Advances and departures in the criminal law of the states: a selective critique.

• Author: Friedelbaum, Stanley H.

1. A BACKWARD GLANCE: THE WARREN COURT AND ITS LEGACY

   The administration of the criminal law ranked high among the disputed areas of jurisprudence attributed to the activism of the Warren Court. Perhaps best known to the public were the Miranda warnings intended to protect the accused and to prevent acts of intimidation by police and prosecutors intent upon securing confessions from those unaware of their rights. (1) In addition to Miranda and other deterrents largely derived from the Fifth Amendment, the Warren Court majority completed much of the incorporation or absorption of the Bill of Rights, making most federal criminal safeguards applicable to the states. The process led to what has been termed the creation of a national criminal code heretofore unknown in a country where criminal law proceedings lay almost exclusively within the purview of the states. (2)

   That many of the activities of the Warren Court were reviled, not only in the law enforcement community, but also elsewhere within the cadre of state and local officials, became evident as controversial decisions continued to emerge. A conference of the nation's state chief justices took the unprecedented and extraordinary step of condemning a number of the initiatives of the United State Supreme Court as contrary to accepted principles of state autonomy. (3) The conferees "urge[d] the desirability of self-restraint on the part of the Supreme Court in the exercise of the vast powers committed to it." (4) While the Court was not without its defenders, (5) the persistence of decisional excesses elicited a rebuke from "literate critics." (6) The outcry among members of law enforcement dominated the fray with claims that the actions of the Warren Court threatened to undermine the social order. (7)

   Less dramatic in its public impact, but equally if not more rankling to those committed to vigorous enforcement of the criminal law, was the earlier application of the exclusionary rule to the states. (8) The rule, long a buttress of the Fourth Amendment in defense of individual rights, served to exclude evidence obtained by way of an unlawful seizure from introduction at trial. (9) In fact, the rule had been subjected to intense criticism from its inception, in part for want of a clearly specified objective. (10) Was it intended to discourage untoward police conduct, to maintain the integrity of the courts, or to secure a combination of ends not clearly set forth? If outright abandonment of the exclusionary rule was difficult to justify, its extension to the states promised to add fuel to a law enforcement community soon to be beset by other assaults on its essential battery of weapons against the underworld. There followed the inclusion of additional elements in the Warren Court's effort to contain prosecutorial excesses. Such cases as Gideon v. Wainwright, ensuring indigent defendants counsel in state criminal trials, (11) Malloy v. Hogan, making the Fifth Amendment's self-incrimination clause binding upon the states, (12) and Griffin v. California, forbidding adverse comments on a defendant's refusal to testify in criminal cases, added to the series of rights made applicable. (13) It remained for Miranda to supply the fervency for the tirades that ensued. If the public was not moved to react with unusual negativism to the safeguards afforded the accused at trial, Miranda served as an especially provocative irritant that, for some, seemed to exceed the bounds of propriety.

   The succeeding Burger Court predictably should have reversed or at least modified many of the precedents established during the Warren Court years. To the surprise of many court watchers, no major turnabout came to pass and dramatic changes were sparse. (14) The Burger Court reflected a tribunal in perpetual transition, groping for issues of moment, not a Court committed to undoing the work of its predecessor. (15) Even the attacks upon Miranda often were overstated and marginal rather than frontal assaults to eliminate its basic core. (16) All the same, the Burger Court, led by the Chief Justice, did move to weaken the exclusionary rule by way of a good-faith exception that permitted the introduction of evidence derived from a warrant issued without probable cause. (17) Thus, when a balance had to be struck, the Court's treatment of the criminal law was mixed, not unqualifiedly sanctioning the intrusions of the Warren Court, but also not dedicated to setting aside established safeguards in truculent fashion. It remained for the Rehnquist Court to display a more aggressive, self-assertive posture and to proceed more decisively in attempts, not always successful, to undo precedents of the Warren era.

