[Criminal Procedure][How would you define criminal procedure?]

DR. CRAIG HEMMENS: Criminal procedure is--the way I usually define it for my class is it's the rules thatthe state has to follow. [DR. CRAIG HEMMENS, PROFESSOR]We think of criminal law as the rules that we all haveto follow-- thou shalt not murder, that kind of thing.Criminal procedure is, really, the rulesthat the state and in particular, the police,have to follow as they enforce the law.

DR. CRAIG HEMMENS [continued]: So what are the procedures, hence the term procedure.What are the procedures and the processesthat the police have to follow, engage in,in order to investigate, arrest, and prosecute someone.[What first inspired you to start academic workin the field of criminal procedure?]

DR. CRAIG HEMMENS [continued]: I've always been interested in the law and criminal procedure.I went to law school after undergraduateand was one of the many who foundthe law interesting but the daily practice of it,not so much.But interested in studying it and knowing more about itand I'd always been interested, also,in how the state and the citizen interact, if you will.

DR. CRAIG HEMMENS [continued]: What is it that the state can do to us, the citizens.What are the rules that govern what the state can do.And that's criminal procedure.So as I got interested in that, I really focused on that.And then as I went on, I got my PhD In criminal justice.My focus has been on legal issues in criminal justice,but in particular, criminal procedure because,again, I'm just interested in the interaction

DR. CRAIG HEMMENS [continued]: between the state and the citizen.And again, what the state can do, when they can do it,the limits, and in some cases, the lackof limits on state power.Again, with the law background, my interestI would generally say is legal issuesin criminal justice, which is criminal procedure,criminal law, delves into corrections law.

DR. CRAIG HEMMENS [continued]: So pretty much anything with the law and criminal justiceI'm certainly interested in.I've also studied some in corrections.That's been more happenstance than anythingas is, maybe, often the case when I was in graduate school,my mentor focused on corrections.So that's what I did.And then when I came to my first academic post,

DR. CRAIG HEMMENS [continued]: I began working with a colleague who I later married.That's Mary Store and she studies corrections.So I thought it would be a good ideato keep studying corrections.But primarily, just legal issues and criminal justice.[What key thinkers have most inspired you?]

DR. CRAIG HEMMENS [continued]: There have been several key thinkersand they kind of cover the spectrumof who had influenced me and directed mein my research, my interests.Early on, it was the writings of some Supreme Court Justices.In particular, Justice Brennan and Justice Douglas.Justices who wrote a lot about criminal procedure

DR. CRAIG HEMMENS [continued]: in the 1960s and the 1970s, who were reallyat the forefront of what's been called the due processrevolution.So they were very articulate defenders of individual rightsand they cautioned against giving the statetoo much power.And I really took that to heart, so thatwas very interesting to me.Then going on, as I began to really study

DR. CRAIG HEMMENS [continued]: the law, some of the legal writers-- lawprofessors Wayne LaFave, Jared Israel,who folks would know on the law side of things.And then in graduate school I was very muchinfluenced by Orlando Del Carmen, whowas a professor at Sam Houston State, where I got my degree

DR. CRAIG HEMMENS [continued]: and one of the first people to write extensivelyabout legal issues in criminal justice.So I really followed his, if you will,lead in trying to do that.[How has the field changed in recent years,and what developments do you consider most important?]Criminal procedure has changed in recent years I would say,

DR. CRAIG HEMMENS [continued]: in general-- because so much of criminal procedure is obviouslydriven by Supreme Court decisions and what they saythe police can and cannot do-- interpretations of the Fourth,Fifth, and Sixth amendment-- as the composition of the SupremeCourt has changed, you see the opinions of the Supreme Courtchanged to some degree.So going back to the 1960s and early 1970s,

DR. CRAIG HEMMENS [continued]: under Chief Justice Earl Warren, youhad what was perceived as a liberal Supreme Courtor a pro-individual rights Supreme Court.Since the mid '70s, the court hasbecome, in my opinion, increasingly conservativeand increasingly pro-law enforcement.So whereas the court was, perhaps,

DR. CRAIG HEMMENS [continued]: more willing to interpret the Fourth, Fifth, and SixthAmendments in ways that gave citizens greater protectionsagainst police overreach.I think in recent years-- in the past quarter century,really-- the court has been less likely to buythose kinds of arguments and morelikely to find in favor of a police practice-- police

DR. CRAIG HEMMENS [continued]: technique that may infringe on Fourth, Fifth, or Sixthamendment rights.So I think it's gotten more conservative, more pro-lawenforcement.Kind of drawing the line, sort of, after the Warren Court.[Why do you think the Supreme Court has become moreconservative over the last few decades?]

