*1 ARSDALL VAN DELAWARE v. 7, April January 1986 Decided Argued
No. 84-1279. BURGER, Court, in which Rehnquist, J., opinion delivered O’ConnoR, JJ., joined. Blackmun, Powell, Brennan, and J., and C. p. 684. concurring judgment, post, in the J., opinion White, filed an Stevens, J., dissenting post, p. filed Marshall, J., post, p. and opinions. peti- argued cause for Fairbanks, Jr., E.
Richard Oberly III, M. were Charles him on the briefs With tioner. Gary Myers Loren Attorney A. Delaware, General of Attorneys Deputy Meyers, General. C. argued for the United States Jr., the cause Larkin,
Paul J. urging him on the brief reversal. With curiae as amicus Attorney Acting Fried, Assistant were Solicitor General Frey, Deputy Trott, Solicitor General and Vincent General *2 L. Gambale. respondent. argued the cause for With
John Williams
N. Nicholas.
him on the brief was William
opinion
delivered the
of the Court.
Rehnquist
Justice
Respondent Robert Van Arsdall was convicted of murder
Supreme
in
trial court. The
Court of Delaware
a Delaware
ground
conviction on the
that the trial court,
reversed his
improperly
restricting
defense counsel’s cross-examination
part
prosecution
designed
on the
of a
witness,
to show bias
respondent’s
rights
had violated
confrontation
under the
Fourteenth Amendments to the United
Sixth and
States
required
and that such violation
automatic re-
Constitution,
agree
Shortly midnight January Epps after on Doris was Smyrna, apartment in in Delaware, stabbed to death an after all-day party. Respondent Year’s Eve an New and Daniel Pregent, by respondent’s testimony who were the two people apartment Epps in at the time killed, with she was charged were arrested at the scene of the crime and with separate respondent Epps’ murder. At was trials, convicted Pregent acquitted. was and against respondent
The State’s case was based on cir- proceeded theory evidence, cumstantial and on the that re- Epps Pregent spondent doing had either killed or assisted partygoers party so. Several of the testified about the and killing. party, the scene after the which lasted from morning shortly 31, 1981, late of December until before midnight, adjacent apartments Pregent in the was held and Respondent, Robert Fleetwood. who was one of at least a guests during party dozen who attended the course of the day, stopped periods had in for two brief the late afternoon early evening and then a third returned for time at about p.m. By party Pregent 11:30 time the over. was had guest, quarreled hallway with a hole in female kicked a wall Epps and had to An be restrained. intoxicated had been placed Pregent’s apartment passing on a sofa bed after out. shortly p.m., And before a second altercation some kind prompting party apart- occurred, Fleetwood to closethe in his everyone except ment to his friends, two Alice Meinier and respondent Pregent’s apart- Mark Mood. When returned only Pregent Epps present. ment at 11:30, about were prosecution Robert was Fleetwood the 10th of 16 wit- *3 recounting nesses. to addition uncontroverted facts party, about the testified he that sometime between 11 and p.m. Pregent’s 11:30 he walked across the hall, looked into living doorway, respondent sitting room from the and saw on edge Pregent’s of the next the sofa bed to feet. Fleetwood, complete did not who have a view of the did bed, not see Epps anyone apartment. Upon returning or else the to apartment, stayed long enough his own Fleetwood awake to nearby ring point hear the Year, bells New at which he passed App. out. 82-85.
Meinier, who with Mood had remained awake in Fleet- apartment, roughly respond- wood’s testified that at a.m. Respondent’s ent knocked at Fleetwood’s door. shirt and spattered holding long, hands blood, were with and was he According respondent blood-covered knife. to Meinier, gotten fight” “got that “he in a stated had but that he them turning Id., back.” at 130. After knife the over to Mood washing respondent hands, and his “I said think there’s something wrong Id., the across hall.” at 132. Meinier Pregent’s apartment Epps’ body to went and discovered lying pool in a of blood on the floor. kitchen Mood then police, respondent the who summoned found Fleetwood’s blood-splattered Pregent asleep apartment sofa on the living room. bed his testimony partygoers the of the
In addition to the Pregent’s postarrest arresting officers, the State introduced postarrest respondent’s statements, and statement, two things, expert. Among testimony other the ex- of a forensic pert the nature and source of bloodstains testified about clothing. respondent’s on
During cross-examination, defense counsel Fleetwood’s by questioning sought impeach him Fleetwood about charge against being on of a criminal drunk dismissal him— speak prosecutor highway agreed he had with the —after Epps’ prosecutor objected, murder. When about question on the mat- trial court allowed counsel Fleetwood presence jury. ter outside the edged of the Fleetwood acknowl- charge dropped in that the drunkenness had been ex- speak prosecutor change promise to with the for his about the agreement but he denied that the had affected his murder, any testimony.1 The trial court barred cross-examination agreement, citing Delaware Rule of Evidence about permit 403.2 The court also refused to defense counsel to being questioned Fleetwood his cross-examine about police in connection with an unrelated homicide that had oc- Epps’ after voir dire curred murder. On conducted outside presence jury, Fleetwood denied that he had been *4 why understanding charge dropped, asked the 1 When about his was respondent stated:
“Well, you I I that did understand that did feel wanted to make sure that talking you I I I knew what was about and do feel that wanted to make my story together coming why I sure had before here. So that is I did dropped.” App. feel that it was 106. virtually Delaware Rule of Evidence which is to Federal identical 403, provides: Rule of Evidence relevant, may
“Although probative evidence be excluded if its value is substantially outweighed by danger prejudice, the of unfair confusion of jury, by misleading delay, the issues or the or considerations of undue presentation waste of time or needless of cumulative evidence.” any promises, favors, offered inducements, or deals concern- investigation ing exchange testimony that homicide for his respondent’s trial. Respondent was the defense witness. Consistent police, Epps’ his with second statement to the he attributed Pregent. testimony, murder to Consistent with Fleetwood’s Pregent’s apartment, he stated that he had returned to after drinking p.m. with 11:30 friends, about opening closing
Defense counsel admitted in their arguments jury respondent Pregent’s the that inwas apartment Epps closing argument, when was killed. attempting testimony (largely after to discredit Fleetwood’s by emphasizing intoxication), his counsel stressed that all proved testimony respondent was what denied,” “never Danny Pregent’s apartment that “he was at before Doris Epps App. jury was murdered.” 188-189. The re- found spondent guilty first-degree possession murder and of a deadly weapon during felony. the commission a appeal,
bn the Delaware re- reversed spondent’s authority the conviction on of the Confrontation Noting subject Clause. that “the bias of a witness ex- ploration ‘always discrediting at trial and is relevant as affecting weight testimony,”’ witness and his 486 A. (quoting (1974)), at 6 2d, Alaska, Davis v. U. S. judge’s ruling respond- court found that the trial denied right his ent constitutional to effective cross-examination. By any barring cross-examination Fleetwood about public charge, ruling kept dismissal of the drunkenness jury concerning from facts bias that were central to assessing reliability. rejected Fleetwood’s The court argument testimony State’s that since “Fleetwood’s basic unimportant,” in nature and was cumulative the Confronta- beyond tion Clause error was harmless a reasonable doubt. prohibition 486 A. at 7. The held that “a 2d, court blanket against exploring potential through bias cross-examination” *5 678 impact that “the actual error,” prejudicial “a se so per
is Ibid.3 is not examined.” of such an error 923 and now va- certiorari, (1985), 473 U. S. We granted remand. cate and of the Sixth Amendment guaran-
The Confrontation Clause in a criminal “to prosecution of an accused right tees him.” The against right with the witnesses be confronted for defendants state confrontation, which is secured of Texas, Pointer v. as federal criminal proceedings, as well more than allowed to being 400 “means (1965), 380 U. S. Alaska, Davis 415 v. the witness physically.” confront main and essential Indeed, purpose at 315. S., “‘[t]he U. to secure opponent opportunity confrontation is Id., 5 Wig- cross-examination.’” at 315-316 J. (quoting (3d 1940)) § 123 ed. more, 1395, p. (emphasis orig- Evidence inal). have here, recognized relevance particular “[w]e Of of a witness’ motivation is testifying the exposure jurisdiction Respondent that this Court is without to hear this asserts Supreme automatic reversal rule rests case because the Delaware Court’s independent ground. argues He that the rule adequate an and state on prophy adopted not on the basis of federal constitutional law but as a was device, “superintending” authority, announced under that court’s to lactic importance unequivocal message” judges to state trial about the “send an Respondent Brief for 41. We permitting liberal cross-examination. disagree. adequate that a state-court decision rests on and will not assume
“[W]e
fairly appears
grounds
‘state court decision
independent state
when the
law,
law,
primarily on federal
or to be interwoven with the federal
rest
any
ground
adequacy
independence
possible
state law
when the
opinion.’”
