On Reach and Grasp in Criminal Procedure: Crawford in California

Abstract:     
This essay, forthcoming in a symposium on The Future of the Adversary System in the North Carolina Journal of International Law and Commercial Regulation, makes four related points. First, it explains the United States’ peculiar arrangement for adjudicating human rights claims in the federal criminal system for an international audience. Second, it documents the Supreme Court’s modern retreat from 1960s era interventions into state criminal procedure. Third, it exposes the irony of this modern retreat, meant to reduce the practical significance of the Court’s prior jurisprudence on rights in the criminal process, given the current Court’s recent pro-defense stance on one important issue: the new test for Sixth Amendment confrontation clause claims announced in Crawford v. Washington.

A systematic survey of 100 California appellate decisions applying the Supreme Court’s decision in Crawford v. Washington suggests that the federal courts, including the Supreme Court, have distinctly limited powers to directly control the state courts responsible for processing most criminal cases. The same evidence also suggests that the state courts, although reluctant to reverse convictions for Crawford errors, nonetheless apply the Supreme Court’s new doctrine with at least grudging good faith. So, fourth and finally, the essay addresses the interesting question of whether there is anything to be said from a normative point of view on behalf of affirming unenforceable rights claims in the criminal process. The Court has announced a robust confrontation right in state cases, but it has little practical power to enforce this prescription due to self-imposed limits on its remedial options. Hence my title — the Court’s “reach” exceeds its “grasp” in the criminal procedure context.

Number of Pages in PDF File: 62

Keywords: confrontation clause, Crawford, habeas, federalism

JEL Classification: K14, K41

Accepted Paper Series