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Table of Cases ……... 2

Statement of problem ……... 3

Scope and Object of project ……... 3

Research Methodology ……... 3

Introduction ……... 4

Features of Due Process Model ……... 6

Features of Crime Control Model ……... 7

Differences between the two models ……... 8

Development of the Models ……... 9

What have we achieved? ……... 13

Shift from Due Process Model to Crime Control Model ……... 15

Conclusion ……... 24


Name of the Case Citation

A.K. Gopalan v State of Madras AIR 1956 SC 27: 1950 SCR 88
Adamson v California (1947) 332 US 46
ADM Jabalpur v Shivakant Shukla 1976 AIR 1207, 1976 SCR 172
Bachan Singh v State of Punjab AIR 1980 SC 898
Biven v New York 388 US 41: 18 L Ed 2d 1040 (1967)
Bivens v Six Unknown Name Agents (403) US 388: 29 L Ed 2d 619 (1971)
E.P. Royappa v State of Tamil Nadu (1974) 4 SCC 3: AIR 1974 SC 555
Harris v New York 401 US 222: 22 L Ed 2d 1(1971)
Jagmohan v State of U.P. AIR 1973 SC 94
K. K. Kochunni v State of Madras and Kerala AIR 1960 SC 1080: (1960) 3 SCR 887
Kirby v Illinois 406 US 682 (1972)
Lego v Twomey 404 US 477
Lochner v New York 198 U.S. 45 (1905)
Malak v State of Punjab AIR 1987 SC 760
Mallory v US 354 US 499: I Led 2d 1479 (1957)
Maneka Gandhi v Union of India (1978) 1 SCC 248: AIR 1978 SC 597
Miranda v Arizona 16 L Ed 2d 694: 384 US 436 (1966)
Mrs. Neelam Katara v Union of India ILR (2003) II Del 377
Munn v Illinois 24 L Ed 77: 94 US 113 142 (1876)
Raj Bala v State of Haryana 2015 (2016) 1 SCC 463
Rustom Cavasjee Cooper v UOI (1970) 1 SCC 248: AIR 1970 SC 564
Sevika Perumal v State of Tamil Nadu AIR 1991 SC 1463
Shivaji Sahabrao Bobade v. State of Maharashtra 1973 AIR 2622, 1974 SCR (1) 489
State of Maharashta v Champa Lal AIR 1981 SC 1675
State of Maharashtra v Champalal Punjafishah AIR 1875, 198, SCR (1) 299
Suleman Bhai Ajmeri v State of Gujarat (2014) 7 SCC 716
US v Wade 388 US 218: 18 Led 2d 1149 (1967)
US v Ash 413 US 300 (1973)


Today, the criminal justice system has been paralysed by the heavy number of cases pending; umpteen
accused languishing in the jails across country without trial; unnecessary delays in the investigation and
trial; and faith of general public diminishing in the system. India has been following Due Process
Model after it was observed to be a part of the Constitution of India in the Maneka Gandhi Case. And
with the passage of time many dimensions have been added to this.
The criminal justice system is a complicated system and is constantly changing due to new laws and
awareness of crimes. It aims at apprehension of criminals and securing peace and tranquility in the
society. Maintaining balance between individual rights of accused and group rights of society as a
whole has been the biggest dichotomy. But keeping this aside, the questions that are to be answered

Can justice be served by a process that is more concerned with resolving controversies than finding the
ultimate truth?
Can a system which puts more emphasis on finding evidence through manipulation and deception than
truth encourage justice?
Is it possible for people with limited resources to enjoy the same access to legal services as do wealthy


The purpose of this paper is to research both the Due Process and Crime Control Models. Both of the
models have proven to be well known and used in different countries. Both of the models named above
are very complex systems. The purposes of the two models are to help maintain safety is society, as
well as protect the rights of the suspect in various situations and scenarios. After discussing features of
each of the model, focus would be on analyzing which of the two models is best for the Indian society.
The objective is to deduce the model which could provide answers to the failure of criminal justice
system in today’s world in terms of its inability to control crime.


The research methodology employed in this paper is doctrinal in nature. Various judgments, journals
and statutes have been relied upon.


Criminal justice system works only for the society, aiming at the fulfillment of the object of the state to
protect its subject from the criminal activities and ensure their safety. So, it is essential to know what
general public expects from any criminal justice system. I interviewed a number of my friends who
didn’t have any legal knowledge of how things have worked or work in legal parlance. The questions
that were put to them were simple, including:
 What is more important- right of a person who is accused of any offence or safety and security
of society as a whole?
 Finding of truth or finding of evidences?
 Rights of the accused or rights of the victim?

After categorizing their answers, I put those answers under two heads that represented two different
thoughts. Head ‘one’ believed that crime is bad for the society and therefore every possible attempt
should be made to ensure that these criminals are taken off the road and security is maintained in the
society. They should not be given any rights and punished so as to set an example that could deter
others from committing such acts. To them what is more important are not the rights of the accused but
the safety and security of the society.

Head ‘two’ on the other hand, being philanthropic, and thinks of the rights of those also who are
accused of any offence and believes that they should be given a fair chance to prove their innocence.
Basically, they believe in the Constitutional Rights of the accused. He believes that survival in a
country where people have the fear of losing their rights arbitrarily would be more animal like.

It was after listening to their answers I told them about the two model that were named by Herbert
Pecker1 as the two models of criminal justice system, the former one being crime control model and
latter one being due process model. The crime control theory is often associated with social
conservatism. In this model, it is more important to protect peace in the society. The due process theory
in contradistinction to the crime control model focuses more on the individual human rights. It ensures
that the individuals have a fair trial to defend themselves in the court.

While Herbert Pecker talked about two models, there were other theorists who argued that there were
several other models. Michael King2 (1981) who studied the criminal justice system argued that there
were four more models other than due process model and crime control model, which were, medical
model, bureaucratic model, power model and status passage model.