Mississippi,
from the face of the
Caldwell
not clear
(1985)
Long,
1040-
(quoting Michigan v.
463 U. S.
S.
U.
(1983)).
Court,
opinion
which makes
Delaware
analysis,
requisite “plain
state eases in its
lacks the
use of both federal and
Long,
grounds. Michigan
supra,
that it rests on
statement”
Indeed,
opinion
any “superintend-
1044.
makes no reference
authority,
suggests
prophylactic
the existence of a state
ing”
and nowhere
right. We
designed
protection
for a federal constitutional
rule
insure
resting on federal law.
the decision below as
read
*6
important
proper
constitutionally pro
a
and
function of the
right
supra,
tected
Davis,
of cross-examination.”
at 316-317
(1959)).
(citing
McElroy,
Greene
into the that Fleetwood would as a be biased re- pending public sult of the State’s dismissal of his drunkenness charge. By cutting questioning all thus off an about event place jury might that the State conceded had taken a that reasonably found a have furnished witness motive for favoring prosecution testimony, ruling in his the court’s respondent’s rights by violated secured the Confrontation Clause.4 tentatively suggests
The State somewhat a that defendant prejudice should to show have “outcome determinative” a order to state violation of the Clause: Confrontation Unless particular limitation on cross-examination created a rea- possibility jury guilty sonable that the returned an inaccurate The Delaware Court did not decide the trial whether court preventing respondent cross-examining erred from Fleetwood about the investigation. 1, 7, unrelated 486 A. 2d homicide n. 3 We like question. wise that decline to consider not violate limitation would the Confrontation
verdict, disagree. some constitutional claims While Clause. We require showing prejudice respect a with nature their g., Washington, e. Strickland v. whole, see, trial as (1984) (ineffective counsel), assistance of S. 466 U. Confrontation Clause is on individual witnesses. focus of the Accordingly, prejudice inquiry in
the focus of the determin- right ing the confrontation has been whether violated must particular witness, not on the outcome of the on the entire be in terms It would be contradiction to conclude that a trial. *7 any opportunity to cross-examine the denied wit- defendant right against him nonetheless had been afforded his to nesses right “confrontation]” use of that would not have because jury’s think that a criminal affected the verdict. We defend- by showing of the Confrontation Clause ant states violation prohibited engaging appropri- he from otherwise that was designed prototypical to show a ate cross-examination form part thereby expose witness, of bias on the of the “to jury jurors appropriately from which . . . facts could relating reliability draw inferences to the of the witness.” supra, Respondent Alaska, Davis at 318. v. has met that jury might signifi- A burden here: reasonable have received a cantly impression credibility different of Fleetwood’s had respondent’s permitted pursue proposed counsel been his line of cross-examination. concluding judge’s ruling
After
that the trial
was con-
error,
stitutional
the Delaware
Court rebuffed
“beyond the State’s effort to show
reasonable doubt that
complained
the error
of did not contribute to the verdict
(1967).
Chapman
obtained,”
v.
386 U. S.
California,
doing,
explanation why
Chapman
In
it offered no
so
applied
standard,
harmless-error
which we have
in other
g., Harrington
e.
cases,
Confrontation Clause
v. California,
(1969);
Florida,
v.
395 U. S.
Schneble
U. S. 427
(1972),
inapplicable
respondent’s
here. We find
efforts to
unconvincing.
defend the automatic reversal rule
more than
occasion,
As we have stressed on
one
Con-
defendant
trial,
stitution entitles a criminal
to a fair
not a
perfect
g.,
Hasting,
one. E.
United States
461 U. S.
(1983);
States,
Bruton v. United
391 U. S.
rejected
argument
Chapman,
this Court
that
regardless
errors,
all federal constitutional
of their nature or
require
judgment
case,
reversal of a
circumstances
The Court
that in
conviction.
reasoned
the context of a
particular
certain
case,
errors,
constitutional
no less than
may have been
errors,
other
“harmless”
terms of their
factfinding process
Chapman,
on the
at trial.
effect
Since
repeatedly
principle
we have
reaffirmed the
an
that
other-
reviewing
wise valid conviction should not be set aside if the
may confidently say,
court
on the whole
record,
the con-
beyond
stitutional error was harmless
a reasonable doubt.
g.,
Hasting, supra (improper
E.
United States
comment
trial);
Illinois,
on defendant’s silence at
Moore v.
434 U. S.
(1977) (admission
220, 232
of identification
obtained
vio-
counsel);
right
Harrington
supra
lation of
v. California,
(admission
statement).
nontestifying
codefendant’s
recognizes
principle
harmless-error doctrine
that the cen-
purpose
ques-
tral
of a criminal trial is to decide the factual
*8
guilt
tion of the defendant’s
or innocence, United States v.
(1975),
promotes public
Nobles, 422
U.
S.
re-
spect
process by focusing
underlying
for the criminal
on the
virtually
fairness of the trial rather than on the
inevitable
presence
Traynor,
of immaterial error. Cf. R.
The Riddle of
(1970)(“Reversal
regardless
Harmless Error 50
for error,
judgment, encourages litigants
its effect on the
to abuse the
it”).
judicial process
public
and bestirs the
to ridicule
At the same
we have observed that
time,
some constitu-
denying
tional errors —such as
a defendant the assistance of
compelling
counsel at
him
trial, or
to stand trial
before trier
of fact with a financial
stake
the outcome—are so funda-
pervasive
they require
mental and
reversal without re-
gard
particular
to the facts or circumstances of the
case.
Chapman, supra,
(citing,
alia,
n. 8
inter
Gideon v.
