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Friday, August 03, 2012

Gotta' Love Crim Pro Federalism

I just finished teaching a summer session of criminal procedure. Sometimes, by the end of the course, I feel like I have spent more time teaching what the Fourth Amendment doesn't do than what it does do. I teach in Washington State, however, where Article I section 7 of the state constitution provides so many more privacy protections that I can't track all of them for my students as we study the Fourth Amendment—consent rules on refusal warnings and apparent authority, Leon's good faith exception, inventory searches, the automobile exception, open fields, pretext stops, pen registers, garbage searches, student drug testing, sobriety checkpoints, and I'm sure more that I'm overlooking. Here's a new Washington State Supreme Court decision, issued today, dealing with warrantless searches of students at school. Bravo to state constitutions!

Which state-specific criminal procedure rules do readers think are the most important or significant departures from U.S. Supreme Court doctrine? Personally, I always have been partial to New York State's "indelible right to counsel," particularly since the U.S. Supreme Court decided Montejo v. Louisiana.

Posted by Brooks Holland on August 3, 2012 at 12:34 AM in Constitutional thoughts, Criminal Law | Permalink


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Under the Oregon Constitution, the trier of fact in a civil case is not supposed to draw an adverse inference from a defendant's invocation of the right against self-incrimination, whereas in federal courts, such an inference may be drawn.

Posted by: Tung Yin | Aug 3, 2012 12:53:01 AM

Under the New Jersey Constitution, you have a right to privacy in your garbage. Also, you have a right to counsel for any "consequence of magnitude," not just those including imprisonment.

Posted by: Sean M. | Aug 3, 2012 3:05:47 PM

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