King's third model, which Packer did not include in his theory, i.e. the medical model, is about
rehabilitation which highlights that some criminals need treatment for their actions and be evaluated
and treated in the correct manner to prevent them from conducting further criminal activities. This

‘Two Models of Criminal Justice’, 113 U. Pa. L. Rev. 1.
‘The Framework of Criminal Justice’, ISBN: 0709904304, 9780709904304, Croom Helm Publisher, 1981.

model is essential in identifying and reducing crime as it tackles the issues why criminals commit crime
and how they should be punished depending on the mental ability.

The bureaucratic model performs the function of management of crime and criminals. It believes in
independence from political considerations; speed and efficiency; importance of records, minimization
of conflict, expense; and economical division of labour. Status passage model plays the role of
denunciation and degradation of the model through public shaming. In this the court values reflect the
community values. The last power model features the maintenance of class domination by
reinforcement of class values, alienation of defendant, deflection of attention from the issue of class
conflict and the differences between judges and judged.

However, King's models do create some criticisms as it may cause further pressure on the criminal
justice system to implement rules and procedures. Overall King's extended models have highlighted
that there are issues with Pecker's work and the models for the criminal justice system should be
enlarged and taken into greater consideration. However, as these are only models and have not been put
into place, it cannot be said to be more effective than Packer's theory as neither of them have been
placed into action.

Liberal proponents of the due process model believe that the crime control model is too harsh and
pursues the ideology of a police state. The arguments of the conservative supporters of the crime
control model complain that the due process model protects the guilty at the expense of innocent law
abiding citizens. However, we must recognize that we will probably always be confronted with
ideological conflict from each end of the philosophical and political spectrum.


The due process model is the understanding that a person who has come into contact with one of the
criminal agencies cannot and should not have his rights rejected without appropriate legal measures.
Therefore, any individual who is being or has been charged with a crime, has several rights which the
criminal agencies have to uphold as the individual is protected under human rights which could be said
to co-inside and relate to the due process model. Pecker describes this model as having less faith in the
criminal agencies, such as the police, and believes that among few criminal cases mistakes can happen
and additionally, there is a chance of agencies acting corruptly or dishonestly. For that reason, this is
why Pecker believed that this model is useful as it limits the coercive powers of the criminal agencies
and if there is an occurrence of any mistake or corruption, an individual has the right to defend himself.
Therefore, the main aim of this model is to establish a system that an individual is innocent until proven
guilty in court.

The basis of the due process model is formal structure. It reduces many errors that occur during the
investigation, arrest, evidence gathering, and trial. It does not support much of the evidence that is used
in many criminal trials, and there are many reasons and factors for this. Basically, this model criticizes
every type of evidence except definitive physical evidence that cannot be disputed. The object of
looking at evidence in it is deciding what information may be incorrect, falsified, or coerced from an
individual. This has occurred on many occasions when other criminals have testified against the
suspect, because they may be rewarded with time off of their sentence or other things. Since the main
goal of the due process model us to reduce mistakes that can place an innocent person in prison, the
process is very slow.

Pecker's due process model is a counterproposal to the crime control model. It consists of the following

1. The most important function of criminal justice should be to provide due process or
fundamental fairness under the law.
2. Criminal justice should concentrate on defendants' rights, not victims' rights, because the Bill
of Rights expressly provides for the protection of defendants' rights.
3. Police powers should be limited to prevent official oppression of the individual.
4. Constitutional rights aren't mere technicalities; criminal justice authorities should be held
accountable to rules, procedures, and guidelines to ensure fairness and consistency in the justice
5. The criminal justice process should look like an obstacle course, consisting of a series of
impediments that take the form of procedural safeguards that serve as much to protect the factually
innocent as to convict the factually guilty.
6. The government shouldn't hold a person guilty solely on the basis of the facts; a person should
be found guilty only if the government follows legal procedures in its fact‐finding.


Crime Control Model condemns individuals for doing an action which is seen as criminal. Packer
describes this model as prioritizing in the convictions of individuals who have committed a criminal act
and not waiting for the courts to decide. In his theory, Pecker believes that this model is concentrated
on the conviction and would risk the conviction of innocent people to achieve its goal. This model can
therefore be said to be the scheme set to punish people and make a difference towards society in
reducing crime and showing the public that by these arrests and convictions, it may show the criminal
justice system being effective and beneficial to society.

The idea of this model is to decrease crime in all areas; for this to be done criminal conduct needs to be
drastically reduced. One of the problems that arise in this model is directed at law enforcement
officials. If people commit crimes and get away with them, then it is likely to create a higher crime rate
because there are chances to be more followers. It directs more attention in investigating, screening
people, establishing guilt, seeking harsher punishments for individuals who have committed crimes.

For the crime control model to work appropriately, the processes must be efficient. Higher arrest and
conviction rates need to be seen, as a way of deterring other people from committing crimes. The
investigation and arrest process needs to be expedient, so that fewer resources are used on each client.
The main purpose of this model is for there to be enough evidence gathered that the suspects pleads
guilty to the charges, and there is no need to waste time, money, or effort on a trial that may last for a
unknown amount of time.

The following assertions are the key concerns of the crime control model:

1. The repression of crime should be the most important function of criminal justice because
order is a necessary condition for a free society.
2. Criminal justice should concentrate on vindicating victims' rights rather than on protecting
defendants' rights.
3. Police powers should be expanded to make it easier to investigate, arrest, search, seize, and
4. Legal technicalities that handcuff the police should be eliminated.
5. The criminal justice process should operate like an assembly‐line conveyor belt, moving cases
swiftly along toward their disposition.
6. If the police make an arrest and a prosecutor files criminal charges, the accused should be
presumed guilty because the fact‐finding of police and prosecutors is highly reliable.
7. The main objective of the criminal justice process should be to discover the truth or to establish
the factual guilt of the accused.


