Due Process
Court Systems and Practices
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Due Process
Due Process – an established course for judicial
proceedings or other governmental activities designed
to safeguard the legal rights of individuals (14th
Amendment)
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Types of Due Process
Due Process (continued)
– Substantive due process – the government cannot make
laws that apply to situations in which the government has
no business interfering, such as privacy, marriage, or travel
– Procedural due process – the government must use fair
procedures in fulfilling its responsibilities. Procedures used
by the government must be reasonable and consistent.
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Due Process Rights
During Trial and Sentencing
Writ of Habeas Corpus (Article I, section 9 of the
Constitution)
– A directive from a court requiring the government
to justify the imprisonment of a citizen
– The government has the burden of proof to justify
the arrest and detention in a crime
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Due Process Rights
During Trial and Sentencing (continued)
Writ of Habeas Corpus (continued)
– Individuals convicted, even though they profess
their innocence or that they had a tainted trial, can
request the habeas corpus privilege and may
demand that the government justify their
confinement
– A review of court records and evidence may be
conducted in order to determine if a violation has
occurred
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Due Process Rights
During Trial and Sentencing (continued)
Trial by Jury (Article III and the Sixth
Amendment)
– Persons charged with a crime have the right to
allow citizens to determine their guilt or innocence
– Federal cases must have an indictment from a
Grand Jury in order to pursue a criminal trial
– The jury protects persons charged with a crime
from corruption within the system
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Due Process Rights
During Trial and Sentencing (continued)
Trial by Jury (continued)
– Persons charged with a crime can waive their right to a trial
by jury
• The request must be in writing
• The request must be in open court
• If the death penalty is not sought
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Due Process Rights
During Trial and Sentencing (continued)
Trial by Jury (continued)
– Blanton v. Las Vegas (1989) ruled that only
those crimes considered as “serious crimes”
justified a jury. Crimes that carry a penalty of
$500 or more, or six months in jail are
considered “serious”
– A Grand Jury is a panel of 12 jurors that
decide whether or not there is enough
evidence to go to trial
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Due Process Rights
During Trial and Sentencing (continued)
Self-Incrimination (5th Amendment)
– A person does not have to give testimony if he
or she has a legitimate concern that the
testimony will contribute to his or her
conviction of the crime
– Miranda v. Arizona states that persons
arrested must be “read their rights” prior to
interrogation about a particular crime
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Due Process Rights
During Trial and Sentencing (continued)
Double Jeopardy (5th Amendment)
– “No person shall be subject for the same
offense to be twice put in jeopardy”
– Exceptions to Double jeopardy
• The defendant challenges the conviction on appeal
and a new trial is granted
• The defendant can be held liable in both criminal
and civil courts
• The defendant can be tried at both the state and
federal levels
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Due Process Rights
During Trial and Sentencing (continued)
• Speedy Trial (Sixth Amendment) – the trial must be
held as soon as possible; a person cannot be held for
long periods without a trial
• Confrontation and compulsion of witnesses (Sixth
Amendment)
– Those accused of a crime have the right to confront those
witnesses that will testify against them
– Those accused of a crime have the right to compel
witnesses to testify on their behalf
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Due Process Rights
During Trial and Sentencing (continued)
• Informed of Nature and Cause of Accusation (Sixth
Amendment) – the accused has a right to know what
they are charged with
• Public Trial (Sixth Amendment) – the trial must be
open to the public and a public record must be
maintained
• Appointment of Counsel (Sixth Amendment) – those
accused of a felony crime will be appointed an
attorney if they cannot afford one
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Due Process Rights
During Trial and Sentencing (continued)
Excessive Bail or Fines, and Cruel and
Unusual Punishment (Eighth
Amendment)
– Penalties can be fines or incarceration,
but not excessively painful or
physically harmful
– Cruel and Unusual punishment has
been expanded to include unsanitary
and inhumane conditions of
confinement
– Punishment for the crime must be
proportionate
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Due Process Rights
During Trial and Sentencing (continued)
Excessive Bail or Fines, and Cruel
and Unusual Punishment (continued)
– Limits judges, congress, and
legislatures from assessing excessive
fines and punishment
– The right to bail allows suspects
freedom while they are preparing
their case
– Bail keeps the accused from staying
in jail prior to a determination of guilt
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Sentencing
• Courts must follow guidelines established
through statutes and legislation when imposing
a sentence
• The discretion of a judge is limited by due
process rights. Due process is denied if a judge
gives a longer sentence in a second trial than
was given in the original trial
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Resources
• Civic Library of the Missouri Bar
http://members.mobar.org/civics/DueProcess5th.htm
• California State University
http://faculty.ncwc.edu/mstevens/410/410lect06.htm
• U.S. Constitution, Bill of Rights
• Do an Internet search for: this nation bill of rights accused
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