Wainwright,
(1963),
Turney
Respondent Harrington seeks to blunt the force of in es- sentially ways. suggests First, two he that this Court’s de- application cision in Davis v. Alaska forecloses of harmless- analysis particular error to the sort of Confrontation Clause citing following language violation involved here, near opinion: the end of the Court’s “[Davis] right was thus denied the of effective cross- ‘
examination which “would be constitutional error of the magnitude showing first and no amount of want of prejudice would cure it.” Janis, Brookhart v. 384 U. S. 5 Bruton had held that receipt joint at a trial of the incriminating nontestifying deprived statement of a codefendent right Bruton of his Harrington, cross-examine an adverse witness. the trial court admit pretrial ted the statements of two codefendants who testify. did not implicated Harrington by statements placing him at the scene of the rob bery, plainly and their admission violated Bruton. This Court neverthe Harrington’s conviction, less affirmed objection that Bruton error over his could Noting never be harmless. wrongfully that the admitted evidence was cumulative proof and that the untainted guilt defendant’s was *9 overwhelming, the Court concluded that the beyond error was harmless S., reasonable doubt. 395 U. at 254. Illinois, Smith 3.’” 415 U. at 318 S., (quoting (1968)). S.
U. Davis however, Read properly, does not an support auto- rule, matic reversal and the above-quoted language merely reflects view that on the facts of that case the trial court’s error had done “serious to the damage” petitioner’s defense.
Davis was with charged a safe from a stealing bar. The found the stolen safe near police abandoned of Rich- home Green, ard who testified at trial he that had seen Davis en- in near site gaged suspicious activity this on the of the day crime. Defense counsel was from on barred cross- eliciting examination that Green was on juvenile for bur- probation glary both the time of his pretrial identification of Davis and at the time of trial. The sought defense that suggest may Green have slanted his account the State’s favor either to shift himself suspicion away from or to avoid rev- ocation of probation for failing “cooperate.” 415 U. S., at 310-311. This conviction, Court reversed Davis’ empha- that sizing tesimony Green’s was “crucial” and that there was a “real that possibility” pursuit the excluded line of im- “[sjerious peachment evidence would have done damage to Id., strength State’s case.” at 319. So despite Chapman, Davis plainly rests of a absence reference to on the conclusion on the that facts that case, the error the guilty verdict. Davis well have contributed to might should not be read as establishing, without cate- analysis, gorical exception the harmless-error rule. per se
Respondent’s argument second of a support rever- sal is that rule Confrontation case, Clause error Davis involved the exclusion of evidence, like which is an- Harrington California, distinct from alytically which involved the erroneous admission of harmless testi- Because it mony. to know impossible how ex- wrongfully cluded evidence would have affected jury, argument Harrington runs, reversal is mandated. But cannot be so easily dispatched. Respondent, like Harrington, was denied *10 testimony opportunity an the adverse to cast doubt on an prosecution to the was thus able both cases witness.6 constitutionally subject not to that was introduce evidence adequate in the And cases review- both cross-examination. not-fully- ing decide the court be able to whether should might reliability impeached the affected the evidence have factfinding process at trial. constitutionally
Accordingly, improper we hold that the impeach opportunity to a witness for of a defendant’s denial subject errors, Clause is bias, like other Confrontation analysis. inquiry Chapman The correct is harmless-error assuming damaging potential of that the the cross- whether, fully reviewing might realized, a court examination were beyond say the error was harmless a reason- nonetheless particu- such an error is harmless able doubt. Whether readily depends upon a factors, lar case host of all accessible importance reviewing courts. These factors include the prosecution’s testimony case, in the of the witness’ whether presence testimony the or cumulative, the was absence corroborating contradicting testimony evidence or points, witness on material the extent of cross-examination permitted, strength and, course, otherwise the overall prosecution’s Harrington, 254; case. 395 U. S., Cf. Florida, at S., Schneble v. 405 U. 432. the Confronta-
We believe that determination whether beyond error case was harmless a rea- tion Clause sonable is best left to the Delaware Court doubt Accordingly, judgment in the first instance. that court’s proceedings further vacated, and the case is remanded for opinion. not inconsistent with this
It is so ordered. White, concurring judgment. Justice The Amendment confers on defendants criminal Sixth right against” cases the “to be confronted with the witnesses opportunity 6 Respondent he does not contend that was denied exculpatory elicit evidence from Fleetwood. interpreted meaning has these words as
them. being physically, than allowed to confront the more witnesses right testimony more than the to be tried live rather than opportunity affidavits. It includes effective cross- dispute I not here examination of State’s witnesses. do language; they interpretations these of the constitutional but *11 require today, hold, neither nor advise the as it does judge that the Amendment is violated whenever a trial limits particular jury might cross-examination of a witness and the significantly impression have received a different of the wit- credibility curtailed, ness’ had cross-examination not been consequences possibly if even the limitation and its could not any have had effect on the outcome of the trial.
It makes much more sense to hold that no violation of the Confrontation Clause has occurred unless there is some likeli- agree that the I hood outcome the trial was affected. the Delaware Court erred and that we should remand for prejudice, I consideration of but would not now hold that a ultimately If constitutional violation occurred. it is held that the outcome have been the same whether or not would cross- limited, examination had been no Sixth Amendment violation occurred this case.
I thus treat claim a would of Sixth Amendment viola- just majority tion as the would treat limitations on cross- judge’s fall examination that would within the trial “wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on among things, prejudice, other about, harassment, concerns safety, interrogation issues, confusion of the or witness’ only repetitive marginally or Ante, that is relevant.” at 679. limitations not violations at all, These “reasonable” are obvi- ously they impact can have on the because no fairness of the imposed in trial. Yet the curtailment of cross-examination and an infraction this case is said to be unreasonable though may beyond it held Amendment even be reasonable impact jury on the doubt that it had no whatsoever result the reached. judge ignore being
No welcomes or can told that he com- mitted a constitutional if violation, even the conviction is by finding. Being saved a harmless-error advised Court that there is an area of cross-examination curtailment that is not harmless but not a constitutional violation but at the though same time an area of curtailment that even harmless is an infraction of our fundamental charter, judge surely permit will tend to the examination rather than being guilty misunderstanding risk the constitutional re- quirements of a fair trial. I would not so undermine the authority judge to restrict cross-examination in a having appreciable impact manner reliability no on the particularly language the outcome, purpose since the specific provision at issue do not otherwise dictate. ultimately Even if it is held this case that the error was quite willing harmless, as Court is to assume will be the judge case, the has been declared derelict and commanded again not to restrict cross-examination this manner even though rightly signifi- he is convinced, and so, that it has no *12 cance whatsoever in terms of the outcome of the trial. With respect, join opinion. all due I cannot the Court’s Justice Marshall, dissenting. today properly complete
The Court holds that a denial of designed explore prosecu- cross-examination to the bias of a tion witness violates the Confrontation Clause, whether or not the denial influenced the outcome of the trial and whether important prosecution’s or not the witness was to the case. permit Nevertheless, the Court remands order to the apply analysis court to harmless-error to that I violation. respectfully part must dissent from the latter of the Court’s holding. importance I believe that of cross-examination great complete a criminal to trial is so that a denial of other- proper concerning potential wise cross-examination bias prosecution of a witness should lead to no less than a reversal of the conviction. applicable holding to the Confrontation Clause right of cross-examination referred to
States, requirement for the kind of as and fundamental “an essential country's goal.” constitutional Pointer fair which is this trial (1965). If indeed the harmless- Texas, U. S. accuracy of a crimi- on the fairness and error doctrine focuses easily majority so it is odd that trial, ante, nal see applies type and accu- that calls both fairness it to error unique degree. racy question to an into almost factfinding proc- centrality to the The of cross-examination unlikely appellate particularly court it that an can ess makes had no effect on that a denial of cross-examination determine of a trial. outcome ordinarily “[T]he cannot measure whether harm court appellant an he has been denied the has ensued to when against opportunity him, to witnesses cross-examine given allowed, all the Had cross-examination been risks. might impeach example, it have a witness for served corroborating testimony, it thus cast doubt on or Only might exculpatory on evidence. rare elicited have appellate court able to find that the will an be occasions tangential, testimony or so the witness was so well clearly so to attack that corroborated, or invulnerable right was harm- to cross-examination the denial of Traynor, Error Riddle of Harmless The less.” R. testimony particular was corrobo- witness’ fact that a expose right harmless a denial rated cannot render strategic may reasons have valid his Defense counsel bias. aggressively testimony challenging while one witness’ corroborating gently. treating Jurors eval- witness more *13 may give great uating choose to the witnesses’ demeanor ignoring testimony weight the of one witness while to the testimony event, of another. either denial similar may deprive concerning the a witness’ bias cross-examination genuine opportunity expose in to flaws the of its defense best prosecution’s case—flaws the that cold record will not reveal appellate court. to an appellate attempting apply an court
Indeed, harmless- analysis is faced error with a formidable The burden. court satisfy merely jury itself cannot that the have would reached question appeared had the same result the witness not beyond it be all; at must convinced a reasonable doubt that jury have the would reached same even if result cross- jury affirmatively had led the examination believe that the to. lying. Moreover, witness was court must conclude, be- yond exculpatory no doubt, a reasonable evidence to the emerged genuinely defendant have from a could adversarial testing witness. I that a think court can make such a only in circumstances, determination the rarest of and a rule per justified. se reversal is therefore especially The Confrontation Clause violation this case is pernicious. jury essentially empty was misled, gesture of cross-examination, to believe that the defense at- torney permitted disposal had been to use all the tools his expose testimony. Having weaknesses Fleetwood’s appeared survived what to be counsel’sbest efforts to under- credibility, testimony mine the witness’ Fleetwood’s neces- sarily weight jury more carried with the than would the same testimony given apparent opportunity without an to cross- examine. analysis unnecessary
This
makes it
as
strain,
does majority,
apparent per
to reconcile se
rule Davis v.
