NCJ Number
44217
Journal
Michigan Law Review Volume: 75 Issue: 7 Dated: (JUNE 1977) Pages: 1320-1425
Date Published
1977
Length
106 pages
Annotation
CRIMINAL PROCEDURE DECISIONS OF THE U.S. SUPREME COURT DURING THE TENURES OF CHIEF JUSTICES EARL WARREN AND WARREN BURGER ARE COMPARED, AND COMMENTS ARE OFFERED ON THE IMAGE OF THE BURGER COURT.
Abstract
THE BURGER COURT'S TREATMENT OF THREE MAJOR THEMES PRESENTED IN THE WARREN COURT'S DECISIONS -- SELECTIVE INCORPORATION, EQUALITY, AND EXPANSIVE INTERPRETATIONS OF CONSTITUTIONAL RIGHTS -- IS EXAMINED. ANALYSIS OF THE SELECTIVE INCORPORATION OF BILL OF RIGHTS GUARANTEES INTO THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT LEADS TO THE CONCLUSION THAT THE SELECTIVE INCORPORATION PRINCIPLE, WHICH PROVIDED THE DOCTRINAL BASIS FOR MANY OF THE WARREN COURT'S DECISIONS, REMAINS FIRMLY ESTABLISHED UNDER THE BURGER COURT. THE BURGER COURT HAS NOT UNDERMINED, AND IN SOME CASES HAS EXPANDED UPON, THE EQUALITY THEME ESTABLISHED IN THE WARREN COURT. THE COMPARISON OF THE TWO COURTS WITH REGARD TO EXPANSIVE INTERPRETATIONS OF CONSTITUTIONAL RIGHTS THAT PROTECT THE ACCUSED TOUCHES ON THE RIGHT TO JURY TRIAL, DOUBLE JEOPARDY, THE RIGHT TO SPEEDY TRIAL, FORFEITURE OF CONSTITUTIONAL RIGHTS, AND POLICE PRACTICES (IDENTIFICATION PROCEDURES, POLICE INTERROGATION, SEARCH AND SEIZURE). IN MOST AREAS OTHER THAN POLICE PRACTICES, THE BURGER COURT HAS EITHER EXPANDED UPON WARREN COURT INTERPRETATIONS OR HAS LEFT GOVERNING GUIDELINES LARGELY AS THEY STOOD UNDER WARREN COURT DECISIONS. ALTHOUGH BURGER COURT DECISIONS ON POLICE PRACTICES HAVE RESTRICTED THE SCOPE OF CERTAIN WARREN COURT RULINGS, THE RESTRICTIONS HAVE NOT SUBSTANTIALLY AFFECTED THE PRACTICAL IMPACT OF MAJOR WARREN COURT DECISIONS ON POLICE PRACTICES. IF PROPER ATTENTION WERE PAID TO THE ACTUAL HOLDINGS OF THE BURGER COURT AS OPPOSED TO THE STYLE OF ITS DECISIONS, WHOLESALE ATTACKS BY CIVIL LIBERTARIANS COULD GIVE WAY TO SUPPORT FOR RULINGS THAT STRESS THE NEED TO SAFEGUARD THE RIGHTS OF THE ACCUSED.