The Role of State Supreme Courts in Judicial Policy Making: Escobedo, Miranda and the Use of Judicial Impact Analysis
| Published date | 01 March 1974 |
| DOI | 10.1177/106591297402700102 |
| Author | Neil T. Romans |
| Date | 01 March 1974 |
| Subject Matter | Articles |
38
THE
ROLE
OF
STATE
SUPREME
COURTS
IN
JUDICIAL
POLICY
MAKING:
ESCOBEDO,
MIRANDA
AND
THE
USE
OF
JUDICIAL
IMPACT
ANALYSIS
NEIL
T.
ROMANS
Providence
College
HE
RECOGNITION
that
we
need
to
look
beyond
the
Supreme
Court
in
order
to
obtain
a
realistic
understanding
of
the
American
judicial
system
is
JL
not
new.
In
the
1950s
Jack
Peltason ~
and
Walter
Murphy2
conceptualized
this
system
in
terms
of
a
bureaucratic
structure
in
which
the
Supreme
Court,
much
like
any
high
level
decision-maker,
faces
a
problem
of
achieving
acceptance
of
and
compliance
with
its
decisions
by
lower
level
officials
under
its
jurisdiction.
While
this
approach
has
been
utilized
in
research
on
the
lower
federal
courts,3
it
has
not
been
generally
applied
to
state
courts.
Rather
the
work
on
state
courts
has
been
limited
to
individual
courts
or
comparisons
of
a
small
number
of
state
courts
without
regard
for
their
relationship
to
the
Supreme
Court.4
4
Paralleling
this
development,
there
has
been
a
growing
concern
with
the
analy-
sis
of
the
impact
of
Supreme
Court
decisions,
a
concern
with
the
effect
of
these
decisions
on
the
institutions
and
the
problems
to
which
they
are
directed.
Despite
the
large
number
of
impact
studies
that
have been
produced
to
date,
however,
state
supreme
courts
have
been
largely
ignored.5
5
This
omission
is
particularly
unfortunate
in
the
field
of
criminal
procedure,
an
area
in
which
the
Supreme
Court
has
been
attempting
to
institute
fundamental
changes
at
the
trial
court
level.
State
supreme
courts
are
of
vital
significance
in
this
area
for
they
interpret
Supreme
Court
decisions
and
apply
them
within
their
own
states.
In
this
capacity
the
state
supreme
courts
serve
as
a
mediating
force
between
the
Supreme
Court
and
its
decisions
at
the
national
level
and
the
trial
courts,
which
are
subject
to
local
pressures
that
often
run
counter
to
the
decisions
of
the
Supreme
Court.
If
changes
in
criminal
procedure
are
to
be
meaningful
at
1
Jack
Peltason,
Federal
Courts
in
the
Political
Process
(New
York:
Random
House,
1955),
and
Fifty-Eight
Lonely
Men
(New
York :
Harcourt,
Brace
and
World,
1961).
2
Walter
Murphy,
"Lower
Court
Checks
on
Supreme
Court
Power,"
American
Political
Sci-
ence
Review,
53
(December
1959), 1017-31;
"Chief
Justice
Taft
and
the
Lower
Court
Bureaucracy,"
Journal
of
Politics,
24
(August
1962),
453-76;
and
Elements
of
Judicial
Strategy
(Chicago:
University
of
Chicago
Press,
1964).
3
This
concept
was
modified
by
Kenneth
Vines
in
"The
Role
of
the
Circuit
Courts
of
Appeal
in
the
Federal
Judicial
Process,"
Midwest
Journal
of
Political
Science,
7
(November
1963), 305-19;
and,
for
a
recent
use
of
this
model,
see
Vines
and
Richard
Richardson,
The
Politics
of
Federal
Courts
(Boston:
Little,
Brown,
1970).
4
Some
recent
examples
of
research
on
state
courts
include:
Bradley
Canon
and
Dean
Jaros,
"External
Variables,
Institutional
Structure
and
Dissent
on
State
Supreme
Courts,"
Polity,
3
(Winter
1970),
175-200;
Henry
Glick,
"Policy-Making
and
State
Supreme
Courts,"
Law
and
Society
Review,
5
(November
1970),
271-91;
Henry
Glick
and
Ken-
neth
Vines,
"Law-Making
in
the
State
Judiciary,"
Polity,
2
(Winter
1969),
142-59;
and
Henry
Glick,
Supreme
Courts
in
State
Politics
(New
York :
Basic
Books,
1971).
5
Two
exceptions
are
David
Manwaring,
"The
Impact
of
Mapp
v.
