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The Importance of Due Process Rights

The government of a country is a very powerful institution, affecting the lives of persons within its borders in the most intimate ways. Governments regulate trade, conduct war with other countries, provide essential services, and most important, restrains personal behavior. Left to itself, governments can and have killed, tortured, imprisoned, and enslaved their people. Governments have exercised unjust control over such matters as speech, religion, and association. The recognition of human rights, often expressed in a legally binding bill of rights, is a reaction against such tyrannies meant to limit the power of the government.

However, few of the commonly recognized human rights are absolute. Governments can curtail or abrogate even the most basic Lockean formulation of the rights to life, liberty, and property. For example, traffic laws regulate and sometimes restrict freedom of movement. Other rights may be voluntarily forfeited to fulfill contractual obligations; for example, by leasing one's property, a person usually gives up certain rights to its use. Finally, some rights may be forfeited involuntarily. Other than taxation, the most common reason for involuntarily depriving a person of rights to which they are otherwise entitled is through conviction of criminal offenses. Since the deprivation of other rights is at stake, due process rights assume great significance; they may very well be among the truly inalienable rights.

Broadly speaking, due process rights are the claims a criminal defendant possesses when accused by the government of an illegal act. The government must respect these rights before, during, and after a criminal trial. Violating of any of the due process rights will normally void a conviction. In this sense, due process rights cannot be involuntarily forfeited. One's right to be free from arbitrary arrests, detentions, and exiles is the central concern of due process rights. An array of other due process rights supports and implements this central right. A key component of the due process rights is the right to a fair trial.

In turn, other rights also support the right to a fair trial. That is, these rights are necessary to ensure a defendant's trial really is fair. We can easily see this idea in the common pairing of a "fair and public trial" clause in many bills of rights. A public trial is one way of ensuring that it will be fair because an outcry will surely result if the hearing is not just. However, while the right to a fair trial seems absolute, the right to a public trial may be abrogated in certain circumstances.1 Nor does the right to a public trial necessarily mean the proceedings need be open to anyone who walks in from the street; an accurate and publicly accessible transcript of the proceedings would likely fulfill the public trial requirement.

Fair trials consist of three key components. The first is a publicly promulgated criminal code. People often base decisions on a course of action by weighing the consequences of their choices, including its legality. To do this, a person needs the ability to decide whether their action is legal. Otherwise, we must deem their prosecution for the act arbitrary. A prohibition against retroactive (ex post facto) criminal laws guarantees people know the laws before the government prosecutes them for a given action. Requiring a strict construction of the criminal code also insures a fair trial by guaranteeing the government cannot prosecute a person for unusual interpretations of the law. A void for vagueness doctrine serves the same purpose. Additionally, if the government publicly promulgates the laws, citizens can make judgments about the legitimacy of a criminal statute, allowing them to petition for changing or repealing unjust codes.

Another key component of a fair trial is that people also know the trial procedures in advance. A person cannot fairly defend herself against the government unless she knows the process which it will impose upon her. The trial procedure will govern what evidence is allowable, the justifications and excuses that defendants may offer, and the standard of proof. The government need not provide only one procedure for criminal trials. For example, a military court-martial procedure is very different from a civilian criminal court, and juvenile cases also have different procedures. However a fair trial process still demands that the rules used to decide which procedure the government will apply are also known.

The final key component of a fair trial is that a duly constituted legislative body has passed the criminal code. Arguably, a legislative body should also pass the basic court procedures as well, but this is not as important. That is, some separation of powers between the legislative and judicial branches is necessary, even if the same source has selected both bodies. If the government effectively allows a court to pass laws on the bench, then a person cannot fairly know in advance whether his action is legal. His conviction becomes completely arbitrary and at the whim of the government. Similarly, if the court arbitrarily imposes new rules for each trial, the defendant cannot expect her trial will be fair. Consequently, the legislative body should also determine the basic trial procedures, though the courts may necessarily have to figure out how to apply the general rules specifically.

