"incorporation" of the Criminal Procedure Amendments: the View from the States

JurisdictionUnited States,Federal
CitationVol. 84
Publication year2021

84 Nebraska L. Rev. 397. "Incorporation" of the Criminal Procedure Amendments: The View from the States

397

Kenneth Katkin*


"Incorporation" of the Criminal Procedure Amendments: The View from the States


TABLE OF CONTENTS


I. Introduction ...................................................... 397
II. The Incorporation Debate ......................................... 402
III. State Bills of Rights Before and After the Civil War ............ 408
IV. State Analogues of the Rights that Have Been Incorporated ..................................................... 411
A. Searches and Seizures/Warrant Requirement ..................... 413
B. Double Jeopardy ............................................... 423
C. Compelled Self-Incrimination .................................. 431
D. Public Trial .................................................. 440
E. Criminal Jury Trial ........................................... 446
F. Notice of Charges ............................................. 455
G. Right To Counsel .............................................. 458
V. Conclusion ........................................................ 465


I. INTRODUCTION

From 1932 to 1969, the United States Supreme Court "incorporated" most of the criminal procedure provisions of the Bill of Rights

398

into the Due Process Clause of the Fourteenth Amendment,(fn1) thereby rendering those provisions binding on state and local governments.(fn2) Before and during that time, jurists and legal scholars vigorously debated the constitutional legitimacy of the Fourteenth Amendment "doctrine of incorporation."(fn3) Despite the apparent stability of the post-1969 standoff in the Supreme Court,(fn4) the controversy over "incorporation" has continued to rage.(fn5) Whether considering the status of the few remaining "unincorporated" rights, evaluating "total incorporation" theories, or defending or criticizing the status quo, "incorpora

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tion" opponents(fn6) and proponents(fn7) alike have agreed that the ultimate resolution of the "incorporation" debate will have meaningful, practical effects on the legal rights of people throughout the United States.

Despite such widespread agreement, however, no systematic attempt has been made to measure the extent to which "incorporation" of the Fourth, Fifth, and Sixth Amendments has shaped the contours of state criminal procedure as it is practiced. At first glance, it is not clear why "incorporation" should exert significant impact. After all, every state constitution contains a bill of rights that significantly overlaps the United States Bill of Rights.(fn8) Moreover, state court interpretations of state bills of rights have long been influenced by federal court interpretations of the United States Bill of Rights.(fn9) For this reason, even if "incorporation" had never occurred, most state cases decided under the "incorporated" Fourth, Fifth, and Sixth Amendments seemingly should be expected to come out the same way under analogous state constitutional provisions.(fn10)

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Undoubtedly, the "doctrine of incorporation" would have tremendous practical significance if the specification of constitutional rights varied from state to state. In theory, the texts of the separate state bills of rights could recite different rights from one another. In addition, judicial interpretations of textually similar guarantees in separate state constitutions could diverge over time. States also could repeal existing state bills of rights provisions.(fn11) They could add new rights not protected by the United States Constitution.(fn12) Experimentation by the states in all these respects could lead to innovation, and perhaps to productive competition among the states.(fn13) If so, then "incorporation" of the United States Bill of Rights would constrain each state by requiring maintenance of a uniform national core of civil liberties protections.

In practice, however, with respect to criminal procedure, such diversity simply is not found. The criminal procedure provisions of most of the state bills of rights are nearly identical to one another and to the United States Bill of Rights.(fn14) Variations in constitutional language have been interpreted by state courts as cosmetic and inadvertent. In particular, the absence of a particular textual guarantee from a given state constitution, more often than not, has not discouraged courts in the state at issue from protecting the right.(fn15) Moreover, to the extent that there has been experimentation, the experiment seems to be all but over. Virtually every right enumerated in the United States Bill of Rights has been embraced widely in the fifty states. 401Since 1791, state bills of rights have been amended overwhelmingly towards greater conformity with the United States Constitution, and almost never away from such conformity.(fn16)

For this reason, standard accounts of the "doctrine of incorporation" may overstate the extent to which the Fourth, Fifth, and Sixth Amendments to the United States Constitution protect the rights of criminal defendants more strongly than typical state law. This overstatement perhaps stems from the fact that the Supreme Court did, in fact, have occasion to "incorporate" ten substantive rights recited in the Fourth, Fifth, and Sixth Amendments--and to reverse state court decisions in so doing. If state courts have failed, at one time or another, to protect each of the ten rights that have been "incorporated" by the Supreme Court, then it might appear that the application of federal constitutional norms to state criminal processes necessarily effected significant substantive impositions on state criminal procedure law.

