Using State Constitutions to Extend The Rights of Suspects in Criminal Proceedings

Published date01 August 1987
Date01 August 1987
DOIhttp://doi.org/10.1177/104398628700300306
Subject MatterArticles
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Using State Constitutions to Extend
The Rights of Suspects in Criminal Proceedings
by
Thomas J. Hickey
ABSTRACT
Throughout the Twentieth Century, the United
States Constitution has been regarded as the
primary source of constitutional rights in this
country. During Earl Warren’s tenure as Chief
Justice of the U.S. Supreme Court most of the
provisions in the Bill of Rights involving criminal
procedure were held binding on state proceedings
through the Due Process Clause of the Fourteenth
Amendment. Since the early 1970s, a majority of
the U.S. Supreme Court has been inclined to
restrict procedural rights of the accused. In an
effort to circumvent the U.S. Supreme Court and
expand the rights of suspects, a movement to view
state constitutions as sources of individual rights
has developed. Though in its infancy, the
movement toward state constitutional analysis is
regarded as important because it may permanently
alter the nature of legal analysis in the United
States.
The 1960s witnessed the unprecedented extension
of rights guaranteed by the federal Bill of Rights to
state criminal prosecutions. The United States
Supreme Court interpreted the Due Process Clause
of the Fourteenth Amendment to require state
courts to extend to the criminally accused a number
of rights previously guaranteed only in federal
trials.
A number of recent decisions of the
Supreme Court restrict, and in some instances
erode, constitutional protections of the accused. In
an attempt to vindicate the procedural rights of
suspects in state criminal proceedings, attorneys


44
have looked to state constitutions as sources of
individual rights. Associate Supreme Court Justice
William Brennan (1977) regards this trend as &dquo;...
probably the most important development in
constitutional jurisprudence today&dquo; (p. 482). This
article examines the past effects and future
implications of the use of state constitutions to
extend the rights of the criminally accused.
Historical
Considerations
In 1886, the Supreme Court decided Boyd v. United States, a
case described by Justice Louis Brandeis as formulating a principle
&dquo;...that will be remembered so long as civil liberty lives in the
United States&dquo; (Olmstead v. United States, 1928). In Boyd.
Justice Bradley asserted that &dquo;...constitutional provisions for the
security of person and property should be liberally construed.... It
is the duty of the courts to be watchful for the constitutional rights
of the citizen, and against any stealthy encroachments thereon&dquo;
(Brennan, 1977, p. 494).
Prior to the passage of the Fourteenth Amendment, the
Supreme Court consistently held that the Bill of Rights restricted
only federal proceedings (Lewis & Peoples, 1978). Following the
dictum of the Court in Barron v. Baltimore ( 1833), this approach to
constitutional interpretation became known as the Barron doctrine.
During the early part of the Twentieth Century, the Barron
doctrine retained its vitality. Later, the United States Supreme
Court embraced an incremental approach to incorporating specific
provisions in the federal Bill of Rights to state proceedings.
According to Associate Justice William Brennan (1977), the
posture of the Supreme Court regarding the incorporation doctrine
in criminal cases began to change significantly later in the
Twentieth Century. During this period most of the protection
guaranteed to the accused in the federal Bill of Rights were applied
to state proceedings through the Due Process Clause of the
Fourteenth Amendment, including: The right to counsel in capital
cases (Powell v. Alabama, 1932); the privilege against self-
incrimination when state officials use torture to obtain a confession
(Brown v. Mississippi, 1936); the right to a public trial (In re
liv r, 1948); the right to be free from unreasonable searches and
seizures (Wolf v. Colorado, 1949); the exclusionary rule of
evidence (Map,p v. Ohio, 1961); the right to be free from cruel and


45
unusual punishment (Robinson v. California, 1961); the right to
appointed counsel in felony cases (Gideon v. Wainright, 1963); the
privilege against self-incrimination (alloy v. Hogan, 1964); the
right to confrontation and cross-examination of adverse witnesses
(Pointer v. Texas, 1965); the right to a speedy trial (Klopfer v.
North Carolina, 1967); the right to compulsory process for
obtaining witnesses (Washington v. Texas. 1967); the right to a
trial by jury (Duncan v. Louisiana, 1968); the right to be free from
double jeopardy (Brenton v. Maryland. 1969); and the right to
appointed counsel in cases where the possibility of a jail sentence
exists (Argersinger v. Hamlin, 1972) (Brennen, 1977). In fact,
today, the only major provisions in the Bill of Rights applicable to
criminal proceedings which do not bind state proceedings are the
right to a grand jury indictment (Hurtado v. California, 1884), and
the right to be free from excessive bail and fines.
Thus, the federal courts were substantially involved in state
proceedings during Earl Warren’s tenure as Chief Justice of the
United States Supreme Court. The ultimate effect of this federal
court involvement in state criminal proceedings on the American
system of justice has generated substantial controversy.
Proponents of such &dquo;judicial activism&dquo; in criminal cases maintain
that Supreme Court involvement is essential to ensure the integrity
of state criminal proceedings (Rudovsky, 1984). Critics of the
Warren Court’s approach to cases involving the rights of the
accused maintain that the Court handcuffed the police and
needlessly encumbered state criminal proceedings (Wilkey, 1978).
Recent cases decided by the Supreme Court suggest that a counter-
revolution, occasioned by changes in the philosophical orientation
of the members of the Court, has occurred in American criminal
procedure. Although the nature and extent of Supreme Court
erosion of constitutional protections of the accused remains a
matter of debate (e.g., Blasi, 1983; Kamisar, 1983), it has become
apparent that a philosophical transformation in the Court’s
approach to criminal cases, occasioned by changes in the
membership of the court, has major...

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