Functions of Due Process in the Criminal Law System Research Paper

Excerpt from Research Paper :

Criminal Law Due Process

Due process is an essential guarantee of basic fairness for citizens based on law. It has two basic goals; to produce accurate results through fair procedure to prevent wrongful deprivation of interests and to make people feel the government treated them fairly by listening to their side of the story (Procedural Due Process). Due process requires fair procedures when governments take actions against citizens, whether it is the federal government or a state government that is taking action.

Due process is divided into two categories, substantive due process and procedural due process (Due Process of Law - Substantive due Process, Procedural Due Process, Further Reading, 2013). Substantive law creates, defines, and regulates rights. Substantive due process makes the laws that give rights to citizens by due processes. Procedural law enforces those rights or seeks redress for violation of those rights. Evidence presented against a citizen will get suppressed if the governments violate or deprive citizens of rights they are entitled by law.

The Fifth Amendment tells the federal government "that no one shall be deprived of life, liberty, or property without due process of law" (Strauss). The due process clause in the Fourteenth Amendment gave states the same legal obligation. The due process clause embodies the commitment of legality where government must follow fair procedures before depriving a citizen of life, liberty, or property. This does not mean that rights cannot be taken away. It means that due process has to present fair processes to make the determination. All levels of government must operate within law and provide fair procedures.

"The Federal Rules incorporate and expound on all guarantees included within the United States Bill of Rights" (Criminal Procedure, 2010). The Federal Rules include guarantees of due process, equal protection under law, the right to legal counsel, the right to confront witnesses, the right to a jury trial, and the right not to testify against oneself. States are not allowed to offer fewer rights to criminals than what the Federal Rules offer. Although, some states do give more rights to criminal defendants than the federal rules offer. As long as the offer is the same rights as the Federal Rules they are allowed to do more or just the same in the offerings.

It is unconstitutional to deny due process. Citizens are entitled to have the government observe or offer fair procedures whether they are provided for in law on the basis of which it is acting. Due process is not required in the constitution in the making of laws, but is required in the actions against individuals in each case of individual grounds. It governs how law is applied and if violations of citizen rights occur. For example, a citizen cannot be deprived from potential entitlements once they qualify without due process. A welfare program must have a judicial hearing before it can close to prevent deprivation of citizen rights. Without the judicial hearing the program runs the risk of deprivation of citizen's rights because there was no due process involved.

Law enforcement must abide by the Fourth Amendment that prohibits the government from performing unreasonable search and seizure. Courts will suppress evidence obtained in an unreasonable search and seizure. To obtain a search warrant, law enforcement must have probable cause, must support the showing by oath or affirmation, and must have a particular description of the place to search and the items to seize. Exceptions to this law includes searches at a border, search following a lawful arrest, a stop-and-frisk arrest, where seized items are in plain view, where articles are in an automobile, where a private individual makes the search, and where the officer has probable cause for a search to find a crime or evidence relating to a crime.

A criminal defendant must be made aware of their rights prior to any statements if the government intends to use the statements as evidence against them. The defendant must knowingly, intentionally, and voluntarily waive those rights in order for the government to use any statements against them without being informed of those rights. Evidence will be suppressed by a court if law enforcement obtains statements from a defendant without reading the rights or receiving a waiver of those rights from the defendant.

The Sixth Amendment gives defendants the right to a speedy trial and the right to a public trial by an impartial jury of one's peers. During jury selection for courts, jurors can be removed without explanation if it proves they are partial in any way. Judges are also responsible to minimize the effects of publicity, either by gag order or eliminating outside influences. This can include banning media in high profile cases. This also can include removing any persons who cause a publicity scene in the court room.

Defendants have the right to call their own witnesses, mount their own evidence, and present their own theory of the facts. Prosecution must turn over all evidence that will be used against the defendant and give the defendant the right to pre-trial access of all evidence prosecution has against them. Defendants are entitled to have enough time to take evidence the prosecution plans to use against the defendant and mount their own evidence for defense before a trial date.

The law only permits prosecution to overcome the defendant's presumption of innocence if they can show guilt beyond a reasonable doubt. This includes the right to cross examine prosecution witnesses. The prosecution has the burden of persuasion, which is providing enough evidence to make a defendant stand trial. The jury determines whether a defendant is guilty or innocent. After that determination is made, the defendant has the right to offer allocution if found guilty before a judge issues sentencing. Allocution is a personal explanation or remorse given by the defendant. It can include apologies for wrong actions. The defendant also has the right to ask for mercy, but it is up to a judge to decide to give it. Judges have the right to give reduced sentencing based on a defendant asking for mercy, apologizing to victims, or otherwise acknowledging their wrong doing.

Defendants have the right to an attorney. If they cannot pay for an attorney, it is the government's responsibility to provide an attorney. The defendant has the right to legal counsel being present during police interrogation. Defendants also have the right to have legal counsel presence in all court proceedings and be able to communicate with legal counsel before going to court. The legal counsel provided by the government must be effective to protect the rights of the defendant.

Under the Fifth Amendment, "no person shall be held to answer for a capital, or other words infamous crime, unless on a presentment or indictment of a grand jury" (Fifth Amendment). In order for a defendant to be held responsible for a capital crime, there must be sufficient evidence presented to a grand jury that proves guilt beyond reasonable doubt to obtain an indictment. This is the government's efforts to eliminate innocent people being responsible for erroneous capital crimes they did not commit.

The Double Jeopardy Clause prohibits states from charging the same defendant with substantially the same crime on the same facts. Defendants cannot be charged the second time for crimes they were tried for that contain the same charges and same facts. Once a defendant has been proven innocent of a crime, they cannot be retried for the same crime unless they recommit the crime on another day.

What process is due is determined on a case by case basis. The law requires a judge to determine due process procedures based on law and fairness for parties, defense and prosecution, in each case. Due process is based on common law that is mostly determined by judges in court cases. The…

Sources Used in Document:


Criminal Procedure. (2010, August 19). Retrieved from Cornell University Law School:

Due Process of Law - Substantive due Process, Procedural Due Process, Further Reading. (2013). Retrieved from JRank:

Fifth Amendment. (n.d.). Retrieved from Cornell University Law School:

Procedural Due Process. (n.d.). Retrieved from University of Missouri:

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