The Due Process: Criminology

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Introduction

Due process refers to the process that a government should use to handle its citizens in case of a law violation to ensure that there is justice and fairness. The government must under all circumstances respect every individuals legal rights as dictated by the law (Tribe, 1975). Due process refers to the government as the only body that can protect people through the law of land from being deprived of their rights by the state. According to the US constitution, the fifteenth and the sixteenth amendment states that the government should not deprive individuals right to life, liberty or property ownership unless by following the due process (Waseman, 2004, p. 1). Before the state deprives an individual of his protected interest, the due process facilitates for the person to be given notice and a chance to defend himself/herself. This is just one of the procedures of due process.

The due process is believed to have its origin from the Magna Carta. This was a personal treaty agreed upon by King John and some noblemen who were rebellious to his leadership. Apart from the noblemen, the Magna Carta also protected the rights of free men. This particular clause stated that No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed nor will we go upon him nor send upon him except by the lawful judgment of his peers and by the law of the land (Waseman, 2004, p. 2). The term due process became operational in a 1354 reissue of the charter that allowed deprivation of a persons rights only after court proceedings whereby the individual was allowed to defend himself and that enough proof had to be produced.

Under certain circumstances, certain bodies of the government are given the power to violate some personal interests protected under the due process clause. For instance, the state prison regulation can do so by ensuring that it has substantive predicates and through some explicitly mandatory language, it must specify the results after the substantive predicates have been adhered to. For example, it is this facilitation that allows the state prison to have distinct and identifiable attire for the prisoners.

However, before the accused is convicted to be guilty, he must be allowed to wear his normal clothings through the trial process since deprivation of such right may trigger a biased court ruling. Furthermore, the accused must be duly notified of his offenses way before arresting to give him substantial room to prepare for the trial (Lectric Law Library, 1995-2000).

The Adversary System

The due process is brought into accomplishment through the adversary system which is lawyer controlled. The adversary system differs from the inquisitorial system used among civil law countries like Italy and France which is controlled more by judges than lawyers. However, the two systems have not been consistent in the control whereby we find at times judges taking more control in the adversarial system as well as the lawyers taking more control in the inquisitorial system (Subrin & Woo, 2006, p. 23)

The adversary system is composed of the prosecutor, the defendant, and the judge (Samaha, 2005, p. 276). The prosecutor represents the government, the state, and the commonwealth team was mainly known as the peoples team (Samaha, 2005, p. 276) while the defendant represents the defense counsel. The judge is neutral in this case and his role is to listen to both parties and come up with a decision without taking sides. The peoples team and the defendant must therefore fight hard while maintaining fairness to convince the judge of their innocence or to prove the other party guilty. This is usually carried out by the rules which are clearly outlined by the constitution, the statute, and the court rules (Samaha, 2005, p. 276).

During the trial, the lawyers on both sides are only required to give their side of the story and nothing more while accompanied by evidence. The rules only allow them to present their argument and evidence to the judge in a manner favoring their interests or to their benefit. The judge is supposed to listen to both parties and through the powers given to him by the law to interpret the rules, he is meant to decide depending on the facts provided by the two parties on who is guilty beyond a reasonable doubt and who could be innocent. The adversary system portrays US justice as open, fair, impartial and dignified (Samaha, 2005, p. 276).

The adversary system was put into place to ensure that the true story wins after the case has been heard, all evidence produced and both parties have been allowed to give their side of the story. Unfortunately, the mission and the goals of the adversary system are not always reflected in many court rulings. This is usually brought about by various reasons. The prosecution and the defendants side may not be evenly matched leading to the improper presentation of information which may result in unfair conclusions.

This is usually determined by the ability of the lawyer to defend his client in court which may probably depend on the financial ability of the client to hire quality lawyers. Also, the trial judges may not be neutral as they are supposed to be whereby they may be taking sides thus resulting in unfair judgment. The case of the trial judges is triggered by the fact that they go through periodic elections thus they may rule a case in a manner to favor their future in the job (Samaha, 2005, p. 276).

The adversary system has not been the best for all and has been facing criticism from various critics based on its unfair areas. Critics of this system claim that it distorts the truth in various ways. For example, the parties involved may hide or distort the required evidence which denies the duly enough basis for their decision. Again, it is viewed as a costly and tedious system as it allows unnecessary arguments and wrangles. The adversary system is also viewed as unfair mainly to the poor. This is because the wealthy may have the financial ability to carry out more investigations and to hire skilled lawyers whereas the poor are left to utilize the limited public legal services (Subrin & Woo, 2006, p. 23).

Rights of the Accused

The adversary system outlines several rights that the accused is entitled to. First, the accused is entitled to the right to the due process, equal protection by law and right to duly trial (Subrin & Woo, 2006, p. 23). He should be given notice before any proceedings, be it arrest or decision-making after the case has been heard. He should also be allowed to defend himself. On the issue of equal protection by law, the accused should not be based on the grounds of race, religion, ethnicity, sex, whether it is an individual, business or state or on basis of wealth or political power (Subrin & Woo, 2006, p. 23). He has a right to challenge the government. He has a right to freedom and open competition in that he is entitled to the freedom of speech and is free to have a lawyer of his choice and settle on a fair fee (Subrin & Woo, 2006, p. 23).