(1974),
analy-
S. 308
Alaska, 415 U.
with
harmless-error
employed Harrington
sis
v. California,
I would hold that Davis mandates reversal whenever prosecution puts on witness the stand but the court permit does concerning not- the defense to cross-examine rel- potential evant bias. I therefore dissent from the Court’s permit apply decision to the Delaware Court to
689 analysis violation to the Confrontation Clause harmless-error in this case. require emphasize that this
I also write Court cannot to analysis apply violations of harmless-error state courts to Johnson, v. the Federal See Connecticut Constitution. 460 concurring judgment). J., (1983) (Stevens, U. S. 88 73, governs has stated that federal this law While Court application error violations of the Federal of harmless Chapman v. Constitution, California, see S. 18, 386 U. cannot mean more than that state courts must (1967), convictions when the Constitution so mandates. reverse particular rem- the Constitution does not mandate When many admittedly edy, may not “declare this Court which may [remedial] alternatives State choose.” constitutional (footnote omitted). (Harlan, dissenting) J., at We Id., never held that the Federal Constitution forbids state have pursuant convictions to state to reverse certain sub- courts imagine provision procedural I nor can what law, stantive or grant power. could us such a Thus the of the Constitution Supreme free on remand Delaware Court remains to decide though applied that even it the substantive standards to determine whether error its occurred, Sixth Amendment analysis product was the of state rather than harmless-error federal law. Stevens, dissenting.
Justice way open judgment to reverse the The Court finds opinion “[t]he case because of the Delaware of both and state cases in Court, which makes use federal its analysis, requisite ‘plain lacks the statement’ that it rests on holding, grounds.” n. 3.1 In so Ante, judgment ground on a
1 Adetermination that a state-court rests federal such a case. See Fox jurisdiction in prerequisite is a to the exercise of our (1935) (“[W]here Muller, Corp. Film judgment 296 U. S. upon grounds, court rests two one of which is federal and the other a state character, jurisdiction ground fails if the non-federal non-federal our support independent ground adequate judgment”); the federal path Michigan Long, continues down the it marked (1983), when it announced that it U. S. *15 jurisdiction presume to review state-court would henceforth “plain judgments judgments statement” that such absent grounds.2 rest on state today’s
Despite chosen, the directness of the route destina Michigan Long, tion not foreordained. Unlike v. was presume jurisdiction case concerns whether the Court should supreme remedy to review a state court’s for a federal con traditionally enjoyed courts have stitutional violation. Since fashion broad discretion to remedies —even remedies forbid ding lawful acts—once a constitutional otherwise violation (1875) City 590, 626, 633, Memphis, (construing Murdock v. 20 Wall. statute). requirement part jurisdictional Sandalow, Henry as See also Mississippi Adequate Proposals v. and the State Ground: for a Revised Doctrine, 187, 188-189, (discussing possible 1965 S. Ct. Rev. and n. 6 con- rule). adequate independent ground stitutional basis for principal question Michigan Long v. was whether a state court’s determination that a search violated the State Constitution was independent of its conclusion that it violated the Federal Constitution. surveyed approaches, The Court the various decided that “none of [them] method,” preferred S., 1039, thus far recommends itself as the 463 U. at presumption it and then selected the did as the most administrable of the choices, id., agreed I available at 1041. with the Court that “we are left presumptions: taking juris with a choice between two one in favor of our diction, it,” id., against explained and one at reviewing but that “in courts, primary" although the decisions of state not exclusive—“role — persons of this Court is to make sure that who seek to vindicate federal (first added). fairly heard,” id., rights emphasis have been at 1068 See (1984) Meyers, (Stevens, J., Florida dissenting) U. S. (“But forget purpose we must not that a central of our written Constitu tion, specifically unique and more of its creation of a life-tenured federal judiciary, rights firmly against to ensure that certain pos was are secured Governments”). oppression Compare sible the Federal or State Long my Michigan misreading “proposing] Court’s dissent as novel view that this Court should never review a state court decision unless right endangered.” the Court wishes to vindicate a federal that has been added). S., (emphasis 463 U. n. 8 proved,3 logical has been the more direction would have been presume merely exercising that a state court is its normal supervisory power clearly over state officialsunless it states requires particular procedure that federal law to be fol contrary presumption lowed. The Court’s works a further power, advancement of its own but it flouts this Court’s best approach questions traditions: it deviates from our normal subject-matter jurisdiction, departs long it from our standing reserving practice of decision on federal constitu purely standpoint tional Even considered law. from the managing discretionary pre our own docket, the Court’s sumption includes a selection bias inconsistent with the les history statutory jurisdic sons of as revealed in this Court’s judgments Finally, tion over the of state courts. the Court’s willingness jurisdiction presume to review state remedies *16 respect a lack of I evidences for state courts and be will, fear, a recurrent source of friction between the federal and state judiciaries.
