Criminal Procedure under State Law: An Empirical Examination of Selective New Federalism

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Criminal Procedure Under State Law: An Empirical Examination of Selective New Federalism*

Since the mid-1970s, states have extended civil liberties to criminal defendants beyond what is mandated by the U.S. Supreme Court. Despite the rare use of state constitutional law to provide additional protections to individuals, legal scholars and social scientists have examined various aspects of new federalism. Largely ignored by this research have been the actions of the states in actually providing additional rights to criminal defendants. This study examines whether states differ in the number of doctrinal areas in which they provide additional protections and what might explain these differences. It explores the impact of institutional, ideological, and environmental factors on the level of rights that states provide to criminal defendants and discusses the theoretical underpinnings for the observed differences.

Under the American federal system of government, individual rights and liberties are derived from two distinct sources: a national Constitution and the several state constitutions. For the first 175 years of nationhood, little concern was raised regarding the use of state constitutions to protect individual rights. With the appointments of Warren Burger and William Rehnquist to the Supreme Court in 1969 and 1972, the Supreme Court began a process of reining in the protections provided under the U.S. Constitution that continues to this day. Not coincidently, in the early 1970s, a number of astute scholars and jurists, sensing this change in Supreme Court jurisprudence, began calling for states to use their own state constitutions to protect individual civil liberties that may not be guaranteed under the federal Constitution (Tarr, 1994). The era of new federalism began.

The phrase "New Federalism in Criminal Procedure" was coined in 1974 by Professor Donald Wilkes, Jr. (1974, 1985). Several years later, Justice Brennan, in his now famous Harvard Law Review essay, called on state courts to "step into the breach" left by the Burger Court's rights-narrowing decisions (Brennan, 1977:503). Over the last quarter century, state courts, legislatures, and citizens have heeded on hundreds of occasions the calls of Justice Brennan and Professor Wilkes and accorded civil liberties to people beyond those recognized by the Supreme Court (Latzer, 1991; Tarr, 1994).

Since the era of new federalism began in the 1970s, dozens of legal essays and quantitative studies have been published regarding the use of state constitutional law to protect civil liberties. Legal essays have considered a variety of topics, including the question of when state constitutional law should be invoked (Diehm, 1996; Ku, 1995; Lohraff, 1978), how state constitutions should be interpreted (Israel, 1982; Van Cleave, 1998), and what standards ought to apply to Supreme Court scrutiny of decisions based on state law (Baker, 1985; Nakgiri, 1993; Fahlbusch and Gonzalez, 1987). Quantitative studies have examined how often states use state constitutional grounds for deciding cases (Latter, 1991), how often the rights proscribed by the U.S. Supreme Court are expanded under state constitutional law (Latter, 1991; Flemming, Holian, and Mezey, 1998), and what factors are associated with these particular judicial actions (Beavers and Walz, 1998; Cauthen, 2000).

This article builds upon these quantitative studies. However, rather than examining why individual cases were decided in a particular manner, this article considers the granting of additional civil liberties by states. Additionally, by specifying the level of protections provided criminal defendants in a state by examining not only case law but also state constitutions and rules of procedure, this study provides an expanded measure of civil liberties in an effort to answer rarely considered questions. Specifically, this article examines two related questions: a) Do states differ in the number of doctrinal areas in which they provide additional protections? …