THE INDIANA STATE CONSTITUTION by William P. McLauchlan. Westport, Connecticut: Greenwood Press, 1996. 208 pp. Cloth $75.00.

Reviewed by Barry Latzer, Department of Government, John Jay College of Criminal Justice, City University of New York.
 

William P. McLauchlan has put together the Indiana entry in the Greenwood reference series on state constitutions. These slim volumes, edited by G. Alan Tarr, provide a useful set of reference books on the state constitutions, an area of growing importance in American law and politics.

As most readers are undoubtedly aware, state constitutional law has gotten a great deal of attention since the 1970s, when the U.S. Supreme Court turned "conservative," i.e., stopped aggressively expanding rights. Prodded by Justice William Brennan, the defense and civil liberties bar, and other interest groups, state courts of last resort discovered that state constitutions also had bills of rights, that these bills of rights could be construed more expansively than the federal Bill of Rights, and that the "big" Supreme Court could do nothing about such rights-broadening. This development has, naturally enough, spawned some interesting scholarship, and Professor McLauchlan’s effort joins a sizable and growing list.

This isn’t to say that McLauchlan’s book is about the new judicial federalism, so-called. Rather, it is a by-product of it. That is, this book, and the entire series of which it is a part, is a reflection of the renewed interest in state constitutions generally. The Greenwood series is a set of state-by-state reference books on the constitutions of each state. These books are not designed to be read cover-to-cover, but rather to be used, as need arises, to obtain information about particular sections of particular state constitutions, or about the historical development of each state’s fundamental law (each volume provides a brief history of the state constitution being analyzed).

McLauchlan’s book, THE INDIANA STATE CONSTITUTION, follows the pattern for the series. Its 208 pages are crammed with information on the background to and development of the Hoosier constitution (Part I of the book), and on the current meaning of each of its provisions, presented section-by-section (Part II). The work is capped by a convenient alphabetical table of cases and chronological list of Attorney General Opinions, as well as an index.

McLauchlan has done an impressive amount of research, examining numerous historical documents and hundreds of Indiana court decisions. He ably synthesizes and clearly presents this material in a readable manner. His presentation seems balanced and hidden-agenda-free. The historical discussion, though dry, seemed, as best as I could tell, fair and accurate.

That history reveals that Indiana had two charters, an 1816 model, largely copied from Ohio and Kentucky, and an 1851 revision, influenced by Illinois and Wisconsin. The 1851 version, amended, still serves today. According to McLauchlan, one of the biggest problems for Indiana constitutionalism has been determining the proper criterion for amending the central document. It seems that the amending provision, Article XVI, provided that a "majority of said electors"--meaning voters--were needed to ratify proposed amendments. (McLauchlan, p. 16). Unfortunately, it was not clear whether this meant a majority of those voting for or against the proposal, a majority of those voting in the election in which the proposed amendment was up for approval, or a majority of Hoosiers eligible to vote. The Indiana Supreme Court did not settle on an interpretation until 1935, when, in IN RE TODD, 193 N.E. 865 (Ind. 1935), it picked option #1--a majority of those voting on the proposed amendment. McLauchlan tells us that although TODD liberated the state constitutional amending process, that process did not pick up steam until the 1970s when 35 constitutional modifications were approved. McLauchlan conveniently charts, on page 20, the number of amendments approved decade by decade. The overall impression one gets from McLauchlan’s Indiana constitutional history is of considerable stability, which contrasts with the general assessment of state constitutionalism as being fraught with "amendomania." (Those interested in state constitutional amendments should examine the work of Janice May, e.g., "State Constitutions and Constitutional Revision, 1992-93," THE BOOK OF THE STATES (1994), p. 5.)

I now turn to Part II of McLauchlan’s book, the bulk of the work, which is an analysis of each section of the Indiana Constitution and the caselaw interpreting it. To assess McLauchlan’s effort I closely examined his treatment of some of the Indiana provisions pertaining to criminal procedure, my area of specialty. I am sorry to report some serious sins of omission and commission, which I enumerate below.

Article I, Section 11

This is the search and seizure provision of the Indiana Constitution, which textually tracks the Fourth Amendment. In his discussion of the rule that warrantless searches are valid with the consent of the subject (p. 42), McLauchlan was apparently unaware that the Indiana Constitution provides a protection unique in the Nation. Under the rule of PIRTLE v. STATE, 323 N.E.2d 634 (Ind. 1975), consent by a person under custodial arrest is invalid in the absence of the advice of counsel or proof by the prosecution of the explicit waiver of counsel. Although this protection is founded upon the Indiana right to counsel provision, Article I, Section 13, not the search and seizure provision, it has obvious implications for consent search law. Not only is any reference to the PIRTLE doctrine absent from McLauchlan’s discussion of Section 11, it does not appear in his analysis of Section 13 either.

