Although subject to significant restraints under federal law, states retain considerable leeway in shaping their criminal justice procedures. In their exercise of that authority, states are subject both to influences that push in the direction of individualistic innovation and to countervailing influences that push in the direction of emulating the reforms adopted in other jurisdictions. The end result is state laws of criminal procedure that vary in many respects from state to state but also reflect the significant influence of various “models.” Foremost among those models are the Federal Rules of Criminal Procedure and several federal statutes. Although these federal laws were adopted for a federal criminal justice system that in many ways is quite different from the typical state system, they have been replicated in basic structure and content by numerous states. Exactly why the states have chosen this path is uncertain, but the path is now so well traveled that any changes in the federal law of criminal procedure automatically take on a significance that extends far beyond a federal system that in itself handles only a minute portion of all criminal prosecutions.
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References
1.
Court Statistics Project , State Court Caseload Statistics: Annual Report 1991 (Williamsburg, VA: National Center for State Courts, 1993), pp. 156-159 (1.06 million in 1991, not including 19 nonreporting states with a population of more than 75 million).
2.
2. The developments in constitutional interpretation noted in this paragraph are reviewed in Wayne LaFave and Jerold Israel, Criminal Procedure, 2nd ed., Hornbook Series (St. Paul, MN: West, 1992), pp. 44-77.
3.
3. Ibid., pp. 30-31. Of course, the state's hands are not completely tied even where standards are set by the federal constitution. Those standards prescribe procedural prerequisites that the state must meet as a minimum. They do not prohibit the state from fashioning additional procedural protections if it so desires. As to almost every aspect of criminal procedure regulated by the Constitution, at least one state has done exactly that, and as to some aspects, almost all states have done so—for example, in requiring 12-person juries and unanimous verdicts for felony prosecutions. Ibid.
4.
See also Kevin R. Reitz, “The Federal Role in Sentencing Law and Policy,” this issue of The Annals of the American Academy of Political and Social Science.
5.
5. Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1988). See LaFave and Israel, Criminal Procedure, pp. 248-277. Of less significance is the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to 2000aa-12 (1988) (restricting searches for materials, processed by those engaged in newspaper, broadcast, or similar forms of public communication).
6.
6. Consider, for example, the state adoptions of the various proposals of the National Conference of Commissioners on Uniform State Laws, as reported in Uniform Laws Annotated (St. Paul, MN: West, 1968). Among the National Conference's proposals adopted in all fifty states is one relating to criminal procedure, the Uniform Act to Secure Attendance of Witnesses from without a State in Criminal Proceedings, Uniform Laws Annotated, vol. 11.
7.
Raymond Nimmer , The Nature of System Change: Reform Impact in the Criminal Courts (Chicago: American Bar Foundation, 1978).
8.
Though court rules are promulgated by the state's highest court, legislatures often play a role with respect to those rules, although not as significant a role as with statutes. In many states, judicial rule-making authority is delegated from the legislature; such judicial rules therefore must be consistent with preexisting legislation and can be overridden by subsequent legislation. In other states, the state constitution grants independent rule-making authority to the judiciary. But many of these states further provide that the legislature—often by supermajority only—can override court rules. In only a small group of states does the highest court have authority to prescribe rules of procedure free of a possible legislative override. See DonnaPughet al., Judicial Rule-making: A Compendium (Frederick, MD: University Publications of America, 1984).
9.
9. Law reform proposals of such organizations as the American Bar Association, the National Conference of Commissioners on Uniform State Laws, and the American Law Institute (see nn. 12-15) have been shaped in light of the current structure of the American criminal justice system. It is the academics who have urged a much broader perspective, including incorporation of features of civil systems. See Richard Frase, “Comparative Criminal Justice as a Guide to American Law Reform,”California Law Review, 78:540 (1990).
10.
10. The characterization of state law in this paragraph is not based on a thorough analysis of all of the criminal procedure laws of all of the states. It finds support in my comparison of the laws of all fifty states as they relate to various specific procedures and in the literature surveying in a general fashion the differences in state laws governing particular procedures. See Wayne LaFave and Jerold Israel, Criminal Procedure Treatise (St. Paul, MN: West, 1984).
11.
11. See U.S., Department of Justice, Office of Justice Programs, National Institute of Justice, Public Danger as a Factor in Pretrial Release: A Comparative Analysis of State Laws (Washington, DC: Government Printing Office, 1985).
12.
