Reflections on the Role of State Courts in the Vindication of State Constitutional Rights: A Plea for State Appellate Courts to Consider Unraised Issues of State Constitutional Law in Criminal Cases

This Essay examines the persistent failures of counsel in criminal cases to raise state constitutional claims 1 and the reluctance of state judges to excuse waivers of state constitutional rights. Let me express my appreciation to Professor Stephen McAllister and the members of the Kansas Law Review for inviting me and my wife, Chief Justice Rebecca White Berch of the Arizona Supreme Court, to participate at the Kansas Law Review Symposium, State Constitutional Law Steps Out of the Shadows. This Essay grew out of that presentation. I gratefully acknowledge the assistance of Elizabeth DiFelice, Assistant Director of the Ross Blakley library of the Sandra Day O'Connor College of Law. I also extend appreciation to the editors and staff of the Kansas Law Review for their dedication to the Symposium and to this Essay. As always, I am grateful to my wife, Chief Justice Rebecca White Berch of the Arizona Supreme Court, for her comments and suggestions regarding this manuscript. None of the views expressed in the piece should be attributed to her or to any other member of the court. 1. As Robert Williams stated, " Despite the development of the New Judicial Federalism nearly two generations ago, lawyers still fail to properly argue the state constitutional grounds where available. 2. Many state courts, with little or no discussion, strictly apply the waiver rule to the failure to raise state constitutional claims in the lower courts. (finding that question of whether minimum sentence of twenty-five years for attempted rape of a fourteen-year-old violates state constitution's cruel and unusual punishment provision was not properly before the appellate tribunal because it was not raised in trial court); State v. Martin, 773 N.W.2d 89, 100 n.6 (Minn. 2009) (rejecting argument that the Minnesota Constitution requires higher levels of scrutiny for Batson challenges than the U.S. Constitution because it was not raised at the trial level); State v. Sletten, 664 N.W.2d 870, 875 (Minn. App. 2003) (declining to reach " automatic standing " state constitutional issue not raised in trial court); State v. Munoz, 187 P.3d