CrimLaw

An Incomplete Thought.

This needs more research and more thought but I will probably not have the time to revisit it anytime soon. Discuss among yourselves. Replies and/or comments are welcome; they may even be posted.

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First Among Equals, Kenneth W. Starr, p.230:

"‘Enumerated powers' and the Tenth Amendment are key elements of federalism. Federalism . . . concerns the division or distribution of power between the federal government and the states. Madison thought that dividing power between two sovereigns would be better than having just one, because the one would help limit the other. This way, liberty, the ultimate end of the Constitution, would have what Madison called a ‘double security.' This is the core of the Constitution's genius: The existence of two governments would better promote liberty than a single unit."

The question which I pose to you, gentle reader, is whether this system fails when one half of the equation refuses to take up its burden?

IMHO, it does. Currently, the entire Virginia legal system, as it applies to the criminal justice, has opted to not participate in federalism. In particular, the courts have entirely withdrawn from the field. They state over and over again that the rights which were so important when the Commonwealth was founded that they are the very first article of the Virginia Constitution (not an afterthought as in the federal constitution) do not provide any particularized protection to the residents of the Commonwealth. There are no protections which exist under the Virginia Constitution, only those protections offered through "co-extensive" coverage of the federal system. See i.e. Stephens v. Commonwealth, 35 Va.App. 141 (2001). In other word, if it isn't in the federal constitution you are not protected under Virginia's Constitution - no matter how clear a protection may appear.

Now, it was not always this way. Prior to federal intervention and imposition of the federal constitution on the States, Virginia used to take the protection of its residents seriously. Virginia's courts would suppress evidence without any mandate from a court above. For instance, consider Omohundro v. Commonwealth, 138 Va. 854, 863 (1924):

"If the confession . . . is ‘an involuntary one, uttered to bring temporal good or avert temporal evil, even where the anticipated benefit is small (it) will be rejected.'"

The Virginia court adopts this standard from contemporary advisory sources but then goes on to cite Shifflet's Case, 14 Gratt. 652 and Smith's Case, 10 Gratt 734 to show this is a long standing Virginia precedent. However, in the modern era this case would not even be given serious consideration (although I cannot find any case overruling it)

Those who favor a court which refuses to actually interpret the Virginia Constitution often frame their arguments in terms similar to this: A court truly basing its determinations solely on the Virginia Constitution would arrive at standards more favorable to those accused than the federal constitution demands. It would also arrive at standards more favorable to law enforcement than the federal constitution allows. However, law enforcement would be barred by the federal constitution from taking advantage of the extra leeway it would have under the Virginia Constitution. Therefore, it would be fundamentally unfair for the court to actually interpret the Virginia Constitution because it would favor the Accused over the prosecution.

I'll concede every point made in that argument and here's a perfect example:

Va. Const. Art 1 sec 10: That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

Without seeking any redress to case law, as I make a plain reading of that section I come up with these two possible interpretations which would be helpful to the prosecution: (1) "[O]ught not to be granted" could be easily interpreted as a strong statement for a policy preference which could allow exceptions in extraordinary cases. (2) "[E]vidence of a fact committed" and "supported by evidence" could very easily be interpreted as not requiring probable cause. In fact, as I first read this section the first thing that ran through my head was that the Virginia standard for a warrant is merely reasonable articulable suspicion. Yet, law enforcement would be clearly denied the ability to take advantage of either interpretation because such actions are banned under the federal constitution.

However, I do not agree with the argument's conclusion. I probably would if we were talking about equal parties. Yet, in almost all cases law enforcement and the prosecutor enjoy great advantages in personnel, equipment, funds, training, knowledge and experience. Standing the face of this a suspect often has only the mandated protections to prevent massive incursions from overwhelming his life and private affairs.

Art. 1 sec. 7: That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

Would it be a terrible if this section were interpreted so that it overturned the accepted norm of illegally obtained evidence coming in during trial, no matter how grievous the violation, as long as does not violate the federal constitution? It would protect citizens from law enforcement purposefully acting outside the law. Yes, there would be great gnashing of teeth and rending of garments from law enforcement and prosecutors as they swore the world and civilization as we know it is about to come to a disastrous end (case law which disfavors law enforcement apparently being a sign of the apocalypse)¹. And then the sun would come up the next day, law enforcement would adjust its techniques, and approximately the same number of people would end up getting convicted each week. Two governments would have preserved liberty by setting limits within which those forces which we must always strive to keep under the control of the citizenry shall behave.


¹ BTW - when particularly bad decisions come out of the appellate courts we in the Defense bar do the same thing; it's just that not many people listen to us. And after a while our voices get hoarse from all the yelling so it gets harder to hear us as well.