I govern jurisdiction The rules that this Court’s to review judgments should, course, state-court be consistent with jurisdictional principles govern ju- that the entire federal 3 ante, g., Hudson, e. Teachers v. See, 309-310, 22, at n. and cases explained my opinion I in concurring judgment cited therein. As in the in (1983) (footnotes omitted): Johnson, Connecticut v. 73, 460 U. S. 88 trial, “If federal constitutional error occurs a state criminal federal law places appellate disposition certain limits on the state court’s of the case. it must reverse. sufficiently grievous, If the error is If the error is less grievous, beyond it also must reverse unless it declares its conviction a rea- sonable doubt that the federal error was harmless. But federal law does require appellate determination; court not to make a harmless-error merely 'permits appropriate it the state court to do so in cases. This is all (1967).” Chapman California, held in v. 386 18 the Court U. S. quite right point Marshall is therefore out that “this Justice require apply analysis cannot state courts to harmless-error to violations Ante, at 689. Federal Constitution.” 692 example system. this Court Indeed, because
dicial way inevitably system affects the which entire sets for the powers, judges we have to evaluate their own tend all federal obligation special con- that our conclusions to make sure a cerning legitimate jurisdiction firm and rest on a our own foundation. design, origin limited are courts of federal courts authority only they
jurisdiction; conferred on exercise pursuant by congressional Ill and enactments them Art. Williamsport Dist., Area School Bender v. thereto. See Like other fed- cited therein. all ante, 541, and cases expressly given power it. has courts, eral this Court duty inescapable contrast to that of it is our Because —in very authoritatively political in- construe branches —to early power, and limit that the Court define struments which every history wisely adopted presumption that fed- its contrary jurisdiction” “the unless eral court is “without appears Bridge affirmatively King from the record.” Co. (1887). County, Thomas 225, Accord, 226 U. S. v. Otoe (1904); Minnesota v. Trustees, Board 195U. S. That Co., Northern Securities U. S. any just presumption in this Court as as “inflexible” other federal court.4 subject- unquestionably within this Court’s
Even for cases any pretension jurisdiction, we have disclaimed matter Swan, (1884) M. R. C. & L. Co. U. S. 4 Cf. Mansfield *17 (“[T]he judicial rule, power and limits of the of springing from the nature States, exception, requires this is inflexible and without which the United jurisdiction, and, court, motion, deny own in the exercise of its own its States, power, all other courts of the United all appellate of its that of affirmatively appear in on jurisdiction does not the record cases where such every of which, power, of that it is called to act. On writ in the exercise jurisdiction, question fundamental is that of appeal, or the first and error court, court from the record comes. first, this and then of the which of itself, even when bound to ask and answer for question This the court is parties of suggested, respect to the relation not otherwise and without it”).
693 questions arising under the Federal Constitution when reach fairly presented Thus, an basis of decision itself. alternative by respected opinions in one of the most ever written a Mem- Court, ber of this Justice Brandéis wrote: governance developed, [has] for its own “The Court confessedly jurisdiction, a the cases within its series of passing upon large rules under which it has avoided part questions pressed upon of all the constitutional it for They decision. are: pass upon [federal] . not
“. . The Court will con although properly question presented stitutional present ground record, if there is also some other upon may disposed which the case be of.” Ashwander (1936) (concurring A, 288, v. TV 297 U. S. 346-347 opinion).6 remained faithful to these tenets Court has basic when system. reviewing
it in the federal cases arise See Williamsport ante, Bender Area at Dist., 545-549; v. School Regents University Michigan Ewing, v. 474 U. S. of (1985). Ironically, contrary 222-223 however—and to tra- dition6—the has taken a different stance when it is Co., g., e. Louisville & Nashville R. 6 See, Siler v. 213 U. S. (1909) (duty question to decide first a of state the Federal District Court law, merely pendent jurisdiction, pos if over which it has order to avoid County Santa Clara Southern question); sible a federal constitutional Co., R. Pennhurst State 394, 410-411, U. S. Pacific School & Halderman, (1984), Hospital qualify U. S. did not proscribed principle; it held that the Eleventh Amendment avoidance cases, injunctive relief for violations of state law in certain the award avoiding thereby removing the basis for decision of federal constitutional id., (“Nothing in our questions in this class of eases. See n. 28 the Siler desirability applying doubt on the decision is meant to cast jurisdiction to decide the principle in cases where the federal court has issues”). state-law “policy necessity disposing of strict The Court’s time-honored issues,” by issues . . which “constitutional . will not constitutional [federal] *18 Al- from state to us courts. coming to review cases asked inter- to refrain from duty our perform “[w]e cannot though ones also to review federal in state law and fering questions other the one or the a determination whether without making Pitcairn, Herb S. the U. controls judgment,” us so the serve (1945), jurisdictional precepts in merit in rendered federal court judgments well reviewing judgments Abjur- in review of state-court too. observance the unwisely special the marks analogy, federal ing I it owes the of courts to which believe scrutiny decisions respect. special
II that the Court applies The jurisdictional presumption —and in turn a hidden selection bias that today harbors extends — Court’s Because conception reveals a of this role. disturbing consistent with ground only support judgment a state can presents ground upon other which the be determined if the record some may of,” Army Municipal Court, disposed be Rescue 331 U. S. case (1947), expositions appeal one of its forceful in an received most judgment by a from a rendered state court: substance, in policy grounded ... is one of considerations which “[T]he controversy case particular all such limitations. Like the and transcend against entertaining political it is policy questions, limitation itself the and system appropriate the federal and this Court’s one of the rules basic to place within that structure. policy’s foundations, if not all of which also sustain
“The
ultimate
some
limitation,
up
place
jurisdictional
goes
unique
lie
all that
to make
the
the
character,
scheme,
judicial
governmental
of
of
action for
in our
review
constitutionality.
delicacy
function, particu-
They are found
the
of that
larly
consequences
stemming
from con-
possible
view
for others
also
roots;
consequences;
con-
comparative finality
of those
stitutional
power
judgment
repositories
due
sideration
to the
other
constitutional
necessity,
concerning
scope
authority;
government
their
if
is to
including
constitutionally,
keep
power,
for each to
its
function
within
especially
courts;
judicial process, arising
the inherent limitations
enforcement;
largely negative character
limited resources of
from its
importance
adjudication in
paramount
our
withal
of constitutional
(footnotes omitted).
Id.,
system.”
at 568-571
*19
presumption operates
claim,
jurisdictional
the Court’s
federal
that over-
remedies
review of state
to
this Court’s
expand
rights.
federal constitutional
for
violations
compensate
the prov-
have been outside
however, such cases
Historically,
Act
Judiciary
over a
century
For well
ince of this Court.
to review state-court
authority
this Court
of 1789 denied
no
conferring
By
federal claims.7
upholding
judgments
assem-
“the first Congress
judgments,
to review these
power
“taken
Members had
under the Constitution” —whose
bled
Pelican Ins.
Wisconsin
instrument,”
that
part
framing
Co., 127 U. S.
enacted
having
in addition to
265,
(1888),
297
that
this
their conviction
Act —codified
Judiciary
the First
courts
that state
was to ensure
concern
overriding
Court’s
authorize
in 1914 did Congress
Only
federal
respect
rights.
up-
state-court
judgments
take
over
jurisdiction
this Court to
23,
Act of Dec.
right,
of federal constitutional
claims
holding
reflected an un-
that legislation
and even
1914,
790,
38 Stat.
7
85-86,
24,1789,1
as the First Judi
Sept.
Stat.
25 of the Act of
Section
validity
only if
of a
known,
review
provided for
ciary Act was also
“authority,”
the construction of
or
or
treaty
federal or state statute
or of a
statute,
was drawn
treaty,
commission of the Constitution
or
a federal
validity” or
against their
only
[was]
if “the decision
question, and then
exemption”
title,
privilege or
claimed.
right,
“against overly concerned
Congress, which was not
post-Civil War
In 1867 the
respect
to allow review without
sovereignty, revised the section
with
title,
construction,
any
right, privilege,
validity
“where
questions of
or
constitution,
any treaty
or
or statute
immunity is claimed under
or
” Act
held,
authority
under the United States.
exercised
or
or commission
amendment,
by
question raised
2,14
§
386. The
5,1867,
Stat.
of Feb.
state-court de-
could or should review
however,
the Court
was not whether
claims,
the amend-
but whether
of federal constitutional
in favor
cisions
that the Court could
implied repeal of the doctrine
an
ment had effected
subject
question an-
in eases
to review —a
questions
review
federal
Memphis,
in Murdock v.