Basis Due Process Model Crime Control Model

Goal Preserve individual liberty- Repress Crime- sole aim of
the rights of the accused are crime control model is to
given due weightage since he reduce crime and thus it
does not cease to be a human. curtails the liberty of the
A fair chance is given to him person accused of any crime.
to prove his innocence and
preserve his life, liberty and
Value Reliability- the accused gets a Efficiency- this set up appears
fair opportunity of proving his to be more efficient since the
innocence and the prosecution prosecution’s main aim is to
has to prove his guilt beyond find the truth and prove the
reasonable doubt. The fairplay guilt of the accused. The cases
between the prosecution and move like a conveyor belt
defence makes this system towards their disposal.
reliable and trustworthy.
Process Adversarial- the two parties, Administrative or
i.e. the Prosecution and the inquisitorial- in this system,
Defence, play the major role the court or a part of the court
in the proving the guilt or the is actively involved in
innocence of the accused. The investigating the facts of the
judge merely sits like an case. There is thus more
impartial umpire and decides chance of accused getting
the case based upon the punished and increased crime
evidences. rate.
Major Decisional Point Courtroom- the guilt of the Police, pre-trial processes-
accused is proved in the court the police is given many
of law where the evidences of powers to investigate into the
the both sides are produced guilt of the guilt. The
and weighed and then the investigation report by the
judgment is pronounced. police is taken to be true. And
thus, most of the times based
upon the police report, the
accused is held guilty.


The 39th chapter of King John’s Charter of Liberties3, popularly referred to as the ‘Magna Carta’ of 15th
June 1215, or as the original Runnymede Charter, and the 29th Charter of the more popularly known
version subsequently reissued by Henry III in 1225, is said to have conferred upon a subject the right to
trial by due process of law. The 39th chapter of King John’s Charter of Liberties provided that “no
freeman shall be arrested or detained in prison, or deprived of his freehold, or outlawed or banished,
or in any way molested: and we will not set forth against him, nor send against him, unless by the
lawful judgment of his peers and by the law of the land”.

The idea animating the Magna Carta has been compared in relatively recent times to the “supremacy of
the law” and the “rule of law”. Magna Carta had a profound influence on the development of
constitutional law in the British colonies. The rights guaranteed under Magna Carta and Charter of
Liberties have been accepted as the foundation stone for Due Process in US. In 1877, it was iterated by
the US Supreme Court that the ‘due process’ clause is derived from the Magna Carta4.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.”5

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”6

The words ‘without due process of law’ appearing in these amendments have transformed the
American Constitutional law. This expression has added malleability and elasticity to the US
Constitution, enabling it to meet the necessities felt at the times. Furthermore, the due process model
does not limit itself to the Fourth Amendment. The police must also consider the individual rights of
the accused in respect to many of the individual rights guaranteed by the Bill of Rights. For example,

The Charter of Liberties, also called the Coronation Charter, was a written proclamation by Henry I of
England, issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the
treatment of nobles, church officials, and individuals. The nineteenth-century historians Frederick
Maitland and Frederick Pollock considered it a landmark document[1] in English legal history and a forerunner
of Magna Carta.
Munn v Illinois, 24 L Ed 77: 94 US 113, 142 (1876).
The 5th Amendment to the US Constitution ratified on 15-12-1791.
Section 1 of the 14th Amendment to the US Constitution ratified on 09-07-1868.

1) a right to be assumed innocent until proven guilty,
2) a right against arrest without probable cause,
3) a right against self-incrimination,
4) a right to an attorney, and
5) a right to fair questioning by the police.7

Of course, this is just a small sampling of the individual rights guaranteed by the United States
Constitution and they are continually subject to change as interpreted by the courts. Where does it
end? Do the rights of the individual outweigh the rights of the many? Proponents of the due process
model argue that the rights of the one in fact represent the rights of the many. However, everyone does
not always view the claims of victory by due process model proponents as just or moral for that matter.
American jurisprudence is grounded in the philosophy set forth by Sir William Blackstone: “It is better
that ten guilty escape than one innocent suffer”.8 The American justice system’s need for an effective
strategy to combat crime has been debated for years. In fact, close examination reveals that the core of
the controversy and conflicting philosophies are fundamentally liberal and conservative and thus
political in nature. Consider the goals of the American Criminal Justice system for a
moment. Primarily, the goals can be categorized into two very distinct missions: (1) the need to
enforce the law and maintain social order, and (2) the need to protect people from injustice.9 A cursory
examination would appear to reflect that the two goals represent a common and consistent
ideology. However, the two goals are generally considered to be in conflict with each other. The first
goal is referred to as the crime control model and the second goal is the due process model.

The US Supreme Court has crafted several procedural safeguards on the basis of this due process class.
It has held that the statements obtained from a person while in police custody are not admissible and
laid down procedures that would effectively implement the 5th Amendment which prohibits a person
from being compelled to be a witness against himself. The accused has the right to remain silent. The
two additional safeguards not mentioned are that a person has the right to the presence of an attorney
during questioning, and poor has a right to a lawyer without charge. These safeguards were laid down
in a Supreme Court popular decision10 called the “Miranda warning”11. The decision has been criticized
as placing a premium on the rights of the offenders at the expense of victims of a crime.12

Frank Schmalleger, Criminal Justice Today, fifth edition, Prentice Hall 1999, page 27.
Brandon A. Perron, Uncovering Reasonable Doubt, Morris Press 1998, page iii.
Kenneth J. Peak, Justice Administration, third edition 2001, Prentice Hall, page 14.
Miranda v. Arizona, 16 L Ed 2d 694:384 US 436 (1966).
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You
have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the
rights I have just read to you? With these rights in mind, do you wish to speak to me?”
See, Fred E. Inbau, “Over-Reaction: The Mischief of Miranda v Arizone” (1982) 73 Journal of Criminal Law &
Criminology 797; Gerald M. Caplan, “Questioning Miranda” (1985) 38 Vanderbilt L Rev 1417; Stephen J.
Schulholfer, “Reconsidering Miranda” (1987) 54 U Chi L Rev 435.

In India, Due Process Model has an interesting and chequered history. From the emphatic denial of
‘due process’ in A.K. Gopalan v. State of Madras13 (Gopalan) to its acceptance in Maneka Gandhi v
Union of India14 (Maneka Gandhi), the court had traveled a great judicial distance in a relatively short
Even after the lengthy debates of the constitutional assembly presided over by Dr. B. R. Ambedkar, the
clause ‘due process’ was deleted from the draft clause 1215 and it was substituted by the expression,
‘procedure established by law’. The net result was:
“No person shall be deprived of his life or personal liberty except according to procedure established
by law”16. The expression ‘due process’ was dropped on the grounds that it didn’t have a precise
meaning and would introduce an element of uncertainty and could possibly give the judiciary a power
to veto Parliament and State Legislatures which consist of people’s representatives elected by and
accountable to the electorates.

