Retro + Incorporation

Question 1

Incorporation

Answer 1

Bill of Rights are made available to the states through due process clause of 14A

Question 2

Bill of Rights not Incorporated

Answer 2

Only 1 - Indictment by Grand Jury

Question 3

Bill of Rights

Answer 3

first 10 amendments - free speech, bear arms, right to speedy trial, right to counsel, etc

Question 4

Prevailing incorporation option

Answer 4

Selective incorporation - Whether right is fundamental to the American Scheme of Justice

Question 5

Duncan v Louisiana

Answer 5

“Duncan donuts are selective”
Selective incorporation was born

Question 6

What is Retroactivity

Answer 6

If the courts decision will have an effect on past prior decisions

Question 7

Reasons for not liking retroactivity

Answer 7

(1) would result in alot of retrials
(2) disadvantage govt agents who relied on the rule at that time

Question 8

Teague v Lane

Answer 8

Lane Fritz was so retro
Retroactivity - New constitutional rules are applied to cases pending direct review

Question 9

Collateral Review Retroactivity Expectations

Answer 9

(1) Rule is substantive rather than procedural
(2) Rule would say “trial shouldn’t have happened in the first place”

Question 10

Retroactivity rule = substantive if

Answer 10

alters range of conduct or class of persons that can be punished

Question 11

What is a “new rule”

Answer 11

if the result was not dictated by precedent existing at the time the conviction became final

Question 12

Collateral review exception example

Answer 12

Ex. Gay men were locked up for having sex, then court passes a law saying gay sex is okay, then the rule is applied retroactively