Incorporation & Exclusionary Rule.docx - Incorporation 14th...

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Incorporation 14 th Amendment is the starting point for most criminal prosecutions because most criminal prosecutions are done at the state level. - The 4 th , 5 th , 6 th , and 8 th Amendments 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 14 th Amendment o A limitation on state power, “no state shall make or enforce any law that abridges a privilege or immunity of any citizen of the United States.” o This means that states cannot take away the rights granted in the Constitution o The 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. o In the criminal context, the 14 th Amendment has come to protect citizen’s dues process rights from infringement by the states. o The process first used to determine what rights were protected was the “fundamental fairness/rights” approach, which is just concerned with the fairness of 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. - Duncan firmly established this selective incorporation rule o Selective incorporation combines aspects of both “fundamental rights” and “total incorporation” approaches. o It accepts the basic premise of fundamental rights proponents that the 14 th amendment encompasses only rights that are “of the very essence of ordered liberty.” o It 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.
o In 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 single aspect 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.**

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