new approach is needed, founded on a better understanding of police gaming of the rules. This article takes up the task.
The article offers a taxonomy of the three main forms of problematic police gaming and proposes anti-gaming standards and data-development remedial rules to address them. The taxonomy distinguishes between desirable police innovation and problematic rule subversion and divides problematic police gaming into three variants: conduct rule gaming, remedial rule gaming and framing rule gaming. The taxonomy builds on the distinction between conduct and decision rules elegantly adapted by Carol Steiker and Meir Dan-Cohen from Jeremy Bentham’s work. The article argues for deploying anti-gaming standards to supplement bright-line rules to empower adjudicators to block unfair plays and better inform police judgment on issues where the incentive to game is high because the potential evidentiary payoff is direct. The article also argues for reorienting the predominant remedial approach when a violation is found to incorporate data-development remedies that surface problems sooner and give police incentive to cooperate in monitoring and reform.