The trial judge's Constitution

THE Constitution, to the uninterested high school student, is an exercise in boredom; to the professional historian, an exercise in political science; to the police officer, an exercise in frustration; to the crime victim and witness, an exercise in futility; and to the prosecutor, an exercise in technicality. A judge, pondering a motion to exclude from a trial evidence the government obtained without a necessary warrant, recognizes that the Constitution can also be an exercise in public disapproval.

Much of the Constitution deals, of course, with the mechanics of government: political structure, elections, executive and legislative powers. Although they sometimes raise serious legal and constitutional questions, those matters only rarely give judges everyday problems.

But taken as a whole, the Constitution and many of the amendments (particularly the Bill of Rights and the Civil War amendments) express two major concerns:

1. In its relation to the individual, government -- both state and national -- is likely to be oppressive and therefore in need of imposed restraint.

2. When investigating crime and prosecuting suspects, the authorities are likely to be overzealous and wrong.

Because the institution through which we seek to regulate social conduct and to control antisocial behavior is the court system, judges, especially state and federal trial court judges, must endlessly undertake to resolve the irreconcilable.

They must ensure that government is permitted to perform its necessary function. They must give the police sufficient scope to apprehend miscreants and to garner evidence needed for convictions. Finally, they must not hamper prosecution of the guilty.

Simultaneously, however, they must make of the constitutional guarantees something more vital than mere 18th- and 19-century rhetoric.

In practical terms, this frequently requires a judge, in obeying the Constitution's mandate, to reach a result that allows an apparently guilty person to avoid conviction. I say ``apparently guilty,'' because in our system of justice no one is guilty of anything, however apparent his culpability, unless the government proves him so, on fairly obtained evidence, beyond a reasonable doubt.

``Why is it,'' people are asking, ``that the courts care so much more for the defendant than for the victim?'' The answer is clear but unpopular. Whatever the crime alleged, the court cannot treat the defendant as anything but innocent. Certain though the evidence may be -- even to the point of a confession -- the court must guarantee that the police did not acquire it improperly.

Judges do not apply the presumption of innocence because as a class or as individuals they like criminals, or because they are insensitive to a victim's needs and feelings. Indeed, many of us have ourselves been victims of violent crime.

No, courts are not overprotecting criminals. They are simply serving as society's surrogate in trying to make sure that the Constitution remains what the founders meant it to be, a protector of liberty.

As a people, Americans tend to want prompt resolution of all problems. Even our greatest thinkers share this trait. Justice Holmes could give no greater praise than to say of someone, ``He has an instinct for the jugular,'' meaning an ability to cut through to the heart of a question.

The fairness that the Constitution demands of the criminal-law process, however, does not favor shortcuts. In constitutional terms, justice is often a ponderous, clumsy affair. It rests on the concept, demonstrably false statistically, that the defendant is not guilty. By permitting a testing of the procedure by which the police got the evidence, it encourages delay.

Thus judges regularly appear to thwart the ``law enforcement community'' in its expert efforts to control crime. This fosters an understandable feeling of frustration among those who believe they know, perhaps even correctly, what is right and necessary for the public good.

Every trial judge, state or federal, has, however, sworn an oath -- itself mandated explicitly by the framers -- to recognize the Constitution as ``the supreme Law of the Land'' and to ``be bound thereby.'' The Constitution incorporates an unshakable belief that expertise, particularly in the area of law enforcement, is no assurance of justice.

It is the judge's job to supply the assurance.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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