State Constitutional Rights and Federal Criminal Trials: The Hollow Promise of the New Judicial Federalism

Abstract

This article explores the intersection between the New Judicial Federalism movement, where state courts interpret their states’ constitutions to provide more expansive protections of individual rights and civil liberties than the federal Constitution requires, and federal criminal law. At least as a general proposition, the United States Supreme Court has significantly narrowed the scope of criminal defendants’ federal constitutional rights in recent years, e.g., interpreting the Fourth, Fifth, and Sixth Amendments in a restrictive fashion in many recent decisions. To counter that trend - Justice Brennan called “the [Supreme] Court’s contraction of federal rights and remedies” - many state courts have “step[ped] into the breach” and held “that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law.” State courts, for example, are increasingly declining to interpret provisions of their state constitutions in pari materia with analogous provisions in the federal constitution, as interpreted by the U.S. Supreme Court. Many state constitutions, moreover, contain provisions that explicitly afford citizens specific rights that have no analogue in the federal constitution, creating further opportunities for the development of a rich, independent body of state constitutional law.The promise of judicial federalism, however, rings hollow in federal criminal trials, to the detriment of not only criminal defendants but our system of federalism. This article highlights a well-established, judicially blessed loophole that not only permits state and local law enforcement to ignore inconvenient state constitutional constraints but creates perverse incentives for them to do so: federal courts routinely admit evidence in federal criminal trials that has been obtained by state and local law enforcement in violation of state law, so long as that evidence is obtained consistent with federal minimum standards. As a practical matter, two salient features of federal law make this possible: the supremacy of federal law and the incredibly broad concurrent jurisdictional authority enjoyed by federal prosecutors. As Judge Richard Posner has observed, then, “State law enforcement officers who violate state law without at the same time violating federal law will often be able to turn over the fruits of their violations to federal law enforcement officers who will as it were do the state officer’s prosecuting, only in federal court.” This article posits that although federal courts do not have any constitutional or statutory obligation to enforce state constitutional rights in federal criminal trials, they have the authority to do so. And this article maintains that myriad normative and policy considerations, including principles of federalism and comity as well as rule-of-law values and the imperative of judicial integrity, militate toward the conclusion that federal courts should honor defendants’ state constitutional rights in federal criminal trials under certain circumstances.