The Need for Comity: A Proposal for FederalCourt Review of Suppression Issues in theDual Sovereignty Context After theAntiterrorism and EffectiveDeath Penalty Act of 1996

Table of ContentsI. Introduction 186II. The Dual Sovereignty Doctrine 190A. The Historical Development of the Doctrine 190B. Modern Development of the Doctrine 192C. Rationale and Criticism of the Doctrine 194III. The Dual Sovereignty Doctrine and Suppression Rulings ..... 198A. State Versus Federal Exclusionary Devices 198B. The Dual Sovereignty Doctrine as Applied to Suppression Rulings 200C. Summary 204IV. Analogizing Federal Habeas Proceedings to Federal Dual Sovereignty Proceedings 204A. The Writ of Habeas Corpus 2051. The General Function and Origin of the Writ ....... 2052. The Pleading and Practice of the Writ 207B. The Nature of Collateral Proceedings 212C. Summary 213V. The Antiterrorism and Effective Death Penalty Act of 1996 214A. Background 214B. Federal Court Deference to State Courts 2171. 28 U.S.C. [sec] 2254 2172. (Terry) Williams v. Taylor 218a. Mixed Questions of Law and Fact 220b. Questions of Law 220c. Questions of Fact 2223. Legislative History of Deference Provisions andPrior Supreme Court Jurisprudence 223C. Summary 228VI. A Proposal for Federal Court Review of Suppression Issues in the Dual Sovereignty Context 230A. The Rule of Comity 230B. The Proposal in Practice 234C. Potential Criticisms of the Proposal 238D. Summary 241VII. Conclusion 242I. IntroductionConsider a federal prosecution that occurs after a state prosecution. The federal prosecution concerns the very same defendant, conduct, and evidence as did the state prosecution. In the state prosecution, the state court suppressed evidence on federal constitutional grounds; subsequently, a jury acquitted the defendant. In the federal prosecution, the federal court refuses to give collateral estoppel effect to the previous state court suppression ruling. In fact, the federal court does not even consider why the state court suppressed the evidence on federal constitutional grounds; instead, it treats the state court's suppression ruling as if it were a nullity.This scenario raises many questions. First, how could a federal prosecution occur after a state prosecution in this situation? Isn't this a violation of the Double Jeopardy Clause? Second, why doesn't the federal court even consider why the state court suppressed such evidence? Shouldn't the federal court give some sort of deference to the findings of the state court under principles of comity? Unfortunately, for many defendants the answer to each of these questions is no. The subsequent federal prosecution does not violate the Double Jeopardy Clause because the prohibition on double jeopardy is not enforceable when two distinct sovereigns, such as the state and federal governments are involved.1 Similarly, the federal court owes no deference to the state court suppression ruling because the federal government was not a party to the prior prosecution, and therefore the federal government is not bound by the state court's actions.2But what if federal courts gave substantial deference to state courts in other collateral proceedings, such as those that occur when a federal court considers a state prisoner's petition for a writ of habeas corpus? …