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Criminal Procedure
Wayne State University Law School
Moran, David A.

Due Process Incorporation
Course will involve 3 constitutional provisions 4th, 5th, 6th.
When the BOR was ratified in 1791 the constitutional provisions applied only to the federal courts.
Due Process Incorporation 14th amendment…
“…nor shall any state deprive any person of life, liberty, or property without due process of law.”
It was not clear that the effect of the 14th amendment was to incorporate parts of the BOR until after WWII.
o        The seventh amendment does not apply to the states. The part that says you get a jury trial for civil cases.
o        The second amendment does not apply to the states. The court doesn’t even know if it exists nationally.
o        The third amendment does not apply to the states.
o        The right to be indicted does not apply to the states.
We have “selective incorporation” not “total incorporation”.
In MI, any provision related to criminal charges is incorporated.
Before incorporation the court did not believe the 14th applied them.
Rochin v. California(33)- Man swallows capsules of heroin in order to keep them from police. Police take man to the hospital and pump his stomach.
Holding: the state violated the 14th amendment due process clause rights because it was “shocks the conscience.” This was before incorporation. At this point the standard was “shocks the conscience”.
 -No incorporation
Schmerber v. California(35)-Police took a mans blood when he was unconscious to prove that he was drunk and convict them of manslaughter.
1.      This does not “shock the conscience” under the Rochin standard, but there was good reason to do this because the evidence was going to be lost. 
2.      They also used unreasonable search and seizure (4th amendment). They had incorporated the 4th amendment.
3.      They also said that the 5th amendment was not violated.
Impact: This is still the same thing we use today.
County of Sacramento v. Lewis(35)- Assailant hit during motorcycle high speed chase
1.      4th amendment rights not violated because he had not yet been seized.
2.      Only then they use the “shocks the conscience” standard (Substantive due process)
What we need to know…
Three functions of due process
1.      Incorporation
                                                        i.            Due process incorporates almost all of the guarantees of the BOR against the states.
2.      Substantive Due Process

te court.
§         p.220 Concerned that other remedies are worthless and futile. You would not want to prosecute police.
§         Turned the court around.
·         Political solutions are nearly impossible because politicians will not want to hurt the police, it would not help them get back into office.
·         A civil suit is possible, but in MI there are forms of immunity for police unless the actions are egregious. Even if a case is successful people are suing the city and taxpayers.
·         Exclusion. There is a theory that the police really care about getting convictions, and that would really get their attention.
If a neighbor breaks into your house and brings your drugs to the police station you can be prosecuted.
o        Private searches and seizures do not violate the 4th
o        Burdeau and Jacobsen are the SC cases that tell us this (pg244)
o        According to the court the 4th amendment violation never occurs because it wasn’t done by the government.