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Privacy And Publicity In Criminal Procedure: Ancient Mysteries Crying Out For Understanding

University of South Dakota

Conflict between fundamental values is inevitable, necessary, and healthy for any complex, developing society. Most analysts decry conflict; this article sings its praises and argues its functions. The privacy-publicity debate illustrates the clash of one set of fundamental values; there are many others. This article lists the values and disvalues underlying the demands for privacy and publicity, explains how they are manipulated in public policy debates, and then illustrates how the private-public dichotomy and values permeate the Supreme Court's analyses of Fourth Amendment cases at the same time that the Court is expressly, and rather adamantly, trying to eliminate the private-public analyses from Fifth Amendment cases. The article ends with 1) a summary of the thesis that conflict between fundamentally opposite values can be constructive, 2) a list of methods to follow when faced with these polarities, and 3) a call for a more philosophical recognition that dichotomous words are mere symbols which we use, often rhetorically and with undue sophistry, to polarize rather than unify.

Criminal Justice Policy Review, Vol. 4, No. 3, 223-248 (1990)
DOI: 10.1177/088740349000400303


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