1.2 Sources of the Law

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

1.2 SOURCES OF THE LAW

1.201 Constitution, Laws, and Treaties of the United States. Article VI of the United States Constitution provides that the

Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This "supremacy clause" plays an important role in the criminal process because it establishes that state law is void and preempted to the extent that it conflicts with federal law. Although the United States Constitution is most frequently the source of federal law affecting the criminal process, some federal statutes and treaties also operate on the states in the context of criminal proceedings. The most prominent example of a federal statute that controls an aspect of the criminal process in the states is the federal wiretapping statute. ⁶

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The primary source of federal law governing state criminal proceedings remains, however, the Bill of Rights, and in particular, the Fourth, Fifth, Sixth, and Eighth Amendments. Through the process of "incorporation," most of the guarantees in these amendments have been made binding on the states through the Fourteenth Amendment. In other words, the specific guarantee of the Fourteenth Amendment that no state shall deprive a person of due process of law has been determined to include the specific guarantees of most, but not all, provisions in the Bill of Rights.

The history of the incorporation process covers a span of over 100 years, and today the provisions binding on the states include: the search and seizure provisions of the Fourth Amendment, ⁷ including the exclusionary rule; ⁸ the Fifth Amendment prohibitions against compulsory self-incrimination ⁹ and double jeopardy; ¹⁰ the Sixth Amendment guarantees of the right to a speedy ¹¹ and public trial ¹² by an impartial jury, ¹³ to confront and cross-examine witnesses, ¹⁴ to have compulsory process, ¹⁵ and to have the assistance of counsel at state expense; ¹⁶ and the Eighth Amendment prohibition against cruel and unusual punishment. ¹⁷ The Eighth Amendment's prohibition against excessive bail is also generally assumed to be binding on the states. ¹⁸ In addition, numerous constitutional guarantees nowhere specifically mentioned in the Constitution have been found to be within the general concept of due process and thus binding on the states, including the requirement that states carry the burden of proving of all essential elements of the crime beyond a reasonable doubt. ¹⁹

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The Supreme Court has thus reached the point of almost total incorporation of the specific guarantees of the Bill of Rights. The only guarantee the Court specifically rejected as binding on the states is the Fifth Amendment prohibition of trial except upon presentment or indictment by a grand jury. ²⁰

The process of incorporation, although nearly complete, has created another problem: whether the incorporated Bill of Rights provisions apply to the states to the same extent as they apply to the federal government. Under our republican form of government, it would seem impossible to fully incorporate all provisions given the language of the Tenth Amendment that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The history of incorporation of the right to a jury trial illustrates the problem. In Duncan v. Louisiana, ²¹ the Supreme Court held that the states are constitutionally required to provide jury trials in all "non-petty" offense cases. The question then arose of whether previous interpretations of this right, developed in federal criminal prosecutions, are also binding on the states. Specifically, the Court was confronted with the question of whether the right includes the right to a twelve-person, unanimous verdict jury, which earlier federal cases had assumed was part of the constitutional right to a trial by jury. In Williams v. Florida, ²² the court held that a twelve-person panel is not, in fact, an essential feature of a trial by jury. Subsequently, in Apodaca v. Oregon, ²³ the Court held that a unanimous jury verdict is not constitutionally mandated by the Sixth Amendment. These cases make clear that while the United States Supreme Court has held the Fourteenth Amendment does incorporate specific provisions to the states, the Fourteenth Amendment did not incorporate all provisions to the states. How the courts, and more generally we as a society, resolve the tension inherent in the foundation of our republican system, where the federal government is supposed to be of limited power and all other power not specifically delegated to the federal government is reserved to the states, which tension is captured in the obviously fundamentally opposing dictates of the Fourteenth Amendment and Tenth Amendment, relies heavily upon the viewpoint of the judge hearing the case, the United States Supreme Court on review of that decision, and ultimately how...