STATE CONSTITUTIONAL CRIMINAL LAW  by Barry Latzer.
Deerfield, IL: Clark Boardman Callaghan, 1995 (+ annual cumulative supplement). 

Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University
 

STATE CONSTITUTIONAL CRIMINAL LAW, authored by Professor Barry Latzer, a political scientist and lawyer at the John Jay College of Criminal Justice in New York, is a legal treatise bound in looseleaf form and supplemented by annual updates. Unlike most books reviewed in the LAW & POLITICS BOOK REVIEW, it is a reference book.

A reference work obviously cannot be evaluated by all the criteria that apply to a scholarly book advancing a particular thesis via a given methodology. Whatever implicit theory may guide the author, a reference work must review all aspects of a subject with a measured cadence. Since it is unlikely that one would read it from cover to cover, a legal reference work must prove itself, so to speak, in each section. I am pleased to say that this extremely useful work does so.

In the introductory chapter, Professor Latzer explains that his book covers cases decided mostly since 1970 by state supreme courts, in reaction to the "narrowing of the federal constitutional rights of criminal defendants." He notes that a "significant minority" of state cases has provided greater rights to criminal defendants than granted by the U.S. Supreme Court under the U.S. Constitution but that "a preponderance" of the case law follows the federal standards.

Thus, STATE CONSTITUTIONAL CRIMINAL LAW closely tracks developments in the most litigated subfield of the momentous "independent and adequate state grounds" or MICHIGAN V. LONG area. State constitutional law, marking the growth of judicial federalism, has been the focus of substantial legal scholarship. A few law journals now offer annual symposia on state constitutionalism.

In eight chapters the book covers all major areas of the law of criminal procedure: the exclusionary rule, search and seizure, confessions, the right to counsel, confrontation of adverse witnesses, double jeopardy, and a final chapter devoted to pre-trial and trial rights. The last chapter encompasses bail, grand jury, preliminary hearing, discovery, burden of proof, entrapment, notice, compulsory process, and other trial and post-trial rights. A lengthy appendix reprints state constitutional provisions that parallel the criminal procedure provisions of the U.S. Constitution, namely the Fourth, Fifth, Sixth, and Eighth Amendments.

Each chapter of STATE CONSTITUTIONAL CRIMINAL LAW proceeds by first summarizing the federal interpretation of a constitutional provision or issue and then reviewing state decisions. For example, section 6:3, in 10 pages, reviews the law on face-to-face confrontation under the Sixth Amendment. COY V. IOWA (1988) and MARYLAND V. CRAIG (1990) are briskly but thoroughly summarized. CRAIG upheld a state statute allowing child sex abuse victims to testify out of the presence of the accused, if testimonial reliability is "otherwise assured." Prof. Latzer than summarizes that "[s]ome of the state courts, relying at least in part on state confrontation provisions, reached a similar conclusion both before and after CRAIG." This is substantiated by a three-page footnote citing rulings in 18 states; each case in the note is adequately explained in a squib. The text of section 6:3 provides more extended treatment of state decisions whose constitutions contain a "face-to-face" requirement. Indiana's Supreme Court interpreted such a provision to be consistent with the two-way closed televising of testimony, while the Supreme Courts of Illinois, Massachusetts, Pennsylvania, and, arguably, Tennessee held that their state constitutions required the alleged victim and accused to both be physically present in the courtroom. New Hampshire approved the videotaped showing at trial of the victim's pre-trial cross-examination (where the defendant was present). The 1997 annual supplement brings this section up to date with additional cases and with references to a Massachusetts statute and a Pennsylvania constitutional amendment designed to allow child sexual victims to testify out of the presence of the defendant.

Lawyers and law-school trained scholars--at least those who received their J.D.s (or Ll.B.s!) before computerized legal research became common--respond in Pavlovian ways to the shapes, sizes, and colors of law books. Differing shades of blue, red, and the ubiquitous buff draw the lawyer to familiar storehouses of statutes, cases, or regulations in which the right authority is to be found. A looseleaf binder is all business.

Consequently, STATE CONSTITUTIONAL CRIMINAL LAW is written with the needs of practicing lawyers in mind. As is de rigueur in looseleaf treatises, the work contains practice pointers suggesting to busy practitioners on both sides what approaches to take. When a lawyer consults a treatise she expects that it will be encyclopedic and cover every case in a way that conveys the main points of the case without going into excessive detail. The book fulfills these needs admirably. Every relevant U.S. Supreme Court case is dealt with and it appears that the coverage of state law is exhaustive. In every section that I've read (over half the book) the style is always lucid. No more can be expected of a treatise.

