A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, and Still Growing Regulation of State Courts' Criminal Appeals


Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended the perceived requirement of de novo review far beyond the Court's specific holdings.

This Article presents an original challenge to the Supreme Court's power to require state-court de novo review, reminds readers of Professor Meltzer's analogous critique of the Court's power to require states to use the harmless-beyond-a-reasonable-doubt test, as it did in Chapman v. California, and supports the Article's challenge to the Court's recent decisions with an original attack on the Court's power to require state courts to apply new rules of federal constitutional law retroactively to criminal cases pending on direct review, as it did in Griffith v. Kentucky.

The Article concludes that for nearly four decades the Supreme Court has failed even to attempt to identify the source of its power to regulate state appellate proceedings in criminal cases in the two established ways and the one nascent way, and calls upon state courts, unless and until the Court expressly holds them bound by the requirement of de novo review, to interpret it as inapplicable to state courts.


Constitutional Law | Courts | Criminal Law | Criminal Procedure

Date of this Version

August 2004