Due Process Essay

Due Process Nancy Nevarez August 25, 2010 Hal C. Kern III CJA 224 Due Process Due process is procedures that effectively guaranteed the individual rights in the face of criminal prosecution and those procedures that are fundamental and rules for a fair and orderly legal proceeding. Due process have the Fifth and Fourteenth Amendments constitutionally guaranteed rights of an accused to hear the charges against him or her and to be heard by the court having jurisdiction over the matter. It is the idea that basic fairness must remain part of the process, and it ensures fairness to an individual and to prevent arbitrary actions by the government.

It is a process of rules and procedures by which discretion left to an individual is removed in favor of an openness by which individual rights are protected. The Fifth Amendment states “no person shall… be compelled in any criminal case to be a witness against himself. ” It also states “no person shall… be deprive of live liberty, or property, without the due process of law. ” The due process clause was made applicable to states government in Malloy v. Hogan (1964). Due process is an important concept of American law that no precise definition accurately suits it, even though the concept is clear.

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It is basic fairness must remain part of the process. It is the right to hear and the right to be heard. In the 50s and 60s the United States was called the era of the “due process revolution. ” During that time, public sentiment demanded the government be haled accountable and that the rights under the Constitution be applied equally to all. The government conduct was critically evaluated and the police conduct was especially brought into the public’s eyes. Examples of the police actions that “shock the conscience” were found to violate due process (Rochin v. California, 1952).

In Rochin, Justice Frankfurter started “due process of law, as a historic and generative principle, precludes defining and thereby confining these standards of conduct more precisely that no convictions cannot be brought about by methods that offend ‘a sense of justice. ’” Adversarial system is a legal system such as that used in the United States, which places one party against another to resolve a legal issue, stipulating that only in an actual conflicted will a judicial body hear the case. The adversarial system is our justice system meaning, that it has two sides.

In a criminal trial, these are the prosecution and the defense. Each is permitted to present their own evidence in their behalf; the both sides come into the trial on equal basis. Justice White of the United States Supreme Court, in the United States v. Wade pointed out that the system is not a true adversary system with both sides entering the trial on equal footing. He stated the following: “law enforcement officers (and prosecuting attorneys) have the obligation to convict the guilty and to make sure they do not convict the innocent.

They must be dedicated to making the criminal trial procedure for the ascertainment of the true facts surrounding the commission of the crime. ” The basic premise of the adversarial system in the American law is that justice is best served when both sides to conflict give their all. If each side is expected to aggressively assert its position, each side must be able to assert themselves from similar legal footing. Many societal ill are blamed on the lawyers representing their clients’ interests.

The rights of the accused is a “class” of civil and political rights that apply to a person accused of a crime, from when he or she is arrested and charged to when he or she is either convicted or acquitted. Rights of the accused are generally based on the maxim of “innocent until proven guilty” and are embodied in due process. In the United States, these rights are guaranteed in the Bill of Rights (the first ten amendments to the United States Constitution), particularly in the Fourth, Fifth, Sixth, and Eighth Amendments.

The right of the accused sometimes comes into conflict with promotion of victims’ rights. The rights and privileges of a person accused of a crime are very important. In most modern legal systems include the presumption of innocence until proved guilty, trial by jury, representation by counsel, the right to present witnesses and evidence to establish one’s innocence, and the right to cross-examine one’s accusers. Also important are a prohibition against an unreasonable search and seizure, the right to a speedy trial, and guarantees of freedom from double jeopardy and of the right to appeal.

In the United States a person accused of a crime must be notified immediately of the right to secure counsel and the right to refuse to answer questions if answering might be incriminating. References Meyer, J. F. , ; Grant, D. R. (2003). The Courts in Our Criminal Justice System. Prentice-Hall. Webster, M. (1995). Webster’s New Dictionary and Thesaurus 1995, Roberson, C. , Wallace, H. , ; Stuckey, G. B. (2007). Procedures in the justice system (8th ed. ) Upper Saddle River, NJ: Pearson Hall. Harr, J. S. , ; Hess, K. M. (2008). Constitutional law and the criminal justice system (4th ed. ) Belmont, CA: Wadsworth, Cengage Learning


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