A number of scholars assert that state and federal courts are in a new relationship, labeled the "new judicial federalism," that began in the 1970s when the Burger Court started to retreat from and limit the Warren Court's expansive interpretations of federal civil liberties protections. Under this relationship, state courts have developed an independent body of state constitutional law in criminal procedure, oftentimes engaging in "state constitutional policymaking" by interpreting provisions of their state bills of rights more broadly than the U.S. Supreme Court's interpretation of analogous provisions of the U.S. Constitution.In this article, I undertake a longitudinal investigation of state constitutional policymaking in criminal procedure during the first 25 years of the new judicial federalism. Relying on 528 state high court decisions from 25 states in which the courts interpret criminal procedure guarantees in their state constitutions, I investigate trends in this behavior across states and within individual states. I find that rates at which state courts have extended criminal procedure rights beyond federal levels have varied significantly over these years, both overall and in individual jurisdictions. Contrary to speculation in the literature, levels of policymaking have increased slightly in more modem years, and more states are actively extending rights compared to earlier years. I discuss possible explanations for these findings and their implication for the future of state constitutional policymaking in criminal procedure.
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