Incorporation
· “fundamental rights” in justice was the first view of what is incorporated through the 14th amendment to the states
o 14th amendment applies to states
· 1. Selective Incorporation – predominant view
o Incorporation for rights that are “fundamental to American Justice”
o Implicit in the concepts of ordered liberty
· 2. Harlan’s no incorporation
o Fundamental rights
§ Just because the Bill of Rights prohibits it doesn’t mean the states have to do it
§ Case-by-case analysis – whether in the context of this case the rule should be applied
· 3. Total incorporation – Black
o Bill of Rights applies to states
Substantive Due process
· Can never be violated, even where procedural due process is met, substantial due process can be violated
o “Shocks the conscience”
· Protection against arbitrary and unfair government action
o Like beating a suspect even after giving them Miranda warnings
Difficulty in defining this right
· Can you pick and choose your lawyer?
· Should the state appoint you a lawyer if you can’t afford one?
· Does the state have to pay for your witnesses or experts?
Right to attorney during the Constitutional Era
· Only those who could afford an attorney were entitled to one
· Only limited access to attorneys during trial
1930’s USSC required federal appointment of defense counsel
· Later, states had to provide counsel in state capital cases were D could not represent himself
o But this was problematic as well
Betts v. Brady
· Due process under the 14th does not obligate the states to appoint counsel
· The defendant was of ordinary intelligence and had been tried before
o Therefore, the court found he could represent himself
OVERRULED BY Gideon v. Wainwright
· Lawyers are necessary for proper defense under the due process clause
· The fact that the state hires laywers to pr
ust have a rationale distinction
o Rinaldi – no rationale relationship between incarceration and the goal of reimbursement
· Another part of this:
o D’s who appeal and are successful on appeal don’t have to pay the court back
o D’s who aren’t successful have to pay the cost of appeals
o This is not invidious
When can D retain counsel
· As a general rule, D can only have counsel present when:
o 1) adversarial proceedings begin; AND
§ this begins when D is named as a defendant before a judge
o 2) event or encounter with the government where D wants his attorney present have to be critical stage of the proceedings
§ when the presense of a defense counsel is necessary to protect the fairness of the proceeding
very subjective standard