Soon after the Constitution came into force on 26 th January, 1950, the Supreme Court had to deal with
its first landmark decision, the famous Gopalan case. This case was heard by a bench of six judges and
involved a challenge of preventive detention. India has perhaps the only constitution whose chapter on
“Fundamental Rights” contains a provision permitting the arrest and detention of a man in prison
without trial on the apprehension that he would be a threat to security.

In this judgment, Supreme Court decisively rejected the application of the due process clause pointing
out that as long as a person was detained according to the procedure established by law, he could not
challenge his detention. Only one judge, Fazl Ali, observed that preventive detention laws could
amount to deprivation of Personal liberty and violate the right to move freely under article 19 (1) (d)17.

After the Gopalan case, the articles 19 and 21 were treated as separate and distinct fundamental rights.
The correctness of this view was perhaps doubted for the first time in 1960 by Subba Rao J. 18 He
pointed out that legislation could be struck down if it interferes with the personal liberty and rights of
the citizen. However, unfortunately in this judgment he held the judgment in Gopalan case to be
binding on the court.
Gopalan case was overruled in Rustam Cavasjee Cooper vs Union of India19 (Bank Nationalization
Case) wherein the eleven judge bench held that various fundamental rights were not to be considered in
isolation but were interdependent. The Supreme court for the first time introduced the object and effect
test, which proved to be the foundation of introducing procedural due process in Maneka Gandhi case.

AIR 1956 SC 27: 1950 SCR 88.
(1978) 1 SCC 248: AIR 1978 SC 597.
No person shall be deprived of his life, liberty or property without due process of law nor shall any person be
denied the equal treatment of the laws within the territories of the Union.
Article 21, the Constitution of India.
Para 73 and 74.
K.K. Kochunni vs State of Madras and Kerala, AIR 1960 SC 1080: (1960) 3 SCR 887.
(1970) 1 SCC 248: AIR 1970 SC 564.

Maneka Gandhi was the first case after the emergency period and is now accepted as the starting point
of the introduction of the due process clause. The concept of arbitrariness, first articulated in E.P.
Royappa vs State of Tamil Nadu20 , became firmly established in the Maneka Gandhi case. With the
conversion of “Procedure established by Law” to mean the same as “Due process of Law”, the Supreme
Court emphatically rejected the theory of original intent and embraced a more organic and
contemporaneous view of our constitution.

This was the most significant ruling regarding the fundamental rights after the 1966’s most disreputable
judgment in ADM, Jabalbur vs Shivakant Shukla21, where Supreme Court by majority of 4:1 held that a
person detained without trial under the dreaded Maintenance of Internal Security Act (MISA) could not
question his detention on any ground whatsoever. Though later, the only desenting opinion of H.R.
Khanna J., which cost him the chief justiceship of India, was declared the law of the land.

In India, after the Maneka Gandhi case not only the substantive due process is important but also the
procedural due process. Procedural due process asks the question of whether the government’s
deprivation of a person’s life, liberty or property is justified by a sufficient procedure. It looks to
whether there is sufficient substantive justification, a good enough reason for such deprivation.
Substantive due process, by contrast, asks whether the government has followed the proper procedures
when it takes away life, liberty or property.
Substantive due process was first used in US to protect economic liberties in the case of Lochner v New
York22 where the Supreme Court struck down a struck down a New York law that limited the maximum
number of hours that bakers could work.
Substantive due process has been the basis for expanding the scope of Article 21. All these judgments
are illustrative of how the court has adapted itself to social, economic, and political changes in the

(1974) 4 SCC 3: AIR 1974 SC 555.
1976 AIR 1207, 1976 SCR 172.
198 U.S. 45 (1905).


Imagine, “A murder was committed and for ten long years the only thing the people were witnessing
was introduction of evidences in the court of justice. Inside the courtroom, the due process of meeting
‘so called’ justice was being followed while the justice itself surreptitiously crept outside the window
because it was put to shame. Everyone knew the truth except the lady with her blindfolded eyes who
still wanted ‘proof beyond reasonable doubt’. The only thing left was repulsion in the minds of people
for the prosecution and defence attorneys for their never ending lust for winning and saving their client
and not the truth. So, briefly, the drive for justice became the war for winning, because for them it was
their job to win by whatever legal and ethical means they had within their power. So, now it has
become fair to challenge the ethics of a legal system that places higher value on winning than on truth
seeking and the due process model that became a system where lawyers spend more time in avoiding
truth than on seeking it. Like the example giving by Peter Murphy in his Practical Guide to Evidence
(2000) of a judge in the English courtroom who frustrated by the evidence asked a barrister, “Am I
never to hear truth?” To which the barrister answered, “No my lord, merely the evidence.”

In India, the right to speedy trial has now been recognised as fundamental right enshrined in Article 21
of Constitution of India. Speedy trial is essential in order to gain public confidence in criminal justice
system. It plays very crucial role in prevention and control of crime. In State of Maharashtra v.
Champalal Punjaji Shah23 the court observed that: “The right to speedy trial is implicit in the right to
fair trial which has been held to be part of the right to the life and liberty guaranteed by Article 21 of
the Constitution. A delayed trial is necessarily an unfair trial if nothing is shown. . .”
“In an adjudicatory system, whether inquisitorial or adversarial, an expected life span of a case is an
inherent part of the system. No one can expect a case to be decided overnight. However, difficulty arise
when the actual time taken for disposal of the case far exceeds its expected life span and that is when
the researchers say there is delay in dispensation of justice. A scanning of the figures would show that
despite efforts being made at various levels, the gap between the expected and actual life span of the
cases is only widening.”24 An alarmingly large number of men, women etc. charged with offences are
put behind bars for years awaiting trial in courts of law. They languish in prisons for years to come due
to faulty procedure. Subsequently, it turns out that many innocents suffer, if we observed rate of
acquittals. This is against the fundamental principle of Anglo-Saxon criminal jurisprudence, which
states that “ten guilty may go unpunished but one innocent should not suffer.”