Since non-lawyer scholars may rarely consult a work such as STATE CONSTITUTIONAL CRIMINAL LAW a few general comments are in order. Political scientists who use UNITED STATES LAW WEEK, a looseleaf service, may conflate a looseleaf treatise with a service. Beyond similar bindings and their usefulness to practicing lawyers, services are different in kind from treatises. The former may require the editorship of specialists but a successful treatise must be written by a scholar or a practitioner-scholar who displays a vast scope of knowledge and intellectual rigor. Prof. Latzer comes to this volume as a recognized scholar in this area who has authored a book (Latzer 1991) and numerous articles on the subject.

The Langdellian approach is of marginal value to sociolegal research on the practice of law and the work of courts. Legal doctrine, however, is an indispensable foundation for legal and constitutional interpretation. Some postmodern analyses of law are so far removed from legal doctrine that they fail to see that coherent bodies of law contribute significantly to social stability (see Zalman 1997). STATE CONSTITUTIONAL CRIMINAL LAW is an encyclopedic treatise that draws coherent patterns out of the large storehouse of state case law.

As a criminal procedure scholar, I consider it a good day's work to know what the U.S. Supreme Court says in this field. By my estimate Barry Latzer has carefully read and analyzed over 3,500 appellate cases from the fifty states and the U.S. Supreme Court for his text and 1997 supplement and presented them cogently. Without this basic work, higher forms of scholarship might not be possible.

One may ask is how a treatise can be of use to more interpretive scholarship. Prof. Latzer has, in a sense, answered this question in a recent article (Latzer 1996) where he has drawn on his treatise to establish the extent to which state courts have covered the ground of constitutional criminal procedure. He builds on this observation to suggest that the time has come for the Supreme Court to "disincorporate" the Fourth Amendment exclusionary rule of MAPP v. OHIO (1966) and the MIRANDA rule. I strongly disagree with this thesis. Nevertheless, his ability to draw on the evidence of his treatise to suggest that state supreme courts can be trusted to enforce rights formidably supports his position.

STATE CONSTITUTIONAL CRIMINAL LAW provides valuable information to constitutional scholars. For example, the 1997 update on section 6:3, reviewed above, notifies the alert scholar that popular politics in Massachusetts and Tennessee overrode the unpopular but arguably the constitutionally sound position that face-to-face confrontation should always be allowed. The text notes that some state constitutions provide additional textual protections ("communications", "privacy", "face-to-face confrontation") while other states omit rights guaranteed in the Bill of Rights (Virginia's constitution has no right to counsel, 5:2). Section 1:4 reviews the intriguing and relatively unsettled question of which law applies when a federal law enforcement officer contributes to a state prosecution. It was exhilarating to discover that at least one state, Oregon, takes an expansive view of the exclusionary rule based on a theory of vindicating the defendant's rights (2:9). It is quite instructive to learn that Florida (2:14) adopted a blanket policy of adhering to federal standards as determined by the Supreme Court. The criminal law specialist will find rich veins of information in virtually every section.

STATE CONSTITUTIONAL CRIMINAL LAW is a reference work that, without a doubt, belongs in the libraries of criminal law practitioners and in all appellate court libraries. Law school and university professors who teach and do research in criminal procedure should seriously consider purchasing this reference work. At the very least, such scholars should request that their school or departmental libraries carry the volume. A large number of law student-authored casenotes in law journals focus on criminal procedure. These authors should be required to consult STATE CONSTITUTIONAL CRIMINAL LAW. This reference book may be of special value to law teachers in criminal justice departments at colleges and universities that have no law school libraries. Their students will well served by having a reference work that provides authoritative and timely references to state rules. Finally, although most political science constitutional law teachers devote little attention to criminal procedure, they could benefit by exploring the nature and extent of state appellate court activity in an area usually thought to be defined primarily by the United States Supreme Court. 

Latzer, Barry. 1991. STATE CONSTITUTIONS AND CRIMINAL JUSTICE. New York: Greenwood Press (Series: Contributions in Legal Studies).

Latzer, Barry. 1996. "Toward Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation," JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 87(1):63-129.

MAPP V. OHIO, 367 U.S. 643 (1961).

MARYLAND V. CRAIG, 497 U.S. 836 (1990).

MICHIGAN V. LONG, 463 U.S. 1042 (1983).

MIRANDA V. ARIZONA, 384 U.S. 436 (1966).

Zalman, Marvin. Forthcoming 1997. "Juricide." In David Schultz, ed., LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. Peter Lang.