How do you spell ‘G-U-I-D-A-N-C-E’?

When I was in elementary school and did not know how to spell a word, my parents would tell me to look it up in the dictionary. This always perplexed me: How can I look up a word if I don't know how to spell it? It took a bit of trial and error, but I usually figured it out.

Appellate courts often engage in a practice that, at first glance, seems equally perplexing. The California Supreme Court's recent decision in People v. Daniels, 3 Cal. 5th 961 (2017) is a case in point.

In Daniels, the court invalidated a death sentence after finding a defendant's waiver of his right to a jury trial invalid. The plurality reaffirmed the duty "of the [trial] courts to adequately advise defendants before accepting their waivers of fundamental rights," but "declined to mandate any specific admonitions describing aspects of the jury trial right." Id. at 992-93. This raises the question: If trial judges have a duty to advise criminal defendants about the jury trial right they are giving up, why not tell those judges what advisements to give?

Daniels is not alone. In Iowa v. Tovar, 541 U.S. 77, 88 (2004), for example, the U.S. Supreme Court refused to "prescribe[] any formula or script to be read to a defendant who states that he elects to proceed without counsel." More recently, the court in Bank of America Corp. v. City of Miami, 137 S. Ct. 1296 (2017), declared proximate causation to be the linchpin of standing under the Fair Housing Act but declined to "draw the precise boundaries" of that concept.

Daniels, Tovar and the like hit upon a more fundamental question: Why are appellate courts sometimes reluctant to tell trial courts what is expected of them?

The short answer is: That's not the way the common law works.

In areas undefined by statute, such as in the interpretation of constitutional rights, courts follow the "common law approach" of deciding one case at a time. Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 899 (2007); Edwards v. California, 314 U.S. 160, 183 (1941) (Jackson, J., concurring). A case affirming what the trial court did -- at least if it is published -- becomes a "safe harbor" for future cases involving the same fact pattern, and a case reversing what the trial court did becomes a shipwreck to be avoided for future cases involving that same fact pattern. New cases with facts that fall in between the safe harbors and shipwrecks are navigating through uncharted waters. An appellate court may eventually decide whether such a case will become another safe harbor or another shipwreck. But that typically cannot occur until the trial court proceedings are done. And reversals may require the trial court to start all over again with new proceedings and perhaps even a second (or third) trial. The price tag of this approach, in terms of judicial economy, is high.

For a vivid illustration of this high price, we need look no further than Crawford v. Washington, 541 U.S. 36 (2004). Crawford redefined the reach of the Sixth Amendment's confrontation clause, holding that "testimonial statements of witnesses" may be admitted in a criminal trial only if (1) the witness is present at trial and subject to cross examination, or (2) the witness is unavailable and the defendant "has had a prior opportunity to cross-examine" the witness. Id. at 59. The threshold trigger under Crawford is, accordingly, whether a statement is "testimonial." But the Crawford majority "refus[ed] to articulate a comprehensive definition" of "testimonial," electing instead to "leave [it] for another day." Id. at 68 & n.10. The dissenters pointed out that this definitional gap would leave "thousands of federal prosecutors and ... tens of thousands of state prosecutors" without "answers as to what ... is covered by the new rule." Id. at 75 (Rehnquist, J., dissenting). Thirteen years later, the court remains fractured over what constitutes a "testimonial" statement.

To be sure, as the U.S. Supreme Court has granted cert and reviewed one Crawford case after another, those decisions have become safe harbors (or shipwrecks) into which future cases can try to steer (or avoid). So the common law approach gives greater guidance to lower courts over time, but only as the number of cases interpreting a rule grows.

The same accretion of guidance has emerged for other threshold standards that left the trial courts with very little guidance when first announced. The line separating constitutionally protected pornography from constitutionally unprotected obscenity was, at the beginning, famously elusive. Justice Potter Stewart said it best when he wrote, in his concurrence in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), that, "I know [obscenity] when I see it." However, over time, the court began to articulate a more definite standard and to apply it in more and more cases. E.g., Miller v. California, 413 U.S. 15, 23-24 (1973). The same is true for what constitutes "cruel and unusual punishment" under the Eighth Amendment. E.g., Ewing v. California, 538 U.S. 11, 20 (2003) (applying "gross[] disproportion[ality]" standard); Rummel v. Estelle, 445 U.S. 263, 271 (1980).

But this begs the further question: Why won't appellate courts hasten this process by giving trial courts greater guidance up front, rather than requiring them to navigate between -- and extrapolate from -- the existing safe harbors and shipwrecks?

So far, the courts have offered two reasons.

First, appellate courts are leery about issuing advisory opinions. The flip side of the common law one-case-at-a-time approach is that courts are not to issue opinions that go beyond the case before them. These so-called advisory opinions are beyond the jurisdiction of the federal courts that are limited by Article III to deciding only the Cases and Controversies before them, Lawyer v. Department of Justice, 521 U.S. 567, 579-80 (1997), and strongly disfavored in the California courts, Vandermost v. Bowen, 53 Cal. 4th 421, 452-53 (2012). If an opinion purports to spell out what would happen in future cases, it runs the risk of being an advisory opinion, at least if it purports to issue definitive guidance.

Second, appellate courts are leery about tying the hands of trial judges by prescribing "magic words" that must, in every case, be said or "rigid rubric[s]" that must, in every case, be followed. Daniels, at 992; People v. Lawley, 27 Cal. 4th 102, 140 (2002). No two cases are exactly alike, the logic goes, so trial courts need to have some "play in the joints" to adapt to the changing circumstances before them. Scripts that must be followed in every case undermine this flexibility. Tovar, at 88.

However, courts have nevertheless set these considerations to the side in certain cases. In Daniels, for instance, the plurality offered "general guidance" on what trial courts should say when advising defendants when they waive their right to a jury trial. Id. at 999-1000; see also People v. Sivongxxay, 3 Cal. 5th 151, 170 (2017) (doing the same). But, to avoid the concerns outlined above, the California courts in so doing made clear that the "guidance ... is advisory." Savinogxxay, at 170.

Why are courts sometimes willing to depart from the general principles governing common law adjudication in this situation? What makes the situation in Daniels and Savinogxxay different?

At first glance, three potential reasons appear. First, Daniels and Savinogxxay involve a type of waiver -- like the waivers accompanying guilty pleas -- that occurs in hundreds, if not thousands, of courtrooms every day. The cost of judicial economy when trial courts guess (and, more to the point, guess incorrectly) is very high. It is in these instances that guidance avoiding that high cost makes the most sense. Second, and relatedly, those cases also involve procedures that occur in courtrooms every day, so the higher courts are in some sense exercising their supervisor powers over the lower courts. Lastly, an appellate court can give such guidance only if there are enough votes to do so. If a majority of judges cannot agree on what greater guidance to provide, the opinion may simply provide no guidance and be limited to its specific facts.

Thus, although the courts' hesitancy to give guidance for future cases seems maddening at first blush, there is some method to that madness. I suppose the same can be said of my parents' approach to spelling, although an article about appellate G-U-Y-D-A-N-C-E may have been way more interesting.