Speedy trial of cases is also the responsibility of the prosecution. The prosecution does not face the
problem of disappearance of witness, evidence etc. Delay may occur at any stage of case, which causes
problems of prosecution. The maxim, ‘interest republicae ut sites finis litium’, which means that the
interest of the state requires that there should be an end to litigation gets breached in such cases.

AIR 1875, 198, SCR (1) 299.
Y.K. Sahharwal, Chief Justice of India, Delayed Justice, Lecture delivered on 25th July, 2006, published in SCJ
2006, pp.10-37, at p.11.

In India, life of the case is generally bigger than the life of the accused or victim. The case prolongs
even if the evidences are lost. With nearly 30 million criminal cases pending in the system (the annual
capacity of which is only half that number), and with another 10 million or more cases being added
every year, whatever is left of the system is bound to collapse completely unless some radical
alternatives are adopted urgently. The over- burdening of cases has brought the justice system to the
verge of exploitation with people losing their faith in it.

The concept of Plea Bargaining which has proved to be successful in the US has not seen much
progress in India. Even after a decade of its introduction, it remains a dead letter not invoked by those
caught in the system.
There have been many cases like Aarushi Talwar, where even after almost a decade, people hold a
doubt whether justice is served or not. If at all accused were not guilty, was imprisonment for four long
years a due process of justice. And if they were there evidences, where were they lost.
It goes without saying that we have gained a lot with the due process model. We have given right to
dignity to many who were caught in one or the other criminal trial based on the presumption of
innocence. But it is also true that we have also lost a lot. Many of those who were in need of the due
process model were not rightly served.

The way criminal justice system is handled today puts a question mark on the securing life and property
because it hardly serves any purpose. It doesn’t deter criminals, because the delay and uncertainties
involved in the process has helped them maintain their faith in it. It has rendered the system vulnerable
to corruption and manipulation, endangering the basic rights of the innocent citizens. And in the end,
the real victim is compelled to find extralegal methods to find justice. And not the subjects, the state
has a lot more to suffer, increasing costs, over burdening courts without commensurate benefits in
Laws are made for the society to make sure that it is maintained in order. So, ideally, any law that is
enacted should sound reasonable to a common man and ensure that his faith is maintained in the
system. And the system here not only means judicial system but also, the legislature and the executive.
In an ideal world, the due process model would be the model of choice, because it helps keep the rights
of individuals intact, as well as serving its purpose in the criminal justice system. Both the crime
control model and the due process model have a positive side as well as a negative.


In the US, the Supreme Court has taken retreat from the due process model in Kirby v Illinois25 and
Harris v New York26. After the Miranda case, the judges were criticized for coddling criminals and
handcuffing the police and also blamed for breakdown of law and order. The decisions like Miranda,
which received major publicity, were strongly opposed by public opinion. The Omnibus Crime Statutes
of 1968 and 1970 intended to dilute certain decisions of the US Supreme Court. The three sections of
1968 bill were against the holdings of Mallory v US27, Miranda v Arizona28 and US v Wade29. The
Senate Judiciary Committee found the presence of casual relationship between the procedural reforms
and increasing crime rates and opined that it has hampered the effort of law enforcement official.

The Miranda decision was criticized by the law enforcement officials for its interference with the work
of apprehending criminals. Some of the judges such as Byron, White Harlan, Berger etc were
dissatisfied with the too liberal norms set by their brother judges. Berger J, in his dissenting opinion in
Bivens v Six Unknown name Agents30, emphasized the need for preferring security value. Similarly, in
Biven v New York31 felt that the country was realizing that the evidence of crime was difficult to secure.
The court also showed reference to crime control model in certain cases also32. It has been rightly
“In the beginning the Court tipped the balance in favour of criminals (Due Process Model) but criticism
from different quarters forced it to modify its approach slightly in certain areas. The message is clear
that …. The societal interest in security cannot be overlooked.”
Thus, it becomes clear that the Supreme Court in the US has made a retreat from due process model.

With so much importance given to the rights of the accused, it is the time when the confidence of
victims in the system is to be restored. Therefore, the system must confer certain rights on victims to
enable them to participate in the proceedings, including the right to be impleaded and to engage an
advocate in serious offences, the right to track the progress of the proceedings, the right to be heard on
critical issues and to assist the court in the pursuit of truth. There is also a need to secure the right of
victim to seek and receive compensation for injuries suffered including appropriate interim relief
irrespective of the fate of the proceedings.

Even Supreme Court of India has, lately, through its judgments favoured crime control model. During
the pre- Maneka Gandhi period, the courts were in favour of Crime Control Model and observed that

406 US 682 (1972). The Court held that the Sixth Amendment right to counsel did not attach during a pre-
indictment identification.
401 US 222: 22 L Ed 2d 1(1971).
354 US 499: I Led 2d 1479 (1957).
Supra Note 9.
388 US 218: 18 Led 2d 1149 (1967).
(403) US 388: 29 L Ed 2d 619 (1971).
388 US 41: 18 L Ed 2d 1040 (1967).
Lego v Twomey, 404 US 477; US v Ash, 413 US 300 (1973).

law would even be valid even if provided that the cook of Bishop of Rochester boiled in oil or if it
allowed the execution of death sentence. The constitutionality of death sentence was upheld in
Jagmohan v State of U.P.33 where the court highlighted the deterrent effect of capital punishment. The
judges were supposed to give reasons for not awarding death sentence to a convict.

However post- Maneka period witnessed a number of liberal criminal holdings like right to free legal
aid, speedy trial, dignified treatment etc. But again in the case of Bachan Singh v State of Punjab34
significance of crime control model was highlighted by Sarkaria J. He made the following observation:

“Many judges- especially in Britain and the United States, where rising crime rates are the source of
much public concern- have expressed grave doubts about the wisdom of the view that reforms ought to
take priority in dealing with the offenders.”