DR. CRAIG HEMMENS [continued]: It's a combination of things.I think you had a change in the composition of the court.You had some justices who clearly had a more individualrights focus who retired or left the courtand were replaced by more conservative justices.When Richard Nixon became president,one of his campaign pledges was to increase law and order

DR. CRAIG HEMMENS [continued]: in this country and to get justiceson the court who will not legislatefrom the bench, which, really, was code for stop issuingdecisions that are particularly pro-individual rights.So you've got justices under President Nixon,under President Reagan, under the first President

DR. CRAIG HEMMENS [continued]: Bush and second President Bush who tendedto be more pro-law enforcement.That's not all the justices on there.President Obama and President Clintonhave both appointed some justiceswho, perhaps, are a little bit more pro-individual rights.And again, these are generalizations from caseto case.The decisions may vary.But in general, I think that's a pretty fair assessment.

DR. CRAIG HEMMENS [continued]: So the composition of the court has changed.And the court is driven, to some degree, by public opinion.We've gone through the war on drugs,the get tough on crime movement.There really was a feeling in this country that,starting in 1970s, that maybe we had gone too farin the promotion of individual rightsand the protection of individualsat the expense of public safety.

DR. CRAIG HEMMENS [continued]: So I say, for instance, that a Justice is pro-law enforcement,I'm also saying, essentially, that he or she is reallyfocused on the promotion of public safetyperhaps at the expense of some individual liberties,but certainly in the service of a good cause, too.We all want public safety.[What do you think the future holds,and what do you feel are the reasons for these changes?]

DR. CRAIG HEMMENS [continued]: Predictions for the future of criminal procedure are hard.I would base it primarily on the composition of the SupremeCourt.As one justice leaves, another comes on,there could be a very real shift in the compositionof the court.So a decision-- there are nine memberson the court whereas a court might vote five to fourin one direction, if the composition of the court

DR. CRAIG HEMMENS [continued]: changes by 1 member, it could be five to fourin the other direction.And it's not uncommon for criminal procedures decisionsof the Supreme Court to be split five to four.These are all close questions the court is considering.I wouldn't say that there's a right and a wrong answeron the Supreme Court.There's an acceptable answer and a better answer.

DR. CRAIG HEMMENS [continued]: I, obviously, feel that the better answer tendstowards the pro-individual rights side of the spectrum,but you can make a very strong argumentin the other direction.So it's always going to be close decisions, close cases.So just changing the composition the court will affect things.But there are also factors outside the court that,obviously, have an impact.

DR. CRAIG HEMMENS [continued]: The impact of technology.Technology is a tremendous change agentin law enforcement.We had a recent Supreme Court casesdealing with police searching and seizinga suspect's cell phone.And the question was, well, can the police search a cell phonewithout a warrant.

DR. CRAIG HEMMENS [continued]: And what is a search.Does that mean looking at what's displayed on the cell phoneor does that mean going into the cell phoneand looking at who the person has recently calledor who has recently called them.So as technology changes, the courthas to answer, how does the Fourth Amendment apply to that.So I think that's pretty significant.