Wall.
negative
in the
emphatically
swered
Warren,
(1875).
“highly probable”
it
(According to Professor Charles
“every question passed on
actually
provide that
meant to
Congress
that
Supreme
in the
open
reconsideration
should be
the State
History 682
States
Warren,
Court United
2 C.
Court.”
1926)).
(rev. ed.
derstanding
primarily
the Court’s role is
vindicate
subject gave
rights.8 Most of the bills on this
such
“the
right
appeal
litigant
or
an absolute
take a writ
error to
response
legislation
Appeals’
was a
to the
8 The
New York Court of
Lochner-style
decision in Ives v. South Buffalo
process
substantive due
Co.,
g., Rep.
R.
e.
See,
201 N. Y.
Although Congress’ response to the Ives ease demonstrates that there judgment are cases which a state vindicating court’s a federal claim mer- review, perfectly its that view is consistent with the traditional under- standing primary that the function of this Court is to review decisions rejecting Indeed, such claims. of Ives belie the facts any suggestion Congress searching intended review of state-court decisions upholding right. compensation claims of federal The workmen’s legislation was of exceptional importance York, to the by State of New as attested to the fact represented 14-person that it the labor of a commission chaired a United Senator, Y., 284, E., 201 435-436, States N. at 94 N. at and was “based upon array tables, a most voluminous of statistical extracts from the works philosophical countries, of writers and the many industrial laws of all of . the decision is favor though Court. . even
the Supreme under the Federal Constitution.” S. right Rep. of a claim of than Sess., adopt 63d 2d Rather 161, Cong., No. of federal law bills, uniformity which would have placed these review rights by making a with vindication of federal par on Congress at nominally mandatory, such least judgments of to the grant jurisdiction “substitute^] of certiorari or otherwise of the United States issue writ Ibid. Compare decision of the court.” to review the State Act of Dec. 85-86, 23, § with 24,1789, 25,1 Act of Stat. Sept. has the Thus, 790. this Court now 1914, although Stat. decisions federal constitutional defending to review power secondary these cases on our docket is the claim of rights, those disparaging rights.9 to scrutinize judgments the need system dealing that our own with industrial designed are to show which unsound,” id., 287, morally legally at economically, accidents is (In to Ives people of York amended their E., response 437. New N. at supra, Rep. legislation of this kind. S. No. to allow for Constitution 3.) swpra, particular stat- 2; Rep. R. No. Not was this at H. York, constitutionality legislation great ute of concern to New but unsettled: laws were held constitutional New of this kind was “Similar Rep. Washington, States.” H. R. Jersey, and some other State (remarks supra, Rec., Rep. supra, at 2. See Cong. at 276 No. *21 Webb) (New Jersey). example, scholarly support for this view. For Dean strong There is judicial system in our Choper the essential role of review “submits that provisions that category that of constitutional prevent is to violations of the National Choper, Judicial Review and secure individual liberties.” J. id., at 64-65. Process See Political point: makes a similar Professor Dworkin God, gift not a or rights against the Government is “The institution of complex ritual, sport. It is a and troublesome ancient or a national an job securing general benefit practice that makes the Government’s wrongful expensive, and it would be a frivolous and difficult and more more Anyone professes rights to take point. who practice unless it served some them, respecting for must have seriously, praises and who our Government minimum, accept, must at the one or point of what that is. He some sense vague powerful idea of important The first is the but of two ideas. both Kant, idea, philoso- dignity. associated with but defended human This ambiguous, is to reviewed decision be the state-court When judgment rests on a fed- clear that is not even and it exercising jurisdiction ground, is even less the basis for eral tenable.
Ill that decisions to monitor state-court decision Court’s only grounds may may is not histori- on nonfederal not rest or very cally ten- confrontations and risks the disfavored but jurisdictional avoid. The stance would humble a more sions today applied presumption the risk of error favor allocates long power run result, as a over the review; of the Court’s ways treating a man schools, supposes that there are different phers of him as a full member of the human recognizing with that are inconsistent profoundly unjust. community, such treatment is and holds that political equality. sup- This familiar idea of second is the more “The political community are to the of a entitled poses that the weaker members powerful respect government as the more mem- of their same concern themselves, if some men have freedom of de- so that have secured bers good, men must have the general on the then all whatever the effect cision here, defend or elaborate these ideas but freedom. I do not want to same accept anyone rights that citizens have must that who claims to insist very these. ideas close to right against say a man has a fundamental
“It makes sense to that sense, necessary Government, speech, right if that strong in the like free equally dignity, standing his as entitled to concern protect his or personal consequence. like It does not respect, other value of or some otherwise. make sense all, relatively important then the invasion of a rights if make sense
“So treating a man as than very a serious matter. It means less right must be man, worthy than other men. The institution of or as less of concern grave injustice, and that it is rights on the conviction that this is a rests policy efficiency that is nec- paying the incremental cost social or worth wrong say inflating essary prevent it. But then it must be that invading them. If the Government errs on the side rights is as serious as individual, simply pays efficiency than it then it a little more social more, is, already pay; pays a little of the same coin that it has has to it spent. against if it it inflicts an must be But errs individual decided that, reckoning, great it upon him on its own is worth deal of that insult *22 Dworkin, Rights Seriously Takings R. coin to avoid.” judgments inevitably in rest that fact review will the Court grounds. if independent the adequate Even state and on by in of such inherent review the waste is unconcerned Court incongruity by the between the if it is unmoved cases, even pronouncements occa- wholly precatory on such our nature of advisory opinions, prohibition it should of Art. Ill’s sions preroga- upon by the intrusion the inevitable be concerned potential provide source that can courts tives of state respect thereby to undermine threaten of friction depend and conscientious the faithful for we must on which expositions federal law. application of this Court’s of impact trust when the state on mutual is the Less obvious duty— misplaced perhaps sense of out of court on remand — marked boundaries to the its state constitution confines In Montana v. by the Federal Constitution. Court for this (1983), example, this Court va- Jackson, 460 U. S. light of “for further consideration remanded cated and (1983).” doing, so 459 U. S. Neville, Dakota v. South judgment presumed the Montana that this Court Jus- Supreme Constitution. rest on Montana’s did not Court original by Sheehy, joined court’s author of the state tice bitterly disagreed: opinion, rather original opinion case, we had examined this “In our rights guaranteed constitu- citizens under state our light principles, federal constitutional in the tional Supreme has Court the United States Now decisions. commanding interjected to withdraw us effect itself, rights we extend we felt should which constitutional prescribed limits to the citizens back our state Effectively, States the United decisions. the federal judi- rights upon intruded has sovereign ciary state. of this expan- unjustified knuckling to this under “Instead perimeters power our judicial into the federal sion of displeasure by judicial power, our show we should state sovereign can inter- insisting Montana, *23 700 rights guarantee
pret to its citizens to its constitution guaranteed by greater constitution. the federal than those press majority the “If of this Court had the will put question to the United States could issue, we judiciary four-square, Supreme that this State has Court light right interpret in the of fed- its constitution go beyond and to the federal decisions decisions, eral rights granting preserving to its citizens under its 206 Mont. Jackson, constitution.” State v. (1983) (Sheehy, J., 672 P. 2d 349-351, dissenting). (Shea, J., P. at 264-265 id., 357-358, 2d,
See
dissenting).
analysis notwithstanding, one
The Court’s two-sentence
pre-
confident that we have not trenched on state
cannot be
Supreme
rogatives
very
Here,
case.