Ohio,"
in
David
Man-
waring,
Donald
Reich
and
Stephen
Wasby,
The
Supreme
Court
as
Policy-Maker
(Car-
bondale:
Public
Affairs
Research
Bureau,
Southern
Illinois
University,
1968),
1-43 ;
and
Kenneth
Vines,
"Southern
State
Supreme
Courts
and
Race
Relations,"
Western
Political
Quarterly,
18
(March
1965), 5-18.
39
the
trial
level
(and
most
criminal
trials
do
take
place
in
state
courts),
the
attitude
of
state
supreme
courts
is
of
critical
concern.
This
study
will
attempt
to
fill
the
gap
in
recent
impact
studies
by
focusing
on
the
reaction
of
state
supreme
courts
to
the
Supreme
Court’s
decisions
in
Escobedo
v.
Illinois7
and
Miranda
v.
Arizona8
which
deal
with
the
admissibility
of
pre-trial
confessions
at
criminal
trials.
The
Escobedo
decision,
despite
its
apparent
liberal-
ism,
was
vague
enough
so
that
state
courts
could avoid
the
aim
of
the
Supreme
Court
(to
extend
additional
protections
to
accused
persons
in
criminal
cases)
with-
out
directly
defying
the
Court.
In
this
situation,
the
state
courts
could
more
readily
express
their
own
views
on
the
Supreme
Court
and
its
activities
than
would
have
been
possible
if
the
decision
had
been
more
clearly
expressed
and
unequivocal.
The
Miranda
decision,
in
turn,
was
an
attempt
by
the
Supreme
Court
to
clarify
the
ambiguities
in
Escobedo
and
establish
clear,
definite
standards
governing
the
ad-
missibility
of
pre-trial
confessions.
This,
presumably,
would
restrict
the
ability
of
state
courts
to
deviate
from
the
intent
of
the
Supreme
Court
in
this
area.
The
Escobedo
and
Miranda
decisions
will
be
placed
in
perspective
by
an
examination
of
the
period
from
June,
1958,9
to
December,
1968,1°
with
an
exami-
nation
being
made
of
state
court
decisions
before
Escobedo
and
the
reactions
to
Escobedo
and
Miranda.
The
major
problem
encountered
was
that
of
determining
which
state
cases
were
to
be
examined.
To
overcome
this
problem,
the
West
&dquo;Key
Number
Digest&dquo;
with
the
National
Reporter
System
was
used,
and
was
cross-
checked
with
Shepard’s
Citations.
Although
some
state
decisions
might
have
been
omitted
under
this
approach,
it
was
the
most
practical
method
that
could
have
been
used
and
was
random
enough
to
ensure
an
accurate
picture
of
state
activity
in
this
area.
The
results
of
this
study
will
provide
empirical
data
on
the
impact
of
the
Escobedo
and
Miranda
decisions
on
the
state
supreme
courts,
the
extent
of
opposi-
tion
or
support
which
the
Supreme
Court
may
encounter
within
state
court
systems
in
the
implementation
of
its
policy
determinations,
and
the
liberalism 11
or
con-
servatism 12
of
state
supreme
courts.
6
In
this
paper,
the
term
"state
supreme
court"
is
used
to
refer
to
the
highest
court
of
appeal
in
each
state.
7
378
U.S.
478
(1964).
8
384
U.S.
436
(1966).
9
This
date
was
chosen
because
of
the
Supreme
Court
decisions
in
Crooker
v.
California,
357
U.S.
433,
and
Cicenia
v.
Lagay,
357
U.S.
504,
in
which
the
Court
declared
that
the
absence
of
counsel
at
interrogation
would
not
automatically
bring
about
the
rejection
of
confessions
obtained
at
such
interrogations.
10
This
date
was
chosen
for
the
termination
of
the
research
in
order
that
the
time
period
dur-
ing
which
state
courts
had
the
opportunity
to
interpret
Escobedo
and
Miranda
would
be
approximately
the
same
for
each
case.
11
Liberal
is
defined
here
as
the
tendency
to
accept
new
constitutional
interpretations
and
side
with
the
defendant
in
criminal
cases
by
extending
new
constitutional
protections
to
him.
This
concept
was
utilized
by
Stuart
Nagel,
"Political
Party
Affiliation
and
Judges’
Deci-
sions,"
American
Political
Science
Review,
55
(December
1961),
843-50
and
"Ethnic
Affiliations
and
Judicial
Propensities,"
Journal
of
Politics,
24
(February
1962),
92-110;
and
by
Glick,
Supreme
Courts
in
State
Politics.
12
Conservative
is
defined
here
as
the
tendency
to
resist
new
constitutional
interpretations
and
to
refuse
to
extend
new
procedural
protections
to
accused
persons
in
criminal
cases.
See
sources
cited
in
note
11.
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