Current Issue

Volume 73, Number 3

June 1998

Curing “Constitutional Amnesia”: Criminal Procedure Under State Constitutions

Nina Morrison

Part I of this Note summarizes the Supreme Court’s decisions in five cases and locates them within the emergence of state constitutional law generally. In Parts II, III, and IV, this Note analyzes the state court opinions that have diverged from these federal cases, and considers them in light of state judges’ other reflections on New Federalism. Specifically, it identifies three common principles that undergird state court rulings in these areas. Part II highlights the courts’ desire to preserve established rules of criminal procedure—ones that were overruled or modified by the U.S. Supreme Court, yet had been applied and relied upon previously within each state. Part III discusses the state courts’ preference for clarity in legal standards, and their concern that untested federal rules might unduly burden the lower state courts’ work. This Note thus rebuts critics’ charges that New Federalism is an inherently “activist” endeavor, since both a desire to preserve established rules and a preference for clarity are principles rooted in “conservative” values of reliance, stability, and effective law enforcement.