Even if the key components are in place, the government still possesses the sheer power against which a typical defendant is almost helpless. Compared to the average person, the government can expend overwhelming resources that will almost certainly result in a conviction. Other rights possessed by a defendant are also essential to balance the awesome power of the government.

Most important, a defendant needs to know the crime which the government has accused her. How it informs the defendant of the accusation is less important; a grand jury is not strictly necessary to ensure a fair trial. Closely related to this right is the right to confront the witnesses against her. Both rights are necessary. A defendant cannot fairly defend herself unless she knows the nature of the accusation and has a chance to rebut the evidence against her. Additionally, keeping the charges and the state's witnesses secret have the same effect as not publicly publishing the criminal code; a person could never be certain whether her actions are legal. Therefore, we can never acknowledge secret crimes or secret evidence as just. Likewise, the right to be free from compelled self incrimination is also essential. Whatever the standard of proof, if we allow the government to compel a confession from a defendant, tyranny would surely follow.2 All three of these rights work together to prevent the government using the sheer weight of its power against its citizens.

As a balancing measure against the power of the government, we cannot underestimate the right to call witnesses in one's favor and compel their testimony. With the resources at its disposal, a government can compel all the testimony it wants to secure a conviction. A defendant may have recourse to witnesses of his own, but without the power to compel their testimony, he is at a decided disadvantage. A fair trial demands a fair chance for the defense to have exculpatory evidence heard.

Given a government's resources, trying a person repeatedly until it secures a conviction is not a far-fetched idea. The government can effectively wear down an individual's resources even if it never secures a conviction. To prevent such an occurrence, protection against double jeopardy is necessary. Furthermore, the protection must be substantial enough to protect against being accused of essentially the same crime, even if the exact code used against the defendant is different. Giving the government only one chance to convict means it must choose its cases carefully and marshal the best case it can before it prosecutes a person. Though arguably the government still has a resource advantage, protection against double jeopardy helps even the balance.

Ideally, other rights help safeguard a fair trial and should be respected, though they may not be strictly necessary. I have already noted that a public trial falls into this category. The presumption of innocence is another example. Presuming the innocence of a defendant ensures that the government must prove its case before depriving the person of his other rights. However, I think that the governing standard for a fair trial is the standard of proof. If the standard of proof is low enough, then a defendant will still have a fair chance while facing criminal charges. If a defendant needs only to raise a reasonable doubt or show a preponderance of the evidence in favor of her innocence, then I think we can still perceive her trial as fair. Nevertheless, forcing the government to prove its case is still an important safeguard when a person's security and liberty rights are at stake.

The right to a trial by an impartial jury has its own advantages and disadvantages in respect to fair trials. Accordingly, defendants in the United States can waive this right. Their sense of justice often guides juries more than strict conformity to the requirements of the law. This fact makes jury nullification is possible. However, they might also convict a defendant because of their sense he is guilty of something, if not the crime being considered. In complicated cases involving complex issues of science, economics, or law, a randomly chosen jury may not be up to the task of sorting through the issues properly. Nevertheless, handing the decision to a jury composed of citizens takes the decision out of the direct hand of the government. This factor is an important safeguard against the arbitrary deprivation of the defendant's other rights. A trial by jury also forces the government to prove its case, even if it presumes the defendant guilty. Trials by jury are more likely to be fair, but they are not essential to guarantee just decisions.

A defendant's right to counsel only acquires bearing on a fair trial when the legal system has become sufficiently complex. In simple societies without complicated legal systems, a defendant could have a fair trial without the assistance of counsel. Thus, this right in itself is unessential. However, this right takes on greater importance as the society's legal framework grows. In sufficiently complicated societies, denying the right to counsel will make the trial less equitable.

Finally, the right to a trial at the place where the crime has been committed is one of uncertain value. In cases where the crime or the defendant has attracted a great deal of publicity, impaneling an impartial jury is much more difficult. Hence, defendants may sometimes ask for and receive a change of the venue. A defendant might be more likely to receive a fair trial if it is in a place removed from the crime. If the government respects the other essentials, the venue of the trial has no bearing on whether the trial will be fair.