In the area of punishment the Supreme Court has made a clear shift from due process model to crime
control model. In the cases like Malak Singh v State of Punjab35 and State of Maharashta v Champa
Lal36 the benefits of liberal judicial interpretation have been denied to the accused. While refusing to
give death penalty in Mahesh v State of M.P.37, the court stated that to give lesser punishment for an
accused is to render the justicing system of the country suspect. The common man will lose faith in

Similarly in the case of Sevika Perumal v State of Tamil Nadu38 the court stated that the undue
sympathy for the accused for imposing inadequate sentence would cause more harm to the judicial
system and undermine public confidence. In the case of Dhananjoy Chatterjee v State of West Bengal39,
the court observed, “the measure of punishment in a given case must depend upon the atrocity of the
crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to the society's cry for justice
against the criminals. Justice demands that courts should impose punishment fitting to the crime so that
the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the
criminal but also the rights of the victim of crime and the society at large while considering imposition
of appropriate punishment.”40

The cases show a shift from due process model and this is well supported from the following

AIR 1973 SC 947.
Bachan Singh v State of Punjab, AIR 1980 SC 898.
AIR 1987 SC 760.
AIR 1981 SC 1675.
AIR 1987 SC 1346.
AIR 1991 SC 1463.
1994 (1) ALT Cri 388, 1994 (2) BLJR 1231, (1994) 1 CALLT 28 SC, JT 1994 (1) SC 33, 1994 (1) SCALE 48,
(1994) 2 SCC 220, 1994 1 SCR 37, 1994 (2) UJ 106 SC.
Ibid Para 15.

“Be that as it may, generally speaking the Supreme Court did a lot of soul-searching in the manner of
its approach towards punishment. It may be correct to say that it has moved towards crime control
model rather than due process model. The courts have often quoted concern for societal security makes
it to abandon the much benign rehabilitation and to embrace retribution as aim of punishment.”41
Consider the various methods employed to pursue the crime control model. The argument in support of
such a philosophy and its methods is rather compelling. Because at the end what the subjects want is
security. The more attention state gives to the rights of the accused, the more justice gets delayed and
people lose their faith in the criminal justice system.

The population that law enforcement officials are serving may affect the crime model that they decide
to use. Areas with high crime rate may be better served by using the crime control model, whereas
areas with less crime may be better served by the due process model. Along with the population, the
type of crimes that are being committed may also be a factor in which model is chosen. Areas that
suffer from drug trafficking and violence may be best served by using the crime control model, whereas
areas that suffer from trespassing and burglaries may be best served by using the due process model.
The crime control model implies that law enforcement and prosecuting attorneys act promptly to
allegations and investigate them more thoroughly at a later time, but the due process model requires
careful consideration in each and every case, prior to arresting individuals.

Certain issues which inspire the need of shift

Malimath Committee Report recommended various reforms in the criminal justice system keeping in
mind the current difficulties that have been threatening it:

Standard of proof:

The reasonable doubt standard resists exact measurement, and varies with different perception of
different judges. Descartes once said “If we try to doubt everything, we shall find that there is nothing
of which we can be certain except our ability to doubt.” The word reasonable is designed to exclude
such doubts as are merely philosophic or fanciful; therefore the doubt in the criminal law standard must
be a reasonable one. To quote Lord Denning “If the evidence is so strong against a man as to leave only
a remote possibility in his favour, which can be dismissed with the sentence” “Of course it is possible,
but no in the least probable", the case is proved beyond reasonable doubt but nothing short of that will
suffice.” Prof. Wigmore in his monumental work on the Anglo-American system of evidence says,
“Reasonable doubt standard was invented for no other reason than that a jury may understand it.
Therefore, in criminal cases, the rule had developed that the measure of jury's persuasion had to be
beyond a reasonable doubt. The attempt to define these qualities of persuasions has many difficulties.”
Wigmore further said “The truth is that no one has yet invented or discovered a mode of measurement
for the intensity of human belief. Hence there can be as yet no successful method of communicating

K. N. Chandrasekharan Pillai & Jyoti Dogra Sood, “Supreme Court: In the Retrospect and Prospect” 48 JILI 19

intelligently to a jury a sound method of self-analysis for one's belief. If this truth be appreciated, courts
will cease to treat any particular form of wards as necessary or decisive in the law for the purpose; for
the law cannot expect to do what logic and psychology have not yet done.”

There is no provision in the Indian Evidence Act prescribing a particular or a different standard of proof
for criminal cases. However, the standard of proof laid down by our courts following the English
precedents is proof beyond reasonable doubt in criminal cases. In several countries in the world
including the countries following the inquisitorial system, the standard is ‘proof on preponderance of

There is a third standard of proof which is higher than ‘proof on preponderance of probabilities’ and
lower than ‘proof beyond reasonable doubt’ described in different ways, one of the being ‘clear and
convincing’ standard. The Committee after careful assessment of the standards of proof came the
conclusion that the standard of ‘proof beyond reasonable doubt’ presently followed in criminal cases
should be done away with and recommended in its place a standard of proof lower than 'proof beyond
reasonable doubt' and higher than the standard of 'proof on preponderance of probabilities.'

It was in Shivaji Sahabrao Bobade v. State of Maharashtra42 that Justice Krishna Iyer warned about our
undue adherence to the fundamental principles. He said: The dangers of exaggerated devotion to the
rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals
are always good regardless of justice to the victim and the community, demand special emphasis in the
contemporary context of escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and
degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go
but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice will then break down and lose credibility with the

Justice Krishna Iyer was so perturbed by the strict adherence of our trial Judges to the principle that he
went to the extent of advising them thus:

“We must observe that even if a witness is not reliable, he need not be false and even if the police have
trumped up one witness or two or has embroidered the story to give a credible look to their case that
cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused.”

Presumption of Innocence:

The presumption of innocence is a direction to officials how they are to proceed, not a prediction of
outcome. The presumption of guilt, however, is basically prediction of outcome. The presumption of
innocence is really a direction to the authorities to ignore the presumption of guilt in their treatment of
1973 AIR 2622, 1974 SCR (1) 489.

the suspect. It tells them, in effect, to close their eyes to what will frequently seem to be factual
probabilities. Therefore, presumption of guilt is descriptive and factual in the crime control model
whereas presumption of innocence is normative and legal in the justice model.43 The presumption of
innocence is a fundamental principle of any civilized criminal justice system. Obviously, the distinction
between civil and criminal liability can never be narrowed or overlooked of proof is in fact relevant to
support the presumption of innocence. A man is presumed to be innocent until proved to be guilty.