DR. CRAIG HEMMENS [continued]: We've had changes since 9/11 in laws.We have the Patriot Act and a host of other lawsthat have increased the power of the state,the federal government, and local law enforcementto engage in surveillance.To engage in more proactive and intrusiveinvestigatory techniques in an effort,

DR. CRAIG HEMMENS [continued]: again, for a good reason to try to ferret outterrorist activity and promote public safety.But it changes how law enforcement agentsinteract with citizens.So when major events like 9/11 happen.That certainly has an impact on legislation and policy-making.And all those questions eventually

DR. CRAIG HEMMENS [continued]: come to the Supreme Court and they are the final wordon criminal procedure.[Can you provide any examples of key research in the field thathas had a direct impact on policy?]Research on criminal procedure and policyis-- there has been research that has affected it.Perhaps not in as direct a way as you

DR. CRAIG HEMMENS [continued]: might have on research on theories of criminal behavioror on effect of policies on recidivism.I don't think it's always as directa link because most criminal procedure research, oftenreferred to as doctrinal research,focuses on the impact of decisions.Analyzing a Supreme Court decisionand suggesting what the impact might be.

DR. CRAIG HEMMENS [continued]: But there have been some empirical studies--some research done on recent decisions or on policiesthat agencies have implemented as a result of a decision.So for instance, go back many years--when the Supreme Court issued a decision in Miranda vArizona, which said that the police, when they arrestedsomebody and wanted to interrogatethat person in custody, they had to tell the arrestee what

DR. CRAIG HEMMENS [continued]: their rights were.That they had the right to counsel,the right to refuse to speak to the police officers, if theywant to.And the fear was-- police departments,police chiefs around the country said this is terrible,this will result in fewer suspects talkingto us and fewer confessions.And therefore, we solve a lot of cases the confession,we'll have fewer convictions.Well, there was some research done in the years

DR. CRAIG HEMMENS [continued]: after the Miranda decision which showed that suspects stillconfessed about the same rate as they did before beingwarned of their Miranda rights.Now, I don't know what that tell you.Maybe that tells you that suspects don't-- still evenwhen apprised of their rights, don't recognize that it mightbe in their best interest to be quiet.

DR. CRAIG HEMMENS [continued]: But I guess that's a good thing for law enforcementand, perhaps, for public safety.But the fear that this decision would impact criminal justicein a particular way was shown to not be a problem.That in fact, we were still getting confessions and stillgetting convictions based on those confessions.Other research has looked at things like Supreme Court

DR. CRAIG HEMMENS [continued]: decisions involving search and seizure of probationersand parolees.There was a series of decisions in the early 2000s wherethe court said that those individuals on paroleor probation could be searched without a warrantby their probation officer or even by their parole officer

DR. CRAIG HEMMENS [continued]: or, in at least one instance, by a police officerwithout a warrant.Without even probable cause.Their status as offenders in the community-- thosewho are on probation or parole-- gave the police officerall the information that the officerneeded to conduct a warrantless search.

DR. CRAIG HEMMENS [continued]: Now there's some restrictions on thoseand I'm oversimplifying for the purposes of this discussion,but those decisions would seem to give probation and paroleofficer and police officers additional authority--great power over offenders in the community.And of course, we have more offenders in the communitythan we do in prisons or jails.

DR. CRAIG HEMMENS [continued]: That's the largest number of offenders-- thoseunder community supervision.So this impacts literally millionsof offenders-- police and probation officers havingthis additional authority.So research was done looking at what do states do.How have states responded, if you will,to the Supreme Court decision.Have they amended their statutes to allow

DR. CRAIG HEMMENS [continued]: these sorts of searches.The Supreme Court has said, in one case,that California had a statute whichallowed police officers to conduct a search of a paroleewithout probable cause.Well, did other states see that decision and say, gosh, maybewe'll pass a statute that would allow our police officers dothe same thing.So research looked at what state statutes allowed

DR. CRAIG HEMMENS [continued]: that and the research-- this was just done recently--found that, in fact, more States allow police officers as wellas probation and parole officers to conduct searcheswithout probable cause, without a warrant.So there is some research done thatstudies the impact of Supreme Court decisionson police practices.

