NCJ Number
26438
Journal
American Criminal Law Review Volume: 12 Issue: 2 Dated: (FALL 1974) Pages: 323-356
Date Published
1974
Length
34 pages
Annotation
THIS ARTICLE, TAKEN FROM THE SYMPOSIUM ISSUE ON THE AMERICAN BAR ASSOCIATION (ABA) STANDARDS FOR CRIMINAL JUSTICE, FOCUSES ON THE JUDICIAL BRANCH AND EXAMINES THE EXTENT TO WHICH THE STANDARDS CAN BE IMPLEMENTED BY COURT RULE.
Abstract
ALTHOUGH COURTS HAVE THE POWER TO MAKE RULES GOVERNING PRACTICE AND PROCEDURE, THE THEORETICAL AND ACTUAL BASES FOR THE EXERCISE OF SUCH POWER VARY FROM STATE TO STATE. IN EXERCISING RULEMAKING AUTHORITY, A COURT MAY RELY EITHER ON ITS OWN INHERENT POWERS OR ON AN EXPRESS CONSTITUTIONAL OR STATUTORY GRANT OF POWER. SUCH BASES ARE NOT MUTUALLY EXCLUSIVE; ALL MAY BE PRESENT AT THE SAME TIME. EVEN THOUGH COURTS IN MOST STATES HAVE THE POWER TO PROMULGATE RULES OF PROCEDURE, THE QUESTION OF THE SCOPE OF THAT POWER REMAINS. COURTS CANNOT MODIFY SUBSTANTIVE LAWS, BUT THERE IS NO DISTINCT BOUNDARY WHICH DIVIDES SUBSTANCE FROM PROCEDURE. MANY OF THE STANDARDS DEAL WITH MATTERS OF SUBSTANTIVE LAW; THESE ARE CLEARLY OUTSIDE THE SCOPE OF THE COURT'S POWERS. THEREFORE, IT MAY BE USEFUL TO EXAMINE EACH OF THE STANDARDS TO IDENTIFY THOSE AREAS WHICH WOULD BE SUSCEPTIBLE TO IMPLEMENTATION BY THE USE OF JUDICIAL RULEMAKING. STANDARDS WHICH COULD GENERALLY BE AMENABLE TO IMPLEMENTATION BY COURT RULE INCLUDE THOSE FOCUSING ON PRETRIAL RELEASE, PRETRIAL DISCOVERY, JOINDER AND SEVERANCE, SPEEDY TRIAL, GUILTY PLEAS, TRIAL BY JURY, AND MANY OF THE STANDARDS RELATING TO THE FAIR TRIAL AND FREE PRESS ISSUE. ALTHOUGH CERTAIN PARTS OF THE STANDARDS WILL REQUIRE ACTION BY STATE LEGISLATURES OR BY ADMINISTRATIVE BODIES, MOST OF THE MAJOR RECOMMENDATIONS ARE AMENABLE TO JUDICIAL RULEMAKING. IN MOST JURISDICTIONS, THE QUICKEST MEANS OF IMPLEMENTING THE STANDARDS WILL BE THROUGH FULL USE OF THE COURTS' RULEMAKING POWER. THE ARTICLE INCLUDES 168 FOOTNOTES.