Delaware
reversing
applied a rule
convictions when the defend-
Court
totally
right
had
denied the
to cross-examine a wit-
ant
been
expressly
ness for bias. The rule was
found to be “consist-
(1974)
and with our
Alaska,
with Davis v.
U. S.
ent
(1983),]
ruling
[v. State,
the Delaware reversing judgment. niously its
h-i <! agree that “the Delaware with Justice Marshall I that... on remand to decide its Court remains free product analysis of state rather than *24 was harmless-error approach Because the Ante, law.” at 689. Court’s federal multiplies, nothing indeed future occa minimize, to does may upon clarify to be called on which state courts sions judgments it law, in fact is their were based on state whether opinion expressed amplify appropriate I in Massachu to the (1984)(concurring judg Upton, in 727, 466 736 setts v. U. S. argu analysis ment), proper “sequence of when an that the by is disclosed the of the State Constitution able violation the court to consider the state constitu is for state record” any in of federal constitutional claim. claim advance tional prac Oregon Supreme I the Court’s case, In that described considering reaching claims before of state constitutional tice law: of federal constitutional issues analyze proper sequence law, in- ‘“The is to the state’s reaching cluding law, its constitutional before federal required, not for the claim. This is sake constitutional parochialism style, of because the state either of or but deny any right claimed the federal Con- not under does fully in fact is when the claim before the court stitution Sterling Cupp, 611, 290 614, state v. Ore. met law.’ (1981).” Upton, 123, 2d 126 Massachusetts 625 P. at S., 466 U. 736.10
10 in constitution should be exam basis for claim the state «[T]he th[e] any amendment. first, the federal fourteenth To before issue under ined customarily done, implicitly claim, admits the federal as is that begin with protect are ineffective to constitution the guarantees state’s the intervention of the federal constitution right and that the asserted . . . as the [I]nsofar the claimant and the state. federal between stands against apply Rights the federal Bill of invoked to amendment is fourteenth ideas, proce- action, of freedom criminal particularly the fields state 702 other courts have ex- time, that at least four state
Since practice considering pressly state constitu- endorsed Michigan Long, response tional claims first.11 dure, taking property, is no compensation for the there reason assumption in state’s accept such an that the values enshrined constitu- tion, in, 1859, say, today must fall short those in the federal Bill corresponding pro- Rights of 1789. And to add a reference state afterthought holding guarantee to a under the worse vision as an federal is provision pro- A a state merely holding than backwards: that constitutional destroys premise holding for a that tects the asserted claim fact Linde, denying is assure.” the state what federal Constitution would Process”, 49 Ore. L. Rev. Without “Due Accord, Courts, Linde, Theory E and State Pluribus —Constitutional (1984) (“My long has that a Ga. L. Rev. own view been state court always responsible deciding law of its before whether the standard, properly issue is state falls short of a national so no federal (footnote protects right” reached the state’s the claimed omit- when law ted)); Linde, Things Rediscovering Rights, First Bills of First: States’ (1980)(“Just rights 9 Balt. as the state U. L. Rev. under constitu- time, they logic tions were first are first also of constitutional *25 law”). views, Utter, thoughtful Swimming For of other discussion see the Jaws of the Crocodile: State Court Comment on Federal Constitutional Grounds, Disposing when of on Issues Cases State Constitutional 63 Texas (1985) (advocating L. Rev. 1025 that state courts comment on is- federal on grounds); Developments sues even in eases decided state constitutional Interpretation Rights, in the Law —The of State 95 Harv. Constitutional (1982) 1324, (contending L. Rev. that state constitutions should protection only supplement rights be used to individual in the event unavailable). under the Federal Constitution is 11 See, Superior Court, 229, 235, 399, g., Large e. 148 Ariz. 714 2dP. (1986) (“Because petitioner he proceed 405 did not articulate whether was process clause, ing provi under the federal or state due and because the matter, only sions of our constitution address state settle we the state construing constitutional issue. In the Arizona Constitution we refer only to federal constitutional law as the of minimum benchmark constitu (citations protection” omitted)); City Jacobsky, tional Portland v. 496 of 1985) (“Just (Me. opinions expressing A. 2d 648 as we avoid on con may when us questions appeal stitutional the issue before on be otherwise resolved, policy judicial impels from a similar restraint us forbear ruling questions provisions on federal constitutional when our state (citations omitted)); Chaisson, may settle the constitution matter” State (1983), for the New example, Hampshire Supreme U. S. Court concluded: defendant, case, a as has invoked the
“When Constitution, of the New we will Hampshire protections first address these claims. (1984) 810, 814-815, (“Next, 486 A. 2d the defendant
125 N. H. that his warrantless arrest violated both the Federal and contends arrest, therefore, should Constitutions and that the fruits of that State We, course, suppressed at trial. address the constitu- have been State constitution, construing the State we refer to Fed- tional issues first. pro- law as the benchmark minimum constitutional eral constitutional (citations 364, 373-374, omitted)); Coe, tection” State v. 101 Wash. 2d (1984) (“Whether constitutionally prior P. 2d restraint was constitution, be treated first under our state for a valid or invalid should First, duty independently inter- of reasons. state courts have a number very apply that stems from the nature of pret and their state constitutions system and the vast differences between the federal and our federal Second, the of the United States and constitutions and courts. histories protection Washington clearly demonstrate that the Constitutions remains rights Washington citizens was intended to be and fundamental important and courts that separate a and function of our state constitution closely sovereignty. By turning to our own con- associated with our respect legal grant proper first we to our own foundations and stitution Third, sovereign by turning first to our own constitution fulfill our duties. body jurisprudence develop independent that will assist this we can understanding state in how that constitution will court and the bar of our Fourth, similar applied. we will be able to assist other states that have be responsible body provisions develop principled, of law that constitutional appear constructed to meet the whim of the moment. will not to have been Washington Finally, apply constitution before the Con- the federal improper premature deciding as and as a ease on state stitution would be sufficed, statutory grounds grounds when would have constitutional reasons”). Collins, essentially the same See also Reliance on State 371, 389-394, Thoughts, 54 Miss. L. Constitutions: Some Random J. *26 cases). (1984) Abrahamson, 56-58, (citing generally See Crimi- nn. Emergence The of State Constitutional nal Law and State Constitutions: (1985) 1141,1157-1158, Law, (discussing practice L. n. 54 63 Texas Rev. generally). state courts practice considering state issues in implement
To this constitutional ones, parties sup- high courts have directed to file advance of federal illuminating possible of decision plemental state constitutional bases briefs 704 unique concept of federalism live under . . We
“. fifty sovereignty between the nation and divided Hampshire Constitution is the funda- The New States. gave sovereign people The charter of our State. mental government, powers Bill of and the limited the State Hampshire part pro- Rights in I of the New Constitution people governmental poten- from excesses and tects abuses. When State constitutional issues have been tial responsibility has a to make an inde- raised, this court protections pendent afforded determination ignore duty, Hampshire If we this New Constitution. up to our to defend our constitution fail to live oath we destroy help the federalism that must be and we carefully safeguarded by people. our so Oregon recently recognized of the State responsibility and stated:
“ guarantees point is that a state’s constitutional ‘The . .. genuine guarantees and remain . . . were meant be against governmental powers, truly misuse of the state’s rising falling independent of the tides of federal case specifics. law both method and State courts cannot independent guar- responsibility their for these abdicate people at least not of the State them- antees, unless rights choose to them and entrust their selves entirely abandon Kennedy, 295 260, to federal law.’ State v. Or. (1983).” 124 Ball, 1323 State v. 271, 1316, 666 P. 2d (1983). H. 471 A. 2d 350 226, 231, 347, N. Hampshire cases,12 the New 1983,
Since over dozen unnecessary thereby disqui- Supreme Court has averted meaning of the Federal Constitution. sitions on the See State v. Ken neglected briefings the initial have such issues. when (1983). Jewett, 1316, nedy, Cf. State v. 260, 268, Ore. 666 P. 2d 1321 295 221, 222, 500 A. 2d 234 Vt. Parole, Bd. 133, 135, Hopps v. State 127 N. H. 500 A. 2d See 119, 122, Cooper, State (1985); 1209, 1212 (1985); 127 N. H. A. 2d Dayutis, ex rel. 101, 105, (1985); State 498 A. 2d State 127 N. H.
