The doctrine of selective incorporation offers provisions for selected bills of right and how they can be applied to the state under equal protection clause of the fourteenth amendment. The amendment restricted States from denying individuals their fundamental rights including life, property or liberty without the due process. In Gitlow v. New York (1925) the Supreme Court ruled that each state must protect the freedom of speech. The case by case decisions on the portions of the bill of rights applicable to the state led to selective incorporation. The doctrine was adopted in 1937 in the case of Palko V. Connecticut which rejected total inclusion. The due process limits laws and legal proceedings allowing judges to safeguard the justice, fairness, and liberty of an individual. The government, therefore, is called upon to exercise the right to the citizens. The prosecutor is required to disclose to the defense any evidence in their possession even if there is no request for that. The appellant can appeal to a higher court any judgment that was made against them. They must demonstrate that the trial court made an error which affected the case. They are therefore required to prepare a brief that discusses the legal arguments while trying to explain the mistakes made by the trial court and why the decision should be reversed (Gibson, 2016; Wildenthal, 2006).
Some of the bills of rights applicable to states include freedom of speech, press, and religion, the prohibition against state-established religion and rights to bear arms. Unreasonable search and seizure are also banned by the fourth amendment whereas the fifth gives the privilege to self-incrimination. The sixth offers rights to speedy trials while the eighth protects against cruel and unusual punishment. Some of the protections in the bill of rights that have not been applied at the state level include the right to a jury selected from the residents of a state as well as district from which the crime occurred. Another is the eighth amendment which applies to the issue of excessive fines (Wildenthal, 2006).
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Any violations of the rights and due process can be a basis for appeals of a criminal trial if the appellate feels that the trial court has violated their rights. They must demonstrate that the court made an error in its judgment. Similarly, an appeal can be made if the appellant feels that they have not been given a free and fair trial or if the jury made an error in its decision or that they were not adequately represented by the defense lawyer (Gibson, 2016).
An appeal to judgement is not an absolute right that is independent of the constitutional or statutory provisions that provide for the call. An appellate court reviews the final judgment of a case irrespective of the degree of seriousness of the matter. A state can allow or deny such a review as reaffirmed in Griffin v. Illinois (1956) where the Supreme Court held that the constitutional right of the petitioner was violated and the judgment of the judgment was vacated. The case was remanded to the court for further determination which afforded the petitioner effective review (Gibson, 2016; Wildenthal, 2006).
According to the court, when the state does not provide for appeals, it may not condition such privilege to deny some persons. The State, however, is not free not to have a corrective process where defendants can pursue remedies for violation of the federal constitution. An accused yet can be denied the restorative process if a judgment is executed based on a verdict produced by mob domination (Frank v. Mangum 1915). The absence of corrective procedure where a defendant alleges that the federal constitution has been violated contravenes the Fourteenth Amendment (Gibson, 2016; Wildenthal, 2006).
Limiting the right to petition under habeas corpus is denying the defendant their constitutional right. The government concerned should determine the manner of deciding a claim that makes a conviction unconstitutional. States have the power to devise systems of reviews for criminal cases. It can decide whether to have a direct appeal and in such a case, under what circumstances. States have many remedies and may provide that protection of the rights of an individual as granted by the constitution can be accessed through the writ of habeas corpus or even Coram Nobis. States can use such ancient writs in their common law scope (Wildenthal, 2006).
Individuals file appeals in the next higher courts in the system that originated the case or even collateral appeal where the appeal is done in a court of the first instance and most cases it is the court that tried the case. The appeal procedure and whether there is a right to appeal varies from state to state. A verdict from a state trial can be appealed to a state appellate court which follows state laws concerning appeal procedures. Therefore an individual can appeal to the state intermediate appellate court. Any such appeal is limited to the finals judgment as long as the trial court did not have a fundamental error in or there was an issue with the jurisdiction of the subject matter or even a constitutional question (Gibson, 2016).
A verdict from a federal trial court can be appealed in the U.S. Courts of appeal which determines whether the law was applied correctly by the trial court. Three judges sit in the appeal court and do not a have any jury. They hear any challenges to the district court or decisions and any federal administrative agencies. The highest court in the land is the Supreme Court which was created by article III of the Constitution. Any decision by the court is final and cannot be appealed. The court does not have original jurisdiction over criminal actions (United States courts, n.d).
References
Gibson, D. (2016). The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013 by Christopher Moore Christopher Moore. The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013. The Osgoode Society for Canadian Legal History. University of Toronto Press. Xxii, 338. $39.95. The University Of Toronto Quarterly , 85 (3), 481-482. http://dx.doi.org/10.3138/utq.85.3.481
Gitlow v. New York, 268 U.S. 652 (1925). (n.d.). Retrieved January 13, 2018, from https://supreme.justia.com/cases/federal/us/268/652/case.html
Palko V. Connecticut (1937). FindLaw's the United States Supreme Court case and opinions. . (2018). Findlaw . Retrieved 14 January 2018, from http://caselaw.findlaw.com/us-supreme-court/302/319.html
United States courts, (n.d). Court Role and Structure. Retrieved January 13, 2018, from http://www.uscourts.gov/about-federal-courts/court-role-and-structure
Wildenthal, B. (2006). Nationalizing the Bill of Rights: The Rise, Fall, and Rise of the Fourteenth Amendment Incorporation Doctrine (Book Manuscript, Introduction, and Chapters 1 and 2, May 2006 Draft).
