The Concept of Due Process

Subject: Law
Pages: 5
Words: 1121
Reading time:
4 min
Study level: College

When one talks of due process or getting “due rights”, it simply implies the legal proceedings that they feel are justly entitled to them in their interaction with the law. In other words, this is what Due Process means. The Due Process is characterized by the thinking that the rights of the accused require to be deliberately protected in whatever investigation of the criminal justice. It further puts emphasis on the adversary system. The model of Due Process also emphasizes the rights of an individual who is being charged of a crime (Schmalleger, 1997). In short, the due process concept ensures the fairness and protection of individuals by the law against the powers of the state.

Basically, every cultural organization has employed some version of the Due Process concept. Though the Due Process concept vary from society to society depending on their ideals, the essential idea remains invariant, the legal proceedings conduction in a way that enforces and protects individual rights, including notice to each party and right to just hearing before an unprejudiced decision maker. Generally, the main point of the Due Process is to assure that innocent persons are not wrongly targeted or convicted. This paper aims to define adversarial system while describing the rights of the accused and the process following the commitment of a crime through the procedures of the post arrest with regard to the Due Process.

According to Schmalleger (1997), the fairness or unfairness perception with the justice process, reflect concern and the outcome as well. What is more, the due process concept is the protection of a person’s liberty, property and life; hence the government cannot deny a convicted criminal of their life before going through and completing the appellant process in accordance with the Due Process. The United States citizens possess diverse liberty interests as the Due Process restricts the government from withdrawing the liberty interest from its citizens without law Due Process. In addition, the government should take suitable legal measures prior to the attempt to take away an individual’s property (Dershowitz, 2002). This is clearly supported by the fourth amendment in the constitution of the United States which states that;

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (Kanovitz, 2010, p. 433).

The legal system of the United States is that of an Adversarial System in which the idea that an accused individual ought to be considered innocent till proven guilty, is exercised. According to this system, a judge and jury will seek to find out the truth by attentively hearing opponent attorneys who with vigor, advocate in place of their respective parties through Adversarial Procedure. The very assumption of this process is to see to it that the innocent goes free and the guilty convicted. Therefore both parties and the citizens get to see justice (Schmalleger, 1997).

In the act of an arrest, which in some cases occurs as a culmination of a lawful investigation, a suspect is advised on their Miranda rights. The rights are; the “right to remain silent” and “the right to have an attorney”. Under normal circumstances, a suspect is taken to a country prison from a police station after an arrest is made. During this time, the individual is denied access to a phone or contact with family members, though procedures may be different depending on the states (Identification, Bail, Asset Forfeiture and other pretrial procedures, 2006). In the United States, the rights of the suspect are guaranteed under the fifth amendment of the constitution once he/she has been taken to custody (Emmanuel, 2009).

If a defendant requests to consult with their attorney, an interrogatory immediately ceases or any statements made subsequently in the absence of the attorney will be declared inadmissible. However, the request of a suspect for an attorney never prevents the suspect from being compelled to take part in a LINEUP of individuals for review by victims or taking the picture of the suspect so that it can be shown to the victims in a photo array by the law enforcement (Jenkins, 2011).

While the individual is awaiting their first coming into court, a police officer usually prepares a charge against the accused. During the trial, the accused has rights which may include; the “right to counsel”, right to a jury trial, right to confront the witness in court, right to impartial and fair trial among others which are stipulated in Fifth Amendment of the constitution (Identification, Bail, Asset Forfeiture and other pretrial procedures, 2006). The Fifth Amendment typically disallows the government to compel an individual to incriminate themselves, deny an individual Due Process of law, subject an individual to multiple prosecutions or punishments for a single crime, and prosecution in federal court before a grand jury indication. “Any violation of these rights might result in vacation or reversal of a conviction upon appeal” (Kanovitz, 2010).

Following a conviction, a defendant might be allowed to stay free till sentencing. The court makes a conclusion on this issue and it is dependent upon the nature of the sentence and the perceived character of the defendant (Identification, Bail, Asset Forfeiture and other pretrial procedures, 2006). A criminal convict may thus not be allowed to stay on free while awaiting a pending sentencing. In cases where a felon convict is not satisfied with the court ruling he/she may appeal.

The federal constitution though does not insure a felony conviction right to appeal. However, each state affords a suspect the right to possess one Appellate Court, at the least so as to review for errors in the records for the trial court. After a confined defendant has exhausted all the appeals with no success, they may file a civil suit known as Writ of Habeas Corpus against the prison warden, disputing the constitutionality of the imprisonment (Emmanuel, 2009).

In conclusion, the main purpose of the criminal procedure in the modern constitution is to define law enforcement principles that guard citizens against unreasonable government intrusions in their effect about personal liberties, while at the same time facilitating the sensible law enforcement as well as the protection of the society through the punishment and prosecution of criminal conduct. Furthermore, it is important that the defendant’s constitutional laws remain intact all through the trial procedure to ascertain their protection. As a result, therefore, the Due Process plays an important function from the public’s perception since the system ought to seem fair regarding the legitimacy of the courts, the law and the legal actors.


Dershowitz, A. M. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown & Co.

Emmanuel, S. L. (2009). Criminal Procedure. Aspen Publishers Online.

Identification, Bail, Asset Forfeiture and other pretrial procedures. (2006). Web.

Jenkins, J. A. (2011). The American Courts: A Procedural Approach. Jones & Bartlett Learning.

Kanovitz, J. R. (2010). Constitutional Law. Elsevier.

Schmalleger, F. (1997). Criminal Justice Today. New Jersey: Prentice Hall.