12. Final Report of the New York Commissioners of Practice and Pleadings—Code of Criminal Procedure (Albany, NY: Weed, Parsons, 1850). The Field Code was not adopted in New York until 1881. It contained several departures from the common law, such as limiting the grand jury to the consideration of evidence that would be admissible at trial and replacement of the writ of error with a simplified appeal procedure. See New York Code of Criminal Procedure §§ 219, 515 (1881).
13.
13. American Law Institute, Code of Criminal Procedure (Philadelphia: American Law Institute, 1931).
14.
14. There is no single listing of statutes or court rules based on the bar association's Standards, but many of those provisions are cited in American Bar Association, Standards for Criminal Justice, 2d ed. (Boston: Little, Brown, 1980) and ibid., supp. (1986). Many of the Standards borrowed from the Federal Rules of Criminal Procedure, although the Standards also proved influential in certain areas—for example, pretrial discovery—where they departed from the Federal Rules provision.
15.
15. American Law Institute, Model Code of Pre-Arraignment Procedure (Proposed Official Draft) (Philadelphia: American Law Institute, 1975).
16.
ibid., supp. (1992).
17.
17. United States Supreme Court, Federal Rules of Criminal Procedure for the United States District Courts (St. Paul, MN: West, 1995).
18.
18. The states with court rules modeled upon the Federal Rules of Criminal Procedure are Alaska, Arizona, Colorado, Delaware, Hawaii, Idaho, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming. States with statutory codes modeled upon the Federal Rules are Kansas, Montana, and Utah.
19.
19. See Jerold Israel, “On Recognizing Variations in State Criminal Procedure,”University of Michigan Journal of Law Reform, 15:465, 485-490 (1982).
20.
20. 18 U.S.C. § 2255 (1988). As for state adoptions, see Donald Wilkes, Federal and State Postconviction Remedies and Relief(Nor-cross, GA: Harrison, 1992), pp. 557-558.
21.
This statute later was replaced by the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-56 (1988). The 1984 act repeated most of the provisions of the 1966 act but added preventive detention provisions. Many states did likewise in their bail statutes or court rules. See National Institute of Justice, Public Danger as a Factor in Pretrial Release. None, however, has adopted the critical provision in the 1984 act, prohibiting a judicial officer from imposing a “financial condition that results in... pretrial detention” and thereby precluding judicial imposition of preventive detention without a finding of dangerousness through the vehicle of simply setting bail at an amount the defendant cannot afford. See 18 U.S.C. § 3142(c) (1988). This is one of the few major statutory innovations in federal procedural law that has not been emulated in at least a few states.
22.
22. 18 U.S.C. §§ 3161-74 (1988). As for state adoptions, see LaFave and Israel, Criminal Procedure Treatise 2:416.
23.
23. The Federal Bureau of Investigation, the Drug Enforcement Administration, and the Immigration and Naturalization Service. See Donald Torres, Handbook of Federal Police and Investigative Agencies (Westport, CT: Greenwood Press, 1985), pp. 126, 135, 178.
24.
24. Court Statistics Project, State Court Caseload Statistics, pp. 40-45 (average criminal filings per state judge of court of general jurisdiction more than five times higher).
25.
25. Participants in the federal system often suggest that the greater competence and political insulation of federal judges, prosecutors, and investigators ensure an element of fairness not so readily inherent in the state system and therefore explain why state law sometimes finds it necessary to grant to the defendant, particularly in the pretrial process, a broader range of rights, or so-called advantages, than in the federal system.
26.
ibid., supp. (1994).
27.
27. See n. 8.
28.
28. Although this was a position that had been strongly urged by such leading Progressive reformers as Roscoe Pound and Arthur Vanderbilt, it was the “success of the Federal Rules” of Civil Procedure that provided the critical “impetus to the drive for judicial rule-making in the states.”Paul Wilson, “Implementation by Court Rule of the Criminal Justice Standards,”American Criminal Law Review, 12:323, 325-328 (1974).
29.
29. John Oakley and Arthur Coon, “The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure,”Washington Law Review, 61:1367 (1986).
30.
30. U.S., Congress, House, H.R. 666, 104th Cong., 1st sess., 25 Jan. 1995 (passed in the House, 8 Feb. 1995, 141 Cong. Rec. H. 1400). This bill would prohibit the exclusion of evidence in federal courts on Fourth Amendment grounds if the “search or seizure” producing the evidence was carried out “in circumstances justifying an objectively reasonable belief that it was in conformity with the Fourth Amendment.”
31.
The symbolism criticism was also directed at the insignificance of Fourth Amendment exclusion of evidence as a cause of lost prosecutions, which would undercut its impact, as several commentators noted, “even if it is eventually extended to state courts.” Ibid.
