Appellate Practice
Summer 2021, Vol. 40 No. 3
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9
June 03, 2021
Standards of Appellate Review of Mixed
Questions of Federal Constitutional Law and
Fact: Follow the SCOTUS
Practitioners can rely on a considerable body of federal and
state law to call on state appellate courts to apply a de novo
standard of appellate review in cases presenting mixed
issues of federal constitutional law and fact.
By Katayoun A. Donnelly
The Supreme Court of the United States (SCOTUS) ensures the uniformity and supremacy
of federal law. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326, 135 S. Ct.
remedies for federal constitutional violations, fall squarely within this purview. States have
recognized this. Practitioners therefore can rely on a considerable body of federal and state
law to call on state appellate courts to apply a de novo standard of appellate review in
cases presenting mixed issues of federal constitutional law and fact, keeping in mind that a
state may provide more protections than the federal constitution but may not provide
Supreme Court: De Novo Standard
For decades, the U.S. Supreme Court has applied the de novo standard to review mixed
questions of federal constitutional law and fact.
In 1967, the Court, in Chapman v. California, required state appellate courts to replace their
own less rigorous standards of harmlessness of federal constitutional error with the
“harmless beyond a reasonable doubt” appellate standard of review. 386 U.S. 18 (1967).
In 1984, in Bose Corp. v. Consumers Union of United States, Inc., the Court made it
abundantly clear that it requires de novo review of decisions of mixed questions of federal
constitutional law and fact and held “that judges—and particularly Members of this
Court—must exercise” an independent appellate “review in order to preserve the precious
liberties established and ordained by the Constitution.” 466 U.S. 485, 510–11, 104 S. Ct.
1949, 1965, 80 L. Ed. 2d 502 (1984) (“The requirement of independent appellate review