DR. CRAIG HEMMENS [continued]: A question that is often asked when people study Supreme Courtdecisions is, OK, the Supreme Court has issueda decision that says the police can do this or the policecan't do that.Does this, actually, in fact, affect the police.Do the police stop doing what they're notsupposed to do or do they suddenly go,oh, we can all now do this.Do Supreme Court decisions translate or transfer down

DR. CRAIG HEMMENS [continued]: to the street, if you will, to the police.And there's been some research on that.Not enough, quite honestly.I think that's an area that wouldbe really interesting to focus on to see if Supreme Courtdecisions always do in fact get out of the courtroom,out of the classroom, and get filtered downto police practice.[In an ideal world, how would a Supreme Court decision transferdown to actual police practice?]

DR. CRAIG HEMMENS [continued]: Ideally, it absolutely would.The decision would be issued.Police departments who have lawyers, have legal staffwould train them on what it is they now can'tdo if a practice was limited.Or they would be trained on OK, you noware able to engage in this particular activity.

DR. CRAIG HEMMENS [continued]: So Supreme Court decisions, obviously,filter down to the police.But it's not clear if they filter downto police in all departments.Certainly, larger police departmentsin New York or Chicago have legal staffand they have regular in-service training for police officers.Regular updates on what is the law as the Supreme Courtor the Court of Appeals in their jurisdiction has said.

DR. CRAIG HEMMENS [continued]: But most police departments are very small.They could be rural departments.They don't have the staff.They don't necessarily have the resources to providethat kind of training.So it's not clear that what the courts say police canand cannot do always gets down to all of the police officersout there on the street.[How would a Supreme Court decision regarding policepractice be changed?]

DR. CRAIG HEMMENS [continued]: The way that the cases get to Supreme Court-- the SupremeCourt controls its docket in thatthey don't have to take any cases on appealif they don't want to hear.That said, they don't get to choose whatcases are appealed to them.So they don't really have a way to control the issues thatare brought to them.They choose amongst a group which they want to hear.

DR. CRAIG HEMMENS [continued]: So it really depends on people out in the field to litigate.So if the Supreme Court says the police can now do this,the police may start doing this-- whateverthat particular activity is-- searching someonewithout a warrant in a particular situation, perhaps.That happens, somebody is arrested and prosecuted,

DR. CRAIG HEMMENS [continued]: convicted, they will appeal their conviction.They may well appeal the convictionsaying, well, my conviction was based on evidence obtainedby the police when they did x.Well, the police should not be able to do x, thatviolates the Fourth Amendment.And then the courts have to determine whether, in fact,that is a violation.And so you may get an issue decided by the Supreme Court.

DR. CRAIG HEMMENS [continued]: It goes down.Police implemented practice.Its challenged and it works its wayback up to the Supreme Court.Not in a very quick manner.It may take years.But the law in that sense is very reactive ratherthan proactive and it develops on a case by case basis.[How important is theory in the practice of criminalprocedure?]

DR. CRAIG HEMMENS [continued]: I would have to say that theory and criminal proceduredo not particularly mix.There are theories of law and yousee more of that in the criminal law area.But when you think of theory and criminal justice,typically you think of theories of crime causation.Why do people commit crimes.Why do people desist from crime commission.

DR. CRAIG HEMMENS [continued]: But you really don't look at theory in criminal procedure.Criminal procedure is often referredto as doctrinal research because you studya doctrine, a particular topic.So the Fourth Amendment and search incident to arrest.There are some searches that may be conducted when somebodyis arrested without a search warrant,

DR. CRAIG HEMMENS [continued]: without probable cause.The court has simply said that the arrestgrants the police the authority to search the arrestee.Well, studies of how courts have implemented that decision--that's doctrinal research.So it's not really theory involved so much.[How important are research methods and methodologyfor a rigorous analysis of criminal procedure?]

DR. CRAIG HEMMENS [continued]: You do have methods in criminal procedure.It's very different from social sciencemethods, which are typically based on empirical research.Although obviously, you do have some qualitative research.But research on legal issues-- legal researchuses different databases.You look you're looking at court opinions.They essentially are the data points, if you will,

DR. CRAIG HEMMENS [continued]: and how you conduct that research how you look upa particular topic like search incident to arrestor the exclusionary rule and the good faith exception.There are different ways to look up that information,to do searches in databases, which exist,of all the court opinions.You have Supreme Court opinions, federal courts of appeal,

DR. CRAIG HEMMENS [continued]: state courts.So you can do research in those different jurisdictions.It typically is not as empirical as youwould have in social science research,although that doesn't have to be the case.You can absolutely do empirical quantitative studies.You can look at what statutes in the different statessay about a particular topic.

