The Incorporation of the Bill of Rights in Criminal Procedure: Protections and Differences Between Procedural and Substantive Laws

The Theory that the Fourteenth Amendment incorporates the Bill of Rights established the foundation for the Warren Court’s criminal procedure revolution. The U. S. Supreme Court has incorporated many of the protections and prohibitions in the Bill of Rights. These protections are available to criminal offenders. In this paper, I will discuss which protections do not apply to the states. And the differences between the two laws: procedural and substantive. As you continue on reading, you know about, which protection is considered procedural and substantive.

The protection against “ex post facto” laws means that the State cannot pass a law after a person has committed a crime and then prosecute the person for the first crime. You can only be prosecuted under the laws that in effect at the time of the crime. The protection against “Bills of attainder” prevents the State from passing a law meant to punish a certain person without judicial process. The Fourth Amendment provides general protection against arbitrary search and seizure of person(s) and property. However, there are many exceptions to the Fourth Amendment that includes a warrant.

It still, does not provide broad protection of the general public from inappropriate police conduct. The Fifth Amendment provides a handful amount of protection. The protection against “double jeopardy” (which means being tried more than once for the same offense) comes from this amendment. The right to remain silent came from a defendant’s Fifth Amendment right not to be compelled to be witness against himself. This Amendment provides a broad right to due process of law. The most important Amendment is the Sixth.

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This Amendment gives criminal defendants the right to assistance of counsel, the right to compel witnesses to appear at trial, the right to cross-examine witnesses at trial, the right to trial by jury, and the right to be informed of the nature of charges that have been filed against them. The right to speedy a trial allows the defendant’s trial to be waived and prevents the state from incarcerating a defendant. Procedural law comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings.

The court needs to conform to standards setup by procedural law, during proceedings. These rules ensure fair practice and consistency in the “due process”. Substantive law is a statutory law that deals with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced (Procedural Law vs. Substantive Law, 2013). Procedural law is exactly what the name implies. It sets out the procedure for how a criminal case would proceed.

Every state has their own set of procedures which is usually written in a set of rules called a “code of criminal procedure”. Substantive law deals with the “substance” of your charges. Every charge is comprised of elements. Elements are the specific acts needed to complete a crime. This law requires that the prosecutor prove every element of the crime in order for someone to be convicted of the crime. I believe that the Fourth Amendment is procedural because it takes procedures to be able to search and seizure a person(s) and their property.

You just can’t go in and search with a reason and a warrant. To obtain a warrant you have to have a reason and steps to receive it. The Fifth Amendment is substantive because it deals with the structure and facts of the case. It defines the rights and duties of the defendant. The Sixth Amendment has the most procedural rights. It enable the right to a speedy a trial, impartial jury, informed of nature and cause of accusation, confront opposing witnesses compulsory process for obtaining favorable witnesses and right to counsel. In conclusion, the U. S.

Supreme Court has, through the due process clause of the 14th Amendment, incorporated many of the protections and prohibitions contains in the Bill of Rights. While reading this paper, you now know the protections that are available to criminal offenders through the bill of rights that do not currently apply to the states. You also read about the differences between procedural and substantive protections for the criminal offenders in the Bill of Rights. Included in this paper, you read about which protections were procedural and substantive in the Bill of Rights.

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