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The Incorporation Of Due Process Rights

B. The Selective Incorporation Era

During the 1960s, the Court “selectively” incorporated almost all of the rights related to criminal procedure in the Bill of Rights into the Due Process guarantee of the Fourteenth Amendment that applies to the states. These rights include:

a. The Fourth Amendment exclusionary rule.

b. Sixth Amendment rights. These rights include the right to assistance of counsel, the right to a speedy and public trial by an impartial jury, the right to be informed of the nature of charges, the right to be confronted with witnesses against oneself, and the right to have compulsory process for obtaining witnesses.

c. Fifth Amendment rights. These rights include the right not to be compelled to be a witness against oneself and the right not to be put twice in double jeopardy for the same offense.

d. Eighth Amendment rights. This incorporated right is the right not to have cruel and unusual punishments inflicted.

The Court’s precedents imply that the Fifth Amendment right to indictment by grand jury is not a Due Process requirement.

Court precedents also imply that the Eighth Amendment prohibitions on excessive bail and excessive fines should be incorporated into the Due Process guarantee, although such incorporations have not been endorsed explicitly.

Lower courts are divided as to whether Court precedents support the incorporation of the “vicinage” requirement of the Sixth Amendment, which requires jurors to come from the state and locality where the crime was committed.

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