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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.

14th Amendment Due Process Clause Incorporation
Modern Approach: Selective Incorporation

“Fundamental to the American scheme of justice”

Freedom from unreasonable searches and seizures and the right to have excluded from criminal trials any evidence obtained in violation thereof
Prohibition against cruel and unusual punishment
Assistance of counsel
Privilege against self-incrimination
Confront opposing witnesses
Speedy trial
Compulsory process for obtaining witnesses
****Virtually all clauses have been incorporated except the limit of reasonable bail and not excessive fines

Still selectively incorporating, but Ct. finally looking for the meaning of these rights, and the fairness of a criminal trial

Not in simply the outcome of the trial, but in our values as a free society

Palko v. Connecticut, 302 U.S. 319 (1937).

DP clause doesn’t require you incorporate all rights w/in the BOR à instead, only incorporate those which are so intertwined w/ the theory of fundamental fairness

“Shocked the conscience”
Essential aspect of ordered liberty

Case-by-case analysis of what is incorporated under the 14th Am.

Adamson v. California

CA is one of the few states which allow the prosecutor to draw inferences for the jury; P felt this wasn’t a part of fundamental fairness b/c it practically forced him into testifying against those inferences

Then it becomes a 5th Am. issue à right against self-incrimination

S.C. says that the right against self-incrimination isn’t a fundamental right in state courts; in federal courts, this never would have happened

Duncan v. Louisiana

Fundamental fairness does include the right to a jury trial

But states don’t have to require a unanimous jury to uphold a conviction
States do not have a minimum of jury-members either, but most have held that 5 is too little, and 12 is about standard

Non-jury trials (severe penalty-crime)

Under 6 months in jail and less than $500 fine is a relative floor / ceiling
So the 2 years imposed on P is a little too much to be considered minor

Ring v. Arizona à 2 years ago, S.C. wrote an opinion that overrules Walton à says that right to jury trial includes the jury deciding whether there were aggravating circumstances, b/c they were elements of the crime

Essentially hands the sentencing to the j

rm caused to the criminal? Yes!
Also says it is hugely unfair to require the police to challenge a judge’s decision in issuing a warrant
This is not a guaranteed allowance though — exceptions:

Judge was misled in issuing the warrant, knew affidavit was false, should have know, or recklessly disregarded the truth
Completely ignores any sort of probable cause in issuing the warrant
Judge completely allows for things to be seized that the police should be able to pick up on it

Different remedies for those who are searched illegally but never charged

Pennsylvania Bd. of Probation and Parole v. Scott

Exclusionary rule does not apply in parole hearings
Balancing test à loss of liberty v. impaired law enforcement

Already dealing w/ somebody who has broken the law à interest in protecting society is higher

Grand jury proceeding
Civil tax proceedings
Immigration proceedings