Standards of Appellate Review of Mixed Questions of Federal Constitutional Law and Fact: Follow the SCOTUS. Practitioners can rely on a considerable body of federal and state law to call on state appellate courts to apply a de novo standard of appellate review in cases presenting mixed issues of federal constitutional law and fact

• Author: Katayoun A. Donnelly
• Pages: 9-15

Appellate Practice

Summer 2021, Vol. 40 No. 3

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June 03, 2021

Standards of Appellate Review of Mixed

Questions of Federal Constitutional Law and

Fact: Follow the SCOTUS

Practitioners can rely on a considerable body of federal and

state law to call on state appellate courts to apply a de novo

standard of appellate review in cases presenting mixed

issues of federal constitutional law and fact.

By Katayoun A. Donnelly

The Supreme Court of the United States (SCOTUS) ensures the uniformity and supremacy

of federal law. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326, 135 S. Ct.

1378, 1384, 191 L. Ed. 2d 471 (2015). Standards of appellate review, when they implicate

remedies for federal constitutional violations, fall squarely within this purview. States have

recognized this. Practitioners therefore can rely on a considerable body of federal and state

law to call on state appellate courts to apply a de novo standard of appellate review in

cases presenting mixed issues of federal constitutional law and fact, keeping in mind that a

state may provide more protections than the federal constitution but may not provide

less. See, e.g., Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).

Supreme Court: De Novo Standard

For decades, the U.S. Supreme Court has applied the de novo standard to review mixed

questions of federal constitutional law and fact.

In 1967, the Court, in Chapman v. California, required state appellate courts to replace their

own less rigorous standards of harmlessness of federal constitutional error with the

“harmless beyond a reasonable doubt” appellate standard of review. 386 U.S. 18 (1967).

In 1984, in Bose Corp. v. Consumers Union of United States, Inc., the Court made it

abundantly clear that it requires de novo review of decisions of mixed questions of federal

constitutional law and fact and held “that judges—and particularly Members of this

Court—must exercise” an independent appellate “review in order to preserve the precious

liberties established and ordained by the Constitution.” 466 U.S. 485, 510–11, 104 S. Ct.

1949, 1965, 80 L. Ed. 2d 502 (1984) (“The requirement of independent appellate review