NCJ Number
51928
Journal
Cornell Law Review Volume: 63 Issue: 4 Dated: (APRIL 1978) Pages: 642-665
Date Published
1978
Length
24 pages
Annotation
THERE IS A DISTINCT LACK OF THEORETICAL AND PRACTICAL JUSTIFICATION FOR THE EXERCISE OF INTERMEDIATE SUPERVISORY POWER BY THE UNITED STATES CIRCUIT COURTS OF APPEALS.
Abstract
THE SUPERVISORY POWER OF THE CIRCUIT COURTS LACKS ANY BASIS IN THE UNITED STATES CONSTITUTION OR IN THE FEDERAL STATUTES. THE EXERCISE OF THIS PRESUMED POWER HAS TOUCHED ALL ASPECTS OF THE JUDICIAL PROCESS, INCLUDING GRAND JURY PROCEDURE AND TRIAL ACTIVITIES, WITH LITTLE DISPLAY OF JUDICIAL SENSITIVITY TO THE SEPARATION OF POWER BETWEEN THE JUDICIARY AND THE COORDINATE BRANCHES OF GOVERNMENT. FEDERAL COURTS OF APPEAL HAVE SHOWN A WILLINGNESS TO CONTROL LAW ENFORCEMENT ACTIVITIES, BUT THEY HAVE EXCEEDED THE SUPREME COURT'S ORIGINAL JUSTIFICATION FOR SUPERVISION BY DOING MORE THAN IMPLEMENTING CONGRESSIONAL POLICY. THE LONGSTANDING USE OF SUPERVISORY POWER BY THE COURTS WOULD SEEM TO INSURE ITS SURVIVAL AGAINST ANY MAJOR CHALLENGE, BUT EFFECTIVE CONTROL BY THE SUPREME COURT AND THE CONGRESS IS REQUIRED IN ORDER TO PREVENT ABUSES. INTERMEDIATE SUPERVISORY POWER HAS BECOME A TOOL WITH WHICH TO CONTROL TRIAL COURT DISCRETION. SINCE THE CASE OF ALLEN V. UNITED STATES (1896) THE CIRCUIT COURTS HAVE DISAGREED OVER THE EXTENT TO WHICH A TRIAL JUDGE MAY PRESSURE A JUROR TO ACCEPT THE MAJORITY VIEW OF A HUNG JURY. BY ESTABLISHING THEIR OWN STANDARDS, THE CIRCUIT COURTS HAVE IGNORED THE CONSTITUTIONALLY BASED PROCEDURES ADOPTED IN ALLEN. SIMILARLY, THE INFERIOR COURTS HAVE DEVELOPED THEIR OWN RULES CONCERNING THE INSANITY PLEA, AND RESTRUCTURED IN FORMA PAUPERIS PROCEEDINGS. ALTHOUGH THE CIRCUIT COURTS EXHIBIT SOME DISCRETION IN RESERVING AUTHORITY OVER GRAND JURIES TO THE EXECUTIVE, THE COURTS HAVE ENTERED THE AREA OF ENFORCEMENT, WHERE THEIR COMPETENCE IS MORE TENUOUS. ALTHOUGH THE SUPREME COURT HAD FOUND THEORETICAL JUSTIFICATION FOR ITS OWN SUPERVISION, THIS POWER WAS CLEARLY SELF-LIMITED. THE FULL TEST OF MCNABB V. UNITED STATES INDICATES THAT SUPERVISION IS AN EXTRAORDINARY REMEDY, AND THAT IT MUST FOLLOW CONGRESSIONAL INTENT. THE INTERMEDIATE SUPERVISORY POWER OF THE CIRCUIT COURTS WAS FABRICATED BY THE INFERIOR COURTS WITHOUT SERIOUS INVESTIGATION OF THE FOUNDATIONS OF THE JUDICIARY. (TWK)