Due Process Due Process Chandra Walker Axia Online-UOP In this paper we will be discussing how due process operates in the criminal justice system. This paper will take an in depth look into how the due process effects the criminal justice system. But in order for anyone to understand due process in the criminal justice, you must first know the meaning of due process. The most commonly used form of sentencing is probation, meaning the suspect is set free but under supervision of a probation officer. Due Process
According to Black’s Law Dictionary: “Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law. ” Black’s Law Dictionary, 6th Edition, page 500.
Due process is a very complex subject to try to explain and define to where it is understood. In all its complexity due process just simply means that it holds the government subservient to the land of the law. Due process originated from the Magna Carta (1215), which were the Great Charter of English liberties where the nobles limited the King’s authority. The phrase “law of the land” then transformed over time to what is now known as “due process of law (Sargentich, 2009). ” The phrase the “law of the land” was part of a Massachusetts statute in 1692.
The fifth amendment of the Constitution mandates that no one is to be deprived of their life, liberty, or property by the government without due process of the law. The adversarial system is the legal system used that is followed in the US. In the adversarial system the parties involved in the case are given the following privileges: develop and present their arguments, gather and submit evidence supporting their case, call and question/cross-examine witnesses, and control the information presented according to the law and the legal process (“Adversarial system law,” 2011).
In these cases the each party involved in the case generally obtain an attorney to represent them. The trial is usually carried out in front of a group of people, an impartial person, perhaps a judge or jury. The judge or jury is usually the trier of the facts, ones responsible for deciding the verdict in the case. “[The adversary system defines a mode of dispute resolution in which the competing claims of parties are presented by legal representatives who have interest in the outcomes of dispute, to an impartial third party, with power to impose authorities.
In criminal cases, this is often called the accusatorial system] (“Adversarial system law,” 2011). ” The adversarial system is also more commonly referred to as the system of who wins or loses. Since the common ground of the adversarial system is for the judge or jury to hear the facts from both sides and decide who is telling the truth. The rights of the accused are a collection of rules and statutes that are in place to protect a person accused of civil or criminal offense (Ellis , 2003-2011). It is important or those accused of crimes to have rights that protect them. This is extremely important for legal systems who base their criminal justice system on a presumption of innocence. In this type of society the burden of proof is placed on the prosecution, which in turns places a high priority on the rights of the citizens. This allows the justice system to ensure the rights of those who have not yet been proven guilty are not infringed (Ellis , 2003-2011). The rights of the accused are as follows: 1) Right to remain silent until they can speak to legal counsel. ) Right to adequate legal representation. In the event they cannot afford one, the court must provide them with an attorney. 3) Right to know what the charges against them are and to confront witness/witnesses testifying against them. 4) Right to gather their own evidence and witnesses. 5) Right to speedy and public trial if it is their desire. 6) Right to be free of unreasonable search and seizure. The process after a crime has been committed through post arrest procedures are as follows: 1) The police collect/analyze evidence and stock. ) The police will then review any potential witnesses. 3) The police must narrow down suspect/any people of interest and request alibi’s/questioning. 4) The police will then make an arrest if enough evidence of the person they feel committed the crime. 5) Then there is an arraignment set to procure bail with the magistrate. 6) If bail is set and the suspect is able to meet bail, then they may be released, if bail isn’t met the suspect remains in jail. 7) Then a hearing may be set to confirm the trial type and the date. ) If jury is needed then jury selection will be made. 9) Once jury is selected the trial begins shortly after. After trial if the suspect is found guilty the judge sets a sentence hearing, most often at a later date. Sentencing consists of many different forms such as: confinement to jail or prison, probation, payment of fines or restitution, or a combination of the above. The criminal justice process varies from state to state, and the federal criminal justice system has its own rules, procedures, and terms to describe the tages of the proceedings. “[The defendant has the right to present witnesses and other evidence in defense of criminal charges. The defendant also has the right to “confront” or cross-examine the witnesses brought forward by the prosecution. Once the prosecutor finishes submitting the evidence, the judge “charges” the jury by giving the jurors instruction on the law. Both the prosecutor and the defense attorney then sum up their arguments to the jury, based on the facts presented and the applicable law.
The order in which these presentations happen varies from court to court](“The criminal justice,” 2011). ” The criminal justice system in the US is somewhat complex and hard to understand if an individual do not know anything about the system. The language and terms that is used in the criminal justice makes it hard enough to understand how the system works. It is always for everyone to know their rights and how to exercise them. References Adversarial system law & legal definition. (2011) Retrieved from http://definitions. uslegal. com/a/adversarial-system .
Definition of Due Process. (2011). Black’s law dictionary. Retrieved July 18, 2011, from www. blackslawdictionary. com. Ellis, Jackson. (2003-2011). What are the rights of the accused? Retrieved from http://www. wisegeek. com/what-are-the-rights-of-the-accused. htm on July 18, 2011. Sargentich, Thomas O. (2009). Due process. Retrieved from http://www. answers. com/topic/due-process. The criminal justice process. (2011). Retrieved from http://criminal