Closer examination, however, reveals a more complex, but less dramatic, story. In several "incorporation" cases, the United States Supreme Court reversed decisions in which state courts had labored earnestly to apply federal constitutional doctrine.(fn17) State courts in these cases did not reject federal interpretations of the Bill of Rights, but rather simply failed to correctly predict the Supreme Court's disposition of certain close legal questions. In other cases, the Supreme Court announced the "incorporation" of United States constitutional norms, but minimized the impact of these announcements by continuing to permit significant variation among the states in the implementation of such norms.(fn18) Several "incorporation" cases did little more than to require one or two outlying states to modify relatively minor

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details of their state criminal practice.(fn19) A handful of "incorporation" cases did have potential to impose paradigm-shifting changes on criminal procedure in many states(fn20)--until, as always happened, the Supreme Court retreated from the implications of its holdings.(fn21)

By closely examining the state court proceedings underlying the Supreme Court's "incorporation" decisions that fit into each of these categories, this Article demonstrates that "incorporation" of the Fourth, Fifth, and Sixth Amendments did not require modification of state criminal procedure to nearly the extent commonly supposed. Part I recounts the history of the "incorporation" debate. Part II explains why variation in the language set forth in various state bills of rights has rarely been reflected by corresponding differences in state criminal procedure. Finally, in order to determine the extent to which "incorporation" reshaped state criminal procedure, Part III reviews the facts and holdings of the state court decisions underlying the Supreme Court's "incorporation" cases, and also surveys the law of other states whose constitutions lacked express analogues to United States constitutional provisions.

II. THE INCORPORATION DEBATE

Since the ratification of the Fourteenth Amendment in 1868, courts and commentators have struggled with the question whether the Fourteenth Amendment "incorporates" the guarantees of the first eight or nine Amendments as limits on state power. Although the first federal court to face the question held that the Fourteenth Amendment's Privileges or Immunities Clause achieved such an effect,(fn22) the Supreme Court apparently rejected this interpretation when it first construed the Clause.(fn23) Nineteenth century commenta

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tors were nearly unanimous in criticizing this decision in the Slaughter-House Cases as a judicial abrogation of the Fourteenth Amendment.(fn24) Even the few commentators who applauded the Slaughter-House Cases decision agreed that neither the text of the Fourteenth Amendment, nor its ratifiers' intent, supported the Court's holding.(fn25)

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Nonetheless, for the next quarter century, the Supreme Court considered and rejected a series of claims that specific guarantees of the Bill of Rights had been "incorporated" against the states by the Fourteenth Amendment.(fn26) Finally, in 1897, after repeatedly rejecting such claims, the Court construed the Due Process Clause of the Fourteenth Amendment as having implicitly "incorporated" the "just compensation" requirement of the Fifth Amendment's Takings Clause.(fn27) After this 1897 decision, however, the Court reverted for another quarter century to rejecting other "incorporation" claims.(fn28)

Between 1925 and 1969, the Supreme Court reversed its earlier course, "incorporating" as limits on state power almost all of the enumerated rights expressly guaranteed by the First through Eighth Amendments.(fn29) Midway through that process, in 1947, Justice Hugo Black announced a theory of "total incorporation" of the Bill of Rights through the Privileges or Immunities Clause of the Fourteenth

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Amendment.(fn30) While Justice Black's view never commanded a Court majority, the Court did embrace Justice Cardozo's earlier formulation of "absorption" (later called "selective incorporation"), via the Due Process Clause, of those...

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