| Crist v. Bretz
(No. 76-1200)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Blackmun ] | Dissent
[ Burger ] | Dissent
[ Powell ] |
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Crist v. Bretz
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR CHIEF JUSTICE BURGER, dissenting.
As a "rulemaking" matter, the result reached by the Court is a reasonable one; it is the Court's decision to constitutionalize the rule that jeopardy attaches at the point when the jury is sworn -- so as to bind the States -- that I reject. This is but another example of how constitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice. There is, of course, no reason why the state and federal rules must be the same. In the period between the swearing of the jury and the swearing of the first witness, the concerns underlying the constitutional guarantee against double jeopardy are simply not threatened in any meaningful sense, even on the least sanguine of assumptions about prosecutorial behavior. We should be cautious about constitutionalizing every procedural device found useful in federal courts, thereby foreclosing the States from experimentation with different approaches which are equally compatible with constitutional principles. All things "good" or "desirable" are not mandated by the Constitution. States should remain free to have procedures attuned to the special problems of the criminal justice system at the state and local levels. Principles of federalism should not so readily be compromised [p40] for the sake of a uniformity finding sustenance perhaps in considerations of convenience, but certainly not in the Constitution. Countless times in the past 50 years, this Court has extolled the virtues of allowing the States to serve as "laboratories" to experiment with procedures which differ from those followed in the federal courts. Yet we continue to press the States into a procrustean federal mold. The Court's holding will produce no great mischief, but it continues, I repeat, the business of trivializing the Constitution on matters better left to the States.
Accordingly, I join MR. JUSTICE POWELL's dissent.