DR. CRAIG HEMMENS [continued]: You can look at what the 50 state courts havesaid about the exclusionary rule for instance--how they've applied what the Supreme Court has said.So you can do some limited empirical data,but you don't have a lot of multiple regressionor logistic regression going on.[Are there any major academic debates in the fieldof criminal procedure?]

DR. CRAIG HEMMENS [continued]: There are a number of debates in criminal procedureabout the meaning of the Fourth or the Fifth or the SixthAmendment.There really aren't debates about howthose are applied so much as it deals morewith the interpretation language of those statutes.And there's some debate about what a Supreme Court

DR. CRAIG HEMMENS [continued]: decision may mean.The justices don't always speak in one voice.As I said, we have multiple opinions.You may have a 5 to 4 decision with a very strong dissent.So it's not clear whether the majority opinion willcontinue to be the majority.But you don't really have that much debate about thatthe underlying structure of the Fourth or the Fifth or Sixth

DR. CRAIG HEMMENS [continued]: Amendments.The debate is about how to interpretthe rather vague language of the Fourth, Fifth, and SixthAmendments.Should that language be interpreted broadly,which tends to provide greater individual protectionsagainst government action, or should the Constitutionbe interpreted more narrowly, based just on the text,

DR. CRAIG HEMMENS [continued]: for instance.There are Supreme Court Justices whoare referred to as textualists, whosay we should simply interpret, say, the Fourth Amendment.What are the words in it and whatever those words are,they mean what they meant when they were written.The meaning of the Fourth Amendmentdoes not change over time.Other justices have argued that the meaning

DR. CRAIG HEMMENS [continued]: of the Fourth Amendment changes as our society changes.So that's probably the primary debate--is the difference in how you interpret language.As with other issues, both sides can make a pretty strong case.In the end, it really does come down to, I think,a person's personal philosophy, to some degreeabout how much power they believe the state should have

DR. CRAIG HEMMENS [continued]: and when there's a question, should weassume that the state does have the authority to do somethingor should we assume the state does not have that authority.And that often helps guide somebodyin how they would interpret an otherwise vague statement.[How do you think about the public impact of your ownresearch, and how do you assess the contribution of criminalprocedure research to society?]

DR. CRAIG HEMMENS [continued]: I think the impact of criminal justice research in general,on society, is unfortunately, rather limited.Oftentimes, the studies in criminal justicedon't get out to policymakers, to legislators--that sort of thing.I think criminal procedure is a little bitof an exception to that in that oftentimes, researchin criminal procedure does get to policymakers,

DR. CRAIG HEMMENS [continued]: does get to those who have the ability to implement decisions.I've done research, for instance,on how the Fourth Amendment applies to searchesof probationers and parolees and what state statutes allowpolice officers and probation and parole officers to do,vis-a-vis their folks on probation and parole.

DR. CRAIG HEMMENS [continued]: And that has been published in academic journalsand also in practitioner journals.For instance, the American Probationand Parole Association.And I've been contacted by folks in different Statesand we're going to use this researchto advocate for changing the state's statuteto allow a search or to not allow a search.So you do see, sometimes, research

DR. CRAIG HEMMENS [continued]: on the impact of Supreme Court decisionsand the empirical data that exists on whatthe Supreme Court has done.You do see the impact on practitionersbecause they're looking for guidance, sometimes,in how to structure a statute or how to change a policy.Research has been done on use of force by police, for instance,

DR. CRAIG HEMMENS [continued]: and when that leads to liability and police departments,at times, to change their training on liability.Change their training on how police officersengage in the use of deadly force and nondeadly force.So I think with criminal procedure,again, because criminal procedure deals with the police

DR. CRAIG HEMMENS [continued]: and how the police interact with citizens,there is a direct benefit from that research to practice.So I think it can and has had an impact on the daily practiceof the police.