705
emerging preference
The
for state constitutional
bases
my
analytical
in lieu
decision
is,
federal ones
view, the
approach
facilitating
independent
best suited to
role of
system.
state constitutions and
state courts
our federal
There is much wisdom in The Chief
admonition
Justice’s
responsible
resolving
that.“State courts . . . are
first for
arising
issues
under their constitutions and statutes and then
passing
concerning
for
on matters
federal law.” Year-End
(1981).
Report
Judiciary
on the
18
every
It must be remembered that
State but Rhode Island
by
Revolutionary
had a written constitution
the close of the
“[F]or
century
inWar
1783.
the first
of this Nation’s his-
tory,
Rights
the Bill of
of the Constitution of the United
solely protection
States was
for the individual in relation to
protected
federal authorities. State Constitutions
the liber-
people
by
ties of the
of the several States from abuse
state
Upton,
authorities.” Massachusetts v.
“The thus is, we im- think, portance, difficulty. but not of much
“The constitution was ordained and established people of the United States for themselves, for their own Cavanaugh, McLellan v. 33, 37, 735, 127 N. H. (1985); 498 A. 2d State 738 Langone, 49, 51-52, v. 731, 127 N. H. 498 A. Corey, State v. (1985); 2d 733 56, 57, 1196, 1197 (1985); 127 N. H. Faragi, State v. 497 A. 2d 1, 127 N. H. 4-5, Camargo, 723, (1985); 498 State v. A. 2d 726 766, 769, 126 N. H. 498 Barham, 292, (1985); State v. 631, A. 2d 295 636, 126 N. H. 1269, 495 A. 2d Farnsworth, (1985); State v. 656, 1273 659, 126 N. 835, H. 497 A. 2d 836 Cimino, (1985); State v. 570, 572, 1197, 126 N. (1985); H. 493 A. 2d 1200 Cote, State 514, 521-522; 1170, (1985); N. H. 2dA. State Chaisson, 125 N. H. 486 A. 2d government government, for the of the individ- and not Each established a constitution it- ual states. *28 provided and, constitution, such limitations self, govern- powers particular of restrictions on the its and judgment ment as its dictated. they imposed In their have
“. . . several constitutions respective governments restrictions on their as such suggested; they deemed wisdom such as most their own subject they proper is a for It on which themselves. exclusively, judge which interfere no far- and with others they supposed to have interest.” than are a common ther super holding case the of the Barron has since been While by ratification of the Fourteenth Amendment and seded incorporation Rights, Bill of the concomi selective theory atrophy of state constitutional was both unnec tant preceded essary and unfortunate.13 State constitutions the obviously were intended to have in Federal Constitution and significance.14 frequent dependent The amendments state Supreme Court: quote To the Vermont legal concepts, meaning and their longs again to hear once of their “One litany argument consists of a of federal buzz origin. legal All too often As Linde has noted: memorized like baseball cards. Justice words self-incrimination, they the rights against claim “take fifth” ‘People do not warnings.” equated are with expect “Miranda Unlawful searches do of violations. Journalists not invoke freedom the fourth amendment rights. unequal All press, they their amendment claims of demand first protection phrased equal as of the laws.”’ State treatment are denials (footnote omitted). Vt., 2d, Jewett, A. at 235 fact, were, early Rights specifically by Bills motivated 14 The by against overreaching individual protecting interest the the majority: following independence, legislatures the state became in- period
“In the active, variety many creasingly enacting great laws. To Americans legislation special serve the interests of appeared some much of Moreover, thought expense of much of it was to vio- groups at the others. Pennsylvania example, For rights natural of individuals. late the many examples report leg- issued in 1784that listed of Censors Council report rights. and bill violations of state constitution islative remitted, judicially claims disal- ‘fines had been established showed that presuppose impor constitutions likewise their continued Thus, tance. whether the national minimum set the Fed high eral Constitution is or low, state constitutions have their unique origins, history, language, own and structure —all of independent which warrant attention and elucidation. State primarily responsible reviewing remain courts for the con safeguarding duct of their branches, own executive rights citizenry, nurturing jurisprudence of their and for rights prov of state constitutional which it is their exclusive expound.15 ince to
lowed, aside, juries property another, verdicts of given set of one secured, dissolved,’ marriages defective titles and so forth. Similar taking place Hampshire abuses were also New other states. The laws, injustice said, brought question of these as James Madison ‘into *29 principle republican Government, fundamental majority that the who governments public rule in such are the safest Guardians both of Good private rights.’ By 1780’s, the end of the ‘the Americans’ inveterate suspicion jealousy political power, once concentrated almost exclu- sively agents, on the Crown and its was transferred to the various state legislatures.’ democracy, Whig political
“As Americans became more distrustful of theory gradually theory predominant. declined and Federalist became began impose greater legislatures Americans restrictions on their safeguard rights. order to individual the 1770’s and 1780’s more and rights rights. Moreover, power leg- more were added to bills of of the rights steadily Increasingly, to limit or islatures alienate was reduced. rights binding legislatures. saying merely bills of became on Instead of legislature ‘ought’ abridge rights, rights began that the not certain bills of provide prevailing among that it ‘shall’not do so. The view the Feder- authority legislature government generally that the and of alists was relatively range should extend to a narrow of issues. summary, revolutionary during period
“In
a ‘tidal-wave of democ-
Thereafter,
1780’s,
racy
swept
during
. . .
over the colonies.’
those
swept
pro-
waters receded and another wave
in: a wave of concern about
tecting ‘private rights against
legislative power.’” Elfen-
uncontrolled
bein,
Myth
Philosophy,
L.
of Conservatism as Constitutional
Iowa
Rev.
courts,
facilitate the
federal
under this
This would
work of
which
precedents must address issues of state constitutional law before
Court’s
City Mesquite
considering claims under the Federal Constitution. See
presume
not
that the Delaware
Because I would
discharge
responsibility, I would dismiss
failed to
writ.
*30
(1982) (“[T]here
Castle, Inc.,
283,
Aladdin’s
455
S.
294-295
is no
v.
U.
if
issue”
state con-
[constitutional]
need
decision
federal
provides “independent support”);
Hargrave,
Askew v.
stitution
cf.
(abstention
(1971)
Co.,
476, 478
under Railroad
v. Pullman
U. S.
Comm’n
(1970) (same).
Bozanich,
(1941)); Reetz