All of the due process rights work together to protect the individual from unreasonable government persecution. The right to a fair trial is the cornerstone of the due process rights. Other due process rights exist to ensure that a fair trial takes place before the government can deprive the accused of other rights. Taken together, most of the due process rights are so interrelated that one cannot imagine a fair trial without them. Even where a given right is not strictly necessary to ensure a fair trial, they exist for the same reason: forcing the government to prove its case. Without due process rights, all other human rights are in dire jeopardy.


1For example, juvenile criminal proceedings are not usually tried in public courts, and broadcast media are sometimes excluded from a criminal proceeding. In the latter case, the exclusion is meant to further protect the right to a fair trial.

2The right to be free from unreasonable searches and seizures follows from the basic right to remain silent. Again, the main concern is that the government is restrained from using its greater power in order to obtain a conviction. Without having to obtain a proper warrant, the government effectively compels a person to incriminate himself.


legalese on July 03, 2011:

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I agree completely. Thanks for the well written and thought provoking hub.

Timothy Griffy (author) from Phoenix, AZ on July 02, 2011:

I once heard that a Supreme Court justice (Scalia?) said that due process isn't about justice, truth, or fairness. It's about making sure the government followed the proper procedures before depriving a person of life, liberty, and/or property. I think we are all aware of cases where justice certainly wasn't served, the whole truth didn't come out, or the individual wasn't treated fairly. Affording due process rights to individuals helps even the odds--maybe--but in most cases, the government still holds the most power.

legalese on July 02, 2011:

Whether the criminal justice system labels an acquittal as a finding of "not guilty" or of "innocent" is really just semantics. Issues Veritas makes an interesting point, however, about the consequences of an innocent person's arrest. There is a social stigma that attaches to the arrested person and in the eyes of many the question of actual guilt or innocence is irrelevant; a criminal charge alone is justification for labeling the defendant as guilty.

Since due process in the criminal area is only procedural in nature, we point to the procedural protections afforded to a given defendant and say that the system treated that person fairly. Unfortunately, we do not think of due process in a substantive sense. That is to say we don't analyze due process in terms of whether a given defendant was actually treated fairly, we only speak of procedures that we feel will promote fairness. If we were more concerned about fairness, law enforcement officials would not be so eager to make an arrest prior to digesting all of the relevant facts, prosecutors would not be so eager to bring charges prior while overlooking possible police misconduct or problematic evidentiary issues.

issues veritas on March 02, 2009:

The Constitution and the rights protected by it are a moving target because of Supreme Court decisions and interpretations of the legislature and the executive branches of the government.

If there is no real presumption of innocence, then you have no constitution protection from misuse of probable cause. Arrests then become immediate convictions. An arrest is only an opinion and without a conviction it is still only an opinion. This is equivalent to defamation. The damage is done to an innocent person just by being arrested. A defamatory cause of action doesn't remove the stigma of the defamation, it just compensates the defamed person.

If you are really innocent, then you are sinless.

Timothy Griffy (author) from Phoenix, AZ on March 02, 2009:

Part of the point of due process is that the laws and rules are laid out. "Probable cause" may be ambiguous, but the Fourth Amendment does lay out one of those rules. But also note that if the warrant was unproperly issued, then the evidence gathered under the warrant is normally thrown out.

As I mentioned, the presumption of innocence is not strictly necessary. Although I haven't done any research, I would guess the language of guilty/not guilty as opposed to guilty/innocent is a leftover from a Calvinistic point of view. You are not guilty, i.e., of this particular accusation. But that doesn't mean you are innocent, especially if it implies you are sinless.

issues veritas on March 02, 2009:

A good compendium of rights and government limits.

The government can legislate different interpretations of your rights. They can do it with any of the branches of government, legislative, judiciary or executive.

The 4th Amendment for example, protects people from unreasonable search and seizure but it is only protected by an ambiguous term of probable cause. What constitute probable cause is not objectively defined.

The presumption of innocence doesn't really exists.

It is did exist, then if a person was found not guilty, it should mean innocent.

If you went into the trial, presumed innocent and you did not get a verdict of guilty, then you should still be innocent.

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