Protection of the innocent is as much the duty of the society. The protection of the innocent is the very
basis of the Constitutional Articles 20 and 21. The innocent is entitled to the highest normative
consideration. The moment the normative standards of proof are substituted by preponderance of
probabilities, there would be a violation of the basic human rights to which our Constitution is

Although basic principles to the rule of law — the presumption of innocence, the importance of a fair
trial and guaranteeing the rights of individual accused — remain constant in grave situations, as for
instance in a heinous or terrorist related situation is another area which needs to be reconsidered so as
to enable the concept of Rule of Law strong enough, or elastic enough to devise means which would
help maintain a balance of justice.

Right to silence:

As a state party to the International Covenant on Civil and Political Rights, India is obliged to respect
Article 14(3)44 which refers to various "minimum guarantees" and states that everyone has a right not to
be compelled to testify against himself or to confess guilt.

General Comment 13 of the Human Rights Committee on Article 14 of the ICCPR points out that in accordance
with the presumption of innocence, the rules of evidence and conduct of a trial must ensure that the prosecution
bears the burden of proof throughout at trial. Article 67 (l)(i) of the ICC Statute also lays down minimum guarantees
to the accused including no imposition of "any reversal of the burden of proof or any onus of rebuttal". The law in a
number of countries, including the UK and the US, is similar to the existing law in India. In Australia, no adverse
inferences will be drawn if the defendant does not make a statement. In New Zealand the defendant has no positive
obligation to speak or to give evidence at any point in the proceedings, other than to plead guilty or not guilty at the
preliminary hearing.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge
against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his
own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it;

Similar provisions are also found in Principle 21 of the UN Body of Principles for the Protection of All
Persons under any form of Detention or Imprisonment and Article 61(1)(g) and 67(l)(g) of the Rome
Statute of the International Criminal Court. The Committee's position that drawing adverse inference
when the accused remains silent ignores the object of the right and undermines the spirit of the
fundamental right to silence.

In its 180th report issued in May 2002, the Law Commission of India has stated unequivocally that any
move to amend the provisions of the Cr.PC (in the manner that the Malimath Committee has suggested)
would be “ultra vires of Article 20(3) and Article 21 of the Constitution of India”. In this report, the
Law Commission noted: “Apart from the above statutory consideration, there is a constitutional
implication if we take into account the observations of the dissenting Judges in Adamson v. California
(1947) 332 US 46...If you cannot compel an accused to make a statement against himself, you cannot
draw any inference against him because he remains silent, since that would obviously oblige him to
speak, rather than remain silent.”

Right to silence of the accused at all times and in all cases is an inviolable rule has been the subject
matter of controversy. The accused is a good source of information; perhaps the source about the
commission of the offence, but this source about the commission of the offence is not tapped for fear of
infringing the right to silence guaranteed by Article 20(3), which states that “No person accused of any
offence shall be compelled to be a witness against himself.” The testimonial compulsion that is
prohibited under Article 20(3) of the Constitution, as explained by several decisions of the Supreme
Court itself, is against duress. The article does not prohibit admissions on confessions made without
inducement, threat or promise; it does not bar the accused from voluntarily offering himself to be
examined as a witness.45

At present the participation of the accused in the trial is minimal. He is not even required to disclose his
stand and the benefit of special exception to any which he claims. This results in great prejudice to the
prosecution and impedes the search for truth. The Committee has therefore felt that the accused should
be required to file a statement to the prosecution disclosing his stand. The Committee felt that without
subjecting the accused to any duress, the court should have the freedom to question the accused to elicit
the relevant information and if he refuses to answer, to draw adverse inference against the accused.

It suggested insertion of following sections in the Code of Criminal Procedure in the place of Section

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
Fali Sam Nariman, India s Legal System: Can it be Saved? (2006).

a) 313-A: In every trial, the Court shall, immediately after the witnesses for the prosecution have
been examined, question the accused generally, to explain personally any circumstances appearing in
the evidence against him.
b) 313-B(1): Without previously warning the accused, the Court may at any stage of trial and
shall after the examination under Section 313-A and before he is called on his defence put such
questions to him as the court considers necessary with the object of discovering the truth in the case. If
the accused remains silent or refuses to answer any question put to him by the court which he is not
compelled by law to answer, the court may draw such appropriate inference including adverse inference
as it considers proper in the circumstances.
c) 313-C(1): No oath shall be administered when the accused is examined under Section 313-A or
Section 313-B and the accused shall not be liable to punishment for refusing to answer any question or
by giving false answer to them.

The answers given by the accused may be taken into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into, or trial for, or any other offence which such
answers may tend to show he has committed. Just by drawing adverse inferences Article 20(3) will not
be violated.

The British first abolished the right to silence in cases in Northern Ireland, with the Criminal Evidence
(Northern Ireland) Order, 1988, and followed that by ending the right to silence in England and Wales
as well with the Criminals Justice and Public Order Act (UK), 1994.
It is time we recognize that in heinous and terrorist related offences which can be precisely defined by
law what is known as right to silence is not a right but a privilege and although ever accused has a right
to be presumed innocent till he is proven guilty, in heinous and terrorist related crimes the accused has
an obligation to assist the judge. Not the prosecution but the judge -in the discovery of truth. In such
case, the accused should not have any right to remain absolutely silent and refuse to answer questions
on oath.

The accused like any other witness knowing the facts, must tell the court what he knows. A
presumption to be drawn from his failure to give evidence may not be enough; it might well conflict
with the presumption of innocence, hence there should be a positive obligation imposed by law on such
a person to assist in the investigation, and if so required by court to give evidence. This would not
transgress but further the purposes of law. It would not be disproportionate response to the serious
problem of terrorism.

Adversarial System:

In Due Process Model, the adversarial system contemplates the State as the Custodian of public justice
against the individual accused. The State has all the advantages of main resources for the purpose of
proving its case. The accused can often be a citizen, incapable of any resources overawed by the

mystique of legalese, excessive reliance upon legal services and a very little sense of direction of
personal participation in the legal system.