   The turmoil that affected the changing status of the criminal law in the United States Supreme Court was partially responsible for a resort to a new judicial federalism. State courts began to assert an independence to which they had always been heir but which they had not pursued with unalloyed ardor on previous occasions. The decade of the 1970s was the first to reveal state court decisions replete with a spirited revitalization premised on independent and adequate state grounds. (18) It was during this era that many of these decisions dealt increasingly with the criminal law, especially in such pioneering states as California. (19) But precedents established by the U.S. Supreme Court neither were routinely ignored nor critically modified or reversed in cavalier fashion. Instead, state courts often engaged in a selective process that sustained and applied certain federal court opinions while digressing, at times minimally, from others. (20) The choices and the findings prompted a dissenting member of the California Supreme Court to observe that deference toward the U.S. Supreme Court was "fast becoming a shell game." (21)

   As the twentieth century drew to a close and state judicial activism became an accepted part of the dualism that marked the American adjudicatory system, discussion spread across the legal community concerning the ultimate effects of the increasingly widespread participation of state courts in framing the nation's criminal law. Interestingly, a coalition of conservative and liberal justices began to encourage a turn to the state courts, the former as a part of a dedication to old-style federalism, the latter as a means of undoing what they perceived to be regressive decisions detrimental to the rights of the accused. (22) Among the most outspoken supporters of the "revitalization of state constitutional law" was Justice William Brennan, ordinarily a stalwart advocate of strong national control. (23)

   Apart from the rhetoric associated with a revived state constitutional reading of the criminal law, the alterations more recently introduced have posited important changes at the margins, not the major transformations contemplated in an earlier era. (24) Fewer unabashed clashes between nation and state have occurred, those in evidence at a diminished rate when compared with previous decades. Having established the basic right to add to the safeguards provided in the Federal Bill of Rights, state courts seem to have relented and abandoned the fervor that marked their initial forays. The nationalization of a constitutionally protected bulwark secured the rights of criminal defendants by way of a minimal federal grounding below which states could not proceed. (25) Consequently, the direction of the case law changed to embrace a less adversarial version of federalism, introducing reforms in a number of states but not attempts to refashion the fundamental corpus of the criminal law in its state applications.

   That even these efforts became engulfed in controversy was evident in the debates that arose in several state appellate courts. In Texas, New York, and Pennsylvania, conflicts led to rancor not often encountered among state justices. Enhancement of Fourth Amendment rights in a Texas case involving inventory searches led to a major display of emotionalism. (26) The Court of Criminal Appeals announced its intention to depart from federal standards to ensure against an "arbitrary invasion" of individual privacy and security rights. (27) Among recurrent references to the state's bill of rights, the court, with a turn to ill-considered chauvinism, declared that the state's protective shield was afforded primacy in successive state constitutions while the Federal Bill of Rights was merely amendatory. (28) To this resort to independent state grounds, a dissenter objected that the doctrine left lower courts bereft of guidance in applying the newfound formulation of state law. (29)

   In many ways paralleling the Texas court's foray, a New York case, People v. Harris, resulted in the state court's suppression of a station house statement admissible under federal standards. (30) The court held the statement to be contrary to the state constitution's prohibition of unreasonable searches and seizures and to its interplay with the state's right to counsel rules. (31) A majority cited historic origins "rooted in this State's prerevolutionary constitutional law" and developed independently of federal counterparts despite identical federal and state constitutional language. (32) The dissent, by contrast, took exception to what it termed an "astonishing" departure from accepted jurisprudential policy and a "dogged choice." (33) Even more pointedly, the dissent condemned the majority's efforts "to stretch precedent and twist logic in order to rescue this defendant from a United States Supreme Court decision against him." (34)

   The Supreme Court of Pennsylvania, in Commonwealth v. Lewis, took pains to reaffirm a state-centered "no-adverse-reference" instruction that trial judges were required to provide when a defendant chose not to testify. (35) Failure to do so in timely fashion, the majority declared, did not constitute harmless error and the oversight could not be ignored. (36)...