What is Due Process?

Due process, drawn from the Fifth Amendment of the United States Constitution, gives legal rights and protection to any citizen accused of a crime. Due process provides legal protection for citizens, their freedom, and protection of their property and establishes strict guidelines to ensure that each individual is treated in a fair and just manner. The Fourteenth Amendment is similar and applies to every state.

Each aspect of the criminal justice system is complex, and pretrial procedures are no different. To remain in compliance with the constitution, and to ensure due process, the law requires that specific steps must be followed in the period leading up to a court appearance. All parties involved must follow these guidelines during the pretrial procedure; however, not all cases make it to trial.

An initial appearance to inform the defendant of his or her rights is held usually within two days of an arrest being made. A judge conveys information to the arrested party about their legal rights, and to allow the person to make arrangements for legal defense. The court is able to appoint a public defender if it is beyond the financial means of the defendant. At the initial appearance, some offenders plead guilty and are able to receive their sentence from the judge on the same day. However, this is not the case for felony offenses, because those are determined by federal law which is outside of the jurisdiction of a local court.

Sometimes an individual is released on bail. Bail is an amount of money charged by the court to ensure the offender returns for his or her court appearance; if the offender fails to appear in court on the prescribed date, the bail is forfeited and is retained by the court.

According to the Sixth Amendment, a defendant has the right to be represented by an attorney. During a preliminary hearing, the defendant and his counsel have access to evidence which is to be used in the case against them. At the preliminary hearing, the judge decides if there is sufficient cause for a trial; alternatively, some states and the federal government require a grand jury to make this determination. If probable cause is determined by the jury, and indictment is issued (Gaines & Miller, 2006, p.226). At the arraignment, the offender is informed of the charges and enters a plea. Sometimes, bargains are made for a lighter sentence in exchange for the implication of other offenders.

The Sixth Amendment also has other purposes which are in place to protect the defendant, these stipulations include "the right to a speedy and public trial, by an impartial jury"(Gaines & Miller, 2006, p.231). At times, it may seem impossible to find citizens to become a part of an impartial jury. High profile cases such as the Laci Peterson murder are a fine example of this situation.

Similar to the problem of finding unbiased jury members for a murder case or a celebrity trial, gender and race can also play a role in making pretrial proceedings awkward. An impartial jury is not good for either party who needs to sway opinion in their favor, but it has caused problems in the past, particularly for African Americans who were considered to be biased when the defendant was also African American. Laws have been revised over the years to allow for equal rights for all parties concerned (Gaines & Miller, 2006, p.236).

Selecting appropriate jurors is vital for any case, however, if an attorney forms an opinion of a potential jury member and wishes to exclude them, they may exercise "a limited number of peremptory challenges"(Gaines & Miller, 2006, p.236). If the challenge is allowed, the potential juror is then removed from the process based solely on the attorney's opinion that they may be biased and detrimental to the case.

Each step of the pretrial procedure is critical, and for any case to run as smoothly through the court system as possible, no step can be overlooked. Protecting an individual's rights as set forth by the Constitution is paramount, and each person charged with an offense is presumed innocent until proven otherwise.

Everyone citizen is entitled to due process, and the Fifth, Sixth and Fourteenth Amendments ensure that legal representation, protection of liberties, and the pretrial procedures above are afforded to everyone until they can state their case in a court of law.

Reference

Gaines, L. & Miller, R. L. (2006). Criminal justice in action: The core (3rd ed.). Belmont, CA:

     Thomson/Wadsworth. ISBN: 0-495-00305-4.