Article I, Section 13

This provision guarantees various criminal procedure rights, including the right to public trial by jury, to notice of charges, to confront adverse witnesses, to present favorable evidence, and "to be heard by himself and counsel." As regards the Indiana right to counsel, although McLauchlan is correct to say that the right "developed much like that formed from the federal constitutional requirement" (p. 45), he missed a noteworthy difference. Whereas the Sixth Amendment right to appointed counsel for indigent defendants is contingent on an actual sentence to a period of incarceration (SCOTT v. ILLINOIS, 440 U.S. 367 (1979)), Article 1, Section 13 of the Indiana Constitution establishes a right to counsel for all persons charged with a criminal misdemeanor, regardless of whether the charge results in imprisonment. MORGAN v. STATE, 417 N.E.2d 1154 (Ind. App. 1981).

Section 13 also guarantees the right "to meet the witnesses face to face," which parallels the Sixth Amendment right "to be confronted with the witnesses against him." Again, McLauchlan accurately states that the Indiana Supreme Court held that the state and federal rights were "not coextensive," but he does not say how the rights are different. As BRADY v. STATE, 575 N.E.2d 981 (Ind. 1991), which is not cited by McLauchlan, makes clear, the Indiana right is notably broader. It requires that a witness be able to see the accused and vice versa, although the observation need only be by two-way closed circuit television rather than by personal encounter. By contrast, in MARYLAND v. CRAIG, 497 U.S. 836 (1990), the U.S. Supreme Court, construing the Sixth Amendment, let stand a law permitting certain child abuse victims to testify without being able to view the accused or anyone in the courtroom. Under BRADY, such an arrangement would not be permitted in Indiana.

Article I, Section 14

Article 14 prohibits double jeopardy and compulsory self-incrimination. McLauchlan says that MIRANDA rights were "added to this provision of the state constitution by the court decision in Haskell [sic] v. State (1970)" (p. 48, case name italicized in original). This apparent reference to HASKETT v. STATE, 263 N.E.2d 529 (Ind. 1970), surely misreads that case. HASKETT held that there is a state and federal self-incrimination right to refuse to answer questions posed by physicians as part of proceedings to establish that defendant was a "criminal sexual psychopath." Although the HASKETT court said that Section 14 "has the same scope and effect" as the Fifth Amendment Self-Incrimination Clause, there was no discussion of MIRANDA, and the case did not involve custodial interrogation by police, which is what MIRANDA is all about. How McLauchlan could conclude that this case imported the MIRANDA doctrine into the Indiana Constitution escapes me.

Article 14 also prohibits double jeopardy, and the Indiana right has once again been construed more protectively than its federal counterpart. Nevertheless, there is no mention of this in McLauchlan’s work. The issue is whether more than one criminal charge may be enhanced by the same misconduct where the crimes and enhancement misconduct occurred in the same episode. Although such enhancement is probably permissible under the U.S. Constitution (see UNITED STATES v. DIXON, 113 S. Ct. 2863 (1993)), it is prohibited under the Indiana Constitution. The leading cases are FLOWERS v. STATE, 481 N.E.2d 100 (Ind. 1985) and BEVILL v. STATE, 472 N.E.2d 1247 (Ind. 1985). BEVILL illustrates. There, the court did not permit evidence of stabbing injuries, which were used to support an attempted murder conviction, to also be used to elevate burglary charges, where the burglary, the attempted murder and the stabbing all occurred during the same event. Perhaps the FLOWERS-BEVILL rule is too "technical," complex or insignificant for full discussion in a book of this nature, but if so, there should nevertheless be some acknowledgment that this part of the Indiana Constitution is interpreted differently from its federal double jeopardy analog.

Conclusion

Whether the preceeding omissions and misinterpretations are indicative of McLauchlan’s work throughout Part II of THE INDIANA STATE CONSTITUTION, I cannot say. But it certainly makes one suspicious. How much the reader of this review downgrades the author’s efforts will no doubt reflect his assessment of the seriousness of the type of errors I have catalogued. I consider them pretty serious, though not fatal to a nonetheless valuable reference.