Criminal Process

From what has been covered above, crime can be defined as any action carried out intentionally or accidentally that does violate the law. A crime has also been defined as: an offense against the state punishable by fine, imprisonment, or death (Court 2008, p. 1). It should be noted that a hurtful action does not automatically imply it is a crime but rather it must be an action which violates a criminal statute duly enacted by Congress, a state legislature, or some other public authority (Court 2008, p. 1).

A criminal process is said to occur upon the breaking of a law. Four steps can be identified in the criminal process: arrest, indictment, trial, and appeal (Court 2011, p. 1). If any of the first three steps are omitted then the due process is compromised and there would have been no justice done. The fourth step is usually carried out when there is a feeling that the first three steps were not carried out duly and thus it is a way of ensuring that the due process prevails in the course of the criminal process.

Procedures before a criminal trial

A criminal trial is preceded by some procedures. It has been shown that the procedures varied from state to state and are dependent on the U.S. Constitution and state constitutions, some by court decisions, and others by legislative enactments (Court 1). However, generally speaking, the following steps are followed in the event of a criminal trial.

Arrest

This is described as the first encounter between the person accused and the state. A person can be arrested with a warrant or without one. A warrant of arrest is issued when a person has convinced a magistrate that there is a reason for a given person to be arrested. A person arrested without arrest occurs when the person is present at the scene of a crime or when a police officer is fully convinced that a person has participated in a violation of the law. It is noted that most of the arrests take place without arrest warrants. If the person violating the law is minor then most police officers are advised to give a warning in preference to an arrest. Another incidence when a police officer opts not to make an arrest is when the victim of a crime is perceived to have been involved in some misconduct.

Appearing before a Judge

After a person is arrested, the police make the necessary recording and the person ought to appear before a magistrate without any unnecessary delay. Only 48 hours are allowed for any person arrested without any warrant to be detained. Before a person appears before a magistrate he has a right to be informed of the crimes committed and the options which he/she can use to defend herself. The magistrate determines whether a person should be released on bail or not. The next step is the person is taken through the preliminary hearing. Grand juries are used in the preliminary hearing though it is noted that not all states use the grand juries.

If it is determined that the arrested person has a case to answer then arraignment follows. Arraignment has been defined as the process in which the defendant is brought before the judge in the court where he or she is to be tried to respond to the grand jury indictment or the prosecutors bill of information (Court 1). The defendant is informed of the options to defend himself/herself. The defendant can plead guilty or not guilty. If a defendant pleads not guilty then a trial date is set but if he/she pleads guilty then plea bargaining is agreed upon. Plea bargaining has three advantages: the defendant stands a chance to get a lesser charge; there is a possibility of avoiding a charge which has a social stigma, and the possibility of avoiding a felony.

Criminal Trial Hearing

A former trial proceeds if the defendant maintains innocence. The sixth amendment dictates that the accused person is entitled to a quick trial. The same amendment has requires that the jury be impartial. The Fifth Amendment dictates that: no person shall be subject for the same offense to be twice put in jeopardy of life and limb (Court 1). The accused has a right not to be compelled in any criminal case to be a witness against himself (Court 1). Finally, according to due process, any evidence collected unconstitutionally cannot in any way be used against the accused.

The defendant can choose to have a judge or a jury hearing for the case. If the accused prefers the jury then they are vetted and the trial begins by opening statements being made from the prosecution and defense.

Afterward, the prosecutor presents the evidence and makes the necessary argument while the defense on the other hand defends the accused. The role of the jury in the course of the trial is usually passive. After the trial, the jury makes their decision based on the proceedings of the trial, and later the judge gives the ruling. If the accused is found not guilty then he/she is declared not guilty but if guilty then a sentence is passed. In case the accused is found guilty then he/she has an opportunity to appeal if there is a feeling that there was a mistake in the ruling.

Conclusion

The due process clause has been a very essential clause to the ordinary citizens since it is a means of assurance that every freeman has the freedom to enjoy his rights according to the law of land. There are many instances that people are mistakenly suspected of criminal cases and due process has always been there to ensure that these people are tried in the right manner. The adversarial system, the rights of the accused, and the post-arrest procedures are some of the essential components of the due process that has promoted peoples rights since its establishment.

References

Court. (2008). U.S. Criminal Court Process. US Dept. of State. Web.

Lectric Law Library. (1995-2011). Due Process. Lectric Law. Web.

Samaha, J. (2005). Criminal Justice. New York, NY: Cengage Learning.

Subrin, S. & Woo, M. (2006). Litigating in America. New York, NY: Aspen Publishers.

Tribe, L. (1975). The Structural Due Process. Hein Online. Web.

Waseman, R. (2004). Procedural Due Process. Westport, Greenwood publishing.

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