In The New York Times of 25th March, 2006 it was reported that England's Home Secretary, Charles
Clarke, said that under the adversarial system of justice convictions were notoriously difficult to secure
it terrorist trials. He would support a shift to an inquisitorial system in terrorist cases, because it offered
protection to the public. In France, magistrates interrogate suspects before their lawyers are brought in.
But the Home Secretary then added "that nobody wants to give up the judicial system for more than a
hundred years: but we have never faced such a menace before and we may have to make an exception
for terrorism."
There has been a great deal of debate in England to propagate that the inquisitorial system is far better
than the adversarial system of justice. The basis for this has been an oft quoted successful French
experiment where magisterial supervision or direction of investigation takes place. If that were to
happen in India there would be very little hope of justice and would completely militate against the
principle of separation of powers, which is a part of the Indian democracy and constitutional
framework. It would be impossible for a judge to distance himself from investigation. It is only because
of that separation that there can often be an acquittal of the innocent. However, we can have special
laws to deal with terrorist related heinous and organized crimes.


The crafty know-how to manipulate investigation and manage evidence is another aspect, which
inspires a review at justice model. The crafty criminals have grown so adept that they often outsmart
the system. They know how to manipulate the investigation, how to manage the evidence so that
criminal cases come unstuck with the mysterious disappearance of witnesses, retraction of statements
previously given and the like.

Hostile Witnesses and Witness Protection:

The increasing number in the witnesses turning hostile is also an area, which inspires review at the
justice model. As to hostile witness and problem of perjury, the Malimath Committee said that one of
the main reasons for the large percentage of acquittals in criminal cases is of witnesses turning hostile
and giving false testimony in criminal cases. Several reasons such as inordinate delay in the accused
etc. are attributed to the malady. As the prosecution relies mainly oral evidence in criminal cases the
problem assumes critical importance. Witnesses give evidence in criminal court after they are
administered or affirmation under the Oaths Act, 1969. Section 8 of the Oaths Act provides that the
witness is legally bound to state the truth on the subject. The sanction behind the oath is supposed to be
the fear of God and the fear of eventual punishment by God, the supernatural dispenser of justice. In
practice, however, it is seen that the witnesses make false statements without any regard for the sanctity
of the oath or affirmation that has been administered to them.

One gets an impression that administration of oath or affirmation virtually gives license to the witness
to make false statements before the court with impunity…. perjury can contribute to the wrong person
being convicted while the true criminal and perjurer walk on the streets in freedom. Offering false
testimony in a criminal trial is a serious offence that undermines the integrity of the criminal justice
system. For justice to be done, truth must prevail. Witness must be made to take their oath or solemn
affirmation seriously. The sentence prescribed for perjury is quite lenient.
In the State of New York, the sentence for perjury was recently enhanced to 15 years. As the menace of
perjury is shaking the very foundation of criminal justice system it is necessary to curb this menace and
sentence prescribed should be enhanced.

The Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha in August, 2003 to
implement measures designed to prevent the evil of witnesses turning hostile by inserting new sections
to ensure that evidence of material witnesses was to be recorded by the magistrate in certain cases,
where investigation is Under Stress of an offence publishable with death or imprisonment for seven
years or more. Also under consideration was summary procedure for the trial of witnesses deposing
contrary to the statements recorded by the magistrates. But this provision has not been passed by the
Parliament: they were omitted from the final Act since the select committee decided to drop these
provisions. It was a welcome move.

Witness protection has s very close relation with the witness turning hostile. It is time to have a Witness
Protection Act like the Witness Protection and Reallocation Programme in the United States of
America, the Witness Protection Act, 1996 in Canada and the Witness Protection Act, 1998 in South
Africa which will establish a central office for witness protection to function under the control of the
Minister of Justice and Constitutional Department. A victim needs a voice but it is not always possible
to think of a truth and Reconciliation Commission to undertake a dialogue between the victim and
perpetrator, although, dialogue can often be the function of repair. The International Criminal Tribunal
for Rwanda has formulated rules for the protection of victims and witnesses. A similar provision exists
in the creation for International Criminal Court.
The Delhi High Court gave guidelines in the case of Mrs. Neelam Katara v Union of India46 known as
“Witness Protection Guidelines” that are to be followed till a suitable Legislation is brought on the
Statute book. Law Commission of India also in its 198th report published on 30th August, 2006 talked
about the need of Witness Identity Protection and Witness Protection Programme.

ILR (2003) II Del 377.


We have addressed both the crime control model and the due process model and have found significant
strengths and weaknesses inherent to both of them. Close examination reveals that law enforcement
agencies must be careful not to allow their agencies to pursue one model with disregard for the
other. Both appear to have potential pitfalls and dangers that could threaten both safety and security
and the individual freedoms. Both of the models have different methods that are used to reach a
common goal. The crime control model appears to be the best model used for maintain and restoring
order in society. In the ideal world, decisions would not be made in haste. But in order to complete a
job and catch certain criminals, then there has to be room for quick decisions, even if it becomes clear
that the decisions that were made were wrong.

To declare that one of these models is superior to the other requires one to make a value judgment. The
crime control model reflects conservative values, while the due process model reflects liberal values. A
combination of two models with the strengths of both aiming at avoiding weaknesses and potential
dangers appears to be best. Such a philosophy provides a moderate approach that protects the individual
freedoms and also the society from a criminal element. The crime control through due process model
appears to be the best strategy to deal with crime in the days ahead. It is interesting to note that Frank
Scmalleger’s interpretation and combination of the two models appears to be consistent with the very
framework laid out by the founding fathers in the United States Constitution when they wrote, “We the
People of the United States, in Order to form a more perfect Union, establish justice, insure
domestic tranquility, provide for the common defense, promote the general welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.”47

Two of the main factors that are looked at when making a decision such as this are, which model helps
maintain social order, and which model helps reduce the risk of imprisoning innocent individuals. As
close as these two factors are related, the answer should be simplistic, however it is not. In the criminal
justice system, these factors actually conflict with one another, therefore there is not a common system
that came be used for both of the factors. Maintaining and restoring social order is best maintained by
the crime control model, whereas protecting individual rights is best maintained by the due process

The United States Constitution.