The phrase “due process” has been in the news a lot recently. NFL players are being suspended and disciplined (some would argue insufficiently) after being accused of or charged with domestic violence or child abuse. Colleges addressing the problem of campus sexual assault are trying to balance the need to protect victims with the rights of those accused of committing such acts. In both contexts, you can hear a call for “due process” before decisions are made that could end a career or expel a student from school.
If you are charged with a crime, “due process” is perhaps the most important and fundamental concept that you need to understand. It is “due process” that is designed to protect criminal defendants from passion and prejudice and ensure that every individual who faces prosecution by the state has the ability to mount a full and complete defense.
Specific Constitutional Protections for Criminal Defendants
Due process is enshrined in the Fifth Amendment to the Constitution which provides that no person shall “be deprived of life, liberty, or property, without due process of law.” (The Fourteenth Amendment provides the same protection as to actions by the states). Other amendments in the Bill of Rights address specific elements of due process, most importantly the Sixth Amendment, which affords criminal defendants seven specific rights, all of which are essential to protecting our rights and our freedom:
- Right to a speedy trial
- Right to a public trial
- Right to an unbiased tribunal or impartial jury
- Right to full notice and explanation of the charges being brought and the grounds for bringing such charges
- Right to counsel
- Right to confront and cross-examine adverse witnesses
- Right to have the court compel favorable witnesses to appear
In addition to the foregoing rights set forth in the Sixth Amendment, due process also includes the following:
- Right to receive exculpatory or opposing evidence from prosecutors
- Right to call witnesses and present evidence
- Right to make a record that can be reviewed on appeal
- Right to have decision based solely on the evidence presented
- Right to review or appeal of a judge or jury’s decision
Loss of Your Rights Could Mean Keeping Your Freedom
Due process in criminal cases has many facets and nuances, and the ways in which defendants can be deprived of due process are numerous. When any element of due process is missing during a criminal prosecution, the fairness and constitutionality of the state’s attempt to deprive an individual of their freedom has been compromised. A defendant whose due process rights have been violated can challenge the prosecution on those grounds and potentially have the charges thrown out. Having an experienced criminal defense lawyer who understands the complexities of due process and who will aggressively protect your constitutional rights can be of critical importance when you’ve been charged with a crime.
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