Incorporation14thAmendment is the starting point for most criminal prosecutions because most criminal prosecutions are done at the state level. -The 4th, 5th, 6th, and 8thAmendments are the parts of the Bill of Rights relevant to the rights of citizens in criminal prosecution.-The Bill of Rights is a limitation on the power of the Federal Government, not on the State governments. -We came out of the Civil War with the 14thAmendmentoA limitation on state power, “no state shall make or enforce any law that abridgesa privilege or immunity of any citizen of the United States.”oThis means that states cannot take away the rights granted in the ConstitutionoThe Slaughter House cases took away much of the substance of the 14th Amendment a decade later, it only protected “fundamental rights” – everyone agrees that Slaughter House was wrong.oIn the criminal context, the 14thAmendment has come to protect citizen’s dues process rights from infringement by the states. oThe process first used to determine what rights were protected was the “fundamental fairness/rights” approach, which is just concerned with the fairnessof the state prosecution Ex. Miranda Rights – would our criminal system be fundamentally unfair without requiring police to inform arrestee’s of their right against self-incrimination? McDonald v. City of Chicago (2010)-Detailed various cases dealing with the relationship between the Bill of Rights and Fourteenth Amendment Due Process.-In the 1960’s the Warren Court used “selective incorporation” to absorb more and more of the specific provisions of the Bill of Rights under the Fourteenth Amendment due process.-Duncanfirmly established this selective incorporation ruleoSelective incorporation combines aspects of both “fundamental rights” and “total incorporation” approaches. oIt accepts the basic premise of fundamental rights proponents that the 14thamendment encompasses only rights that are “of the very essence of ordered liberty.” oIt also recognizes that not all rights enumerated in the Bill of Rights are necessarily fundamental and that other rights may be fundamental even though not found in the first eight Amendments.
oIn determining if an enumerated right is “fundamental,” selective incorporation looks to the total right guaranteed by the particular Bill of Rights provision, not merely at a singleaspect of that right nor the application of that aspect in the case before it.-The adoption of this position was accompanied by a movement towards a broader view of the nature of “fundamental procedural rights” as described in McDonald-The end result was the incorporation of all of the Bill of Rights guarantees bearing on the criminal justice process, except for the Eighth Amendment’s excessive fine clause and the Fifth Amendment’s grand jury clause.**