CRS Annotated Constitution

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The Supreme Court’s guardianship of state criminal justice systems under the due process clause has never been subject to precise statement of metes and bounds. Rather, the Court in each case must ask whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the[p.1746]very idea of a free government and is the inalienable right of a citizen of such government.”1 The question is whether a claimed right is “implicit in the concept of ordered liberty,” whether it partakes “of the very essence of a scheme of ordered liberty.”2 Inevitably, judgment expresses a determination that certain practices do or do not “offend those canons of decency and fairness which express the notions of justice of English–speaking peoples even toward those charged with the most heinous offenses.”3 More recently, the Court has eschewed as too abstract an inquiry as to whether some procedural safeguard was necessary before a system could be imagined which would be regarded as civilized without that safeguard. Rather, “[t]he recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common–law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo–American regime of ordered liberty. . . . [Therefore the limitations imposed by the Court on the States are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the context of the criminal processes maintained by the American States.”4

Applying this analysis the Court in recent years has held that practically all the criminal procedural guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth Amendments—contain limitations which are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law.5 However, the due process clause of the Fourteenth Amendment is not limited to those specific guarantees spelled out in the Bill of Rights,6 but rather contains protection against practices and policies which may fall short of fundamental fairness without running afoul of a specific provision.7


1 Twining v. New Jersey, 211 U.S. 78, 106 (1908) .
2 Palko v. Connecticut, 302 U.S. 319, 325 (1937) .
3 Rochin v. California, 342 U.S. 165, 169 (1952) .
4 Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968) .
5 Supra, pp. 957–64.
6 Justice Black thought the Fourteenth Amendment should be limited in this regard to the specific guarantees found elsewhere in the Bill of Rights. See, e.g., In re Winship, 397 U.S. 358, 377 (1970) (dissenting). For Justice Harlan’s response, see id. at 372 n.5 (concurring).
7 In re Winship, 397 U.S. 358 (1970) , held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt in criminal cases, such proof is a due process requirement. For other recurrences to general due process reasoning, as distinct from reliance on more specific Bill of Rights provisions, see, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973) ; Wardius v. Oregon, 412 U.S. 470 (1973) ; Mullaney v. Wilbur, 421 U.S. 684 (1975) ; Estelle v. Williams, 425 U.S. 501 (1976) ; Henderson v. Kibbe, 431 U.S. 145 (1977) ; Patterson v. New York, 432 U.S. 197 (1977) ; Taylor v. Kentucky, 436 U.S. 478 (1978) ; Kentucky v. Whorton, 441 U.S. 786 (1979) ; Sandstrom v. Montana, 442 U.S. 510 (1979) ; Hicks v. Oklahoma, 447 U.S. 343 (1980) .
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