Faculty Journal Articles and Book Chapters

Abstract

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

Publication Title

American Criminal Law Review

Publication Date

2022

Document Type

Article

Keywords

Secrecy, Criminal Justice, Transparency, Surveillance, Investigation, Grand Jury, Plea-Bargaining, Discovery, Conviction, Evidence, Punishment, Eighth Amendment, Equal Protection, Due Process, Confrontation Clause, Fourth Amendment

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