CRIMINAL PROCEDURE LITTLE FALL 2016
INCORPORATION DOCTRINE
OVERVIEW AND HISTORY:
The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Fourteenth Amendment but early on it was unclear under which of the clause of the 14th.
Incorporates rights that are fundamental for American scheme of the criminal justice!!
The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. Privileges and Immunities clause forbids the states from denying its citizen “the privileges or immunities of citizens of the United States.
However, in the Slaughter-House Cases (1873), the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states.
To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.
Hurtado v. Calif: The Court acknowledged that due process clause applies to state criminal process, BUT held that the 5th \Amendment Grand Jury right does not apply against the States. Never been overruled!
1900: Maxwell: 6th Amendment jury trial right does not apply to States.
1907, 1908 –5th Amendment right not to be “compelled” does not apply to States. Barrington (1907), states can “sweatbox” ; Twining (1908): States can draw adverse inference against defendant who does not testify….and many other examples of courts finding that BoR doesn’t apply to the states.
INCORPORATION BEGINS:
Powell: 9 black men charged and convicted for rape and murder of 2 while women. They only got a lawyer the day of the trial.
Court held that right to counsel is part of 14th Amendment Due Process (no 6th A rationale).
1936 – Brown: Brown charged and found guilty for murder. Prosecution used his confession at trial. Brown argued that he was tortured. Judge instructed the jury not to consider confession if they found reasonable doubt that he was indeed tortured to confess.
Court found that confession obtained by “torture” can’t be used. (Again DP, not 5th A.).
Judge was wrong in giving jury such instructions.
1937 – Palko:
Decided after Powell and Brown and uses Due Process as a principle under which BoR can be incorporated BUT Cardozo in the opinion develops a test as to WHEN Due process should be used to incorporate a right.
Cardozo says that due process applies ONLY for “fundamental principles of fairness”. Very restrictive test.
In Palko, 5th Amendment of double jeopardy was found not to apply to the states under fundamental fairness test.
FULL OR SELECTIVE INCORPORATION?
– Justice Black dissent in Adamson: Argues that all the rights in Bill of Rights should apply against States, as part of 14th Amendment Due Process. SCOTUS rejects this idea.
– Justice Harlan appointed to SCOTUS: disputes Black, only “selected” rights should apply, if necessary for “fundamental fairness.”
– The “Warren Court.” One by one Bill of Rights fully “incorporated” into 14th Amendment Due Process although a few remain not incorporated. Prior “no incorporation” decisions are overruled. Except Hurtado.
– Duncan: 6th A jury trial right incorporated; “fundamental to the American criminal justice system.”
1970 – Winship: even rights not in B of R text can be “selectively” incorporated.
– McDonald: 2nd A right to “bear arms” incorporated against States. (Thomas concur: “Privileges & Immunities” protection of 14th A should be revived.)
ROLE OF LAWYERS IN CRIMINAL JUSTICE SYSTEM:
PROSECUTORS:
Berger v. United States: (Cited in Justice White’s dissent in
or court. Perry therefore filed notice of appeal to the superior court. However, the prosecutor then obtained an indictment charging Perry with felony assault with a deadly weapon with intent to kill or cause serious injury. Perry entered a plea of guilty. Perry argued that his felony indictment was a penalty for exercising his right to a trial de novo and violated the Due Process Clause of the Fourteenth Amendment.
Holding:
Where a defendant invokes his right to a trial de novo after being convicted of a misdemeanor, but the prosecutor then charges him with an equivalent felony, the potential for prosecutorial vindictiveness makes the more severe charges a violation of the defendant’s due process rights.
This Court’s holding in North Carolina v. Pearce, 395 U.S. 711 (1969), established that due process is violated where an increased punishment, motivated by vindictiveness, results from the defendant’s pursuing his right to appeal.
Whether or not the prosecutor in this case actually acted maliciously is not at issue. In Pearcethis Court held that the defendant’s fear of the judge’s, prosecutor’s, or jury’s retaliatory motivation is a violation of due process in and of itself.
Therefore, it was unconstitutional for the prosecutor to bring more serious charges against Perry before his de novo trial.
(1984) – Plea = Negotiations; not Vindictive
Presumption of vindictiveness will not apply in plea bargaining context; Prosecutors can say if you plead we’ll charge you with only one count, but if you don’t we’ll charge you with two
This is not vindictiveness, it’s just negotiating
