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The Incorporation Of Due Process Rights

A. The Era Before Selective Incorporation

The Bill of Rights includes provisions that relate to criminal procedure. Before the 1960s, the Supreme Court repeatedly held that these rights were intended to apply only to the federal government, and rejected almost all arguments by defendants that these rights should be “incorporated” into the meaning of Due Process requirements for states under the Fourteenth Amendment.

During this era the Court recognized that First Amendment rights should be incorporated into the Due Process guarantee and applied to the states. The Court also incorporated the Fourth Amendment right to be free from unreasonable searches and seizures, but not the exclusionary rule remedy for violations of that right, which requires that evidence seized in violation of the Fourth Amendment is inadmissible a defendant’s trial, with some exceptions.

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