8.    The State and Federal Constitutional Element

   In state court proceedings all issues of error should be raised to a federal constitutional level, for issues raised to a federal constitutional level can later be litigated in the federal courts either by petition for writ of certiorari after direct appeal or federal habeas corpus.

   There are two essential reasons why the state constitution as well as the federal constitution should be interpreted and invoked in the process of determining an accused's rights.

   The state constitution should always be studied carefully because it will frequently contain guarantees of a person's rights and restrictions upon the state that do not exist in the federal constitution, or even in other state constitutions.

   The state constitution should also be consulted in conjunction with the federal constitution because there are instances in which constitutional provisions as interpreted by the state might actually afford an accused person more rights than do the identical words as interpreted by the United States Supreme Court. In Texas v. White, 423 U.S. 65 (1975), the Supreme Court reversed a decision of the Texas Court of Criminal Appeals concerning a warrantless station-house search of a vehicle [White v. State (Tex. Cr. App. 1975), 521 S.W.2d 244] and remanded the case to that court over the dissenting admonitions of Justices Marshall and Brennan that:  "[i]t should be clear to the court below that nothing this court does today precludes it from reaching the result it did under applicable state law."  Texas v. White, at 72. However, on remand, the Texas Court of Criminal Appeals refused to reach the state law question because trial counsel had failed to raise the state constitutional ground at the trial level.

   Our legal education indoctrinates us to frame our constitutional arguments in terms of federal constitutional rights. When a state court is deciding an issue on state constitutional grounds, the basis of the decision must clearly show that it was decided on state grounds or federal courts may assume it was decided on federal constitutional grounds. Michigan  v. Long, 463 U.S. 1032 (1983).

Examples of the State and Federal Constitutional Element

Opportunity for representatives of the Accused to inspect physical evidence in this case is necessary to preserve the Accused's right to a fair trial, to effective assistance of counsel, to equal protection and due process of law as guaranteed by Art. 3, Secs. 26, 24 and 14 respectively of the Mississippi Constitution and the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.

  Motions should even attack and challenge areas of the law that seem to be absolutely written in stone against your client, for example..


(b) The Florida death penalty statute on its face, as applied in the State of Florida and as applied in Duval County, violates the protection against cruel and unusual punishment, the right to a fair trial by a jury representing a fair cross section of the community, the protection against double jeopardy, due process and equal protection under the law as guaranteed by Art. I, Secs. 9, 16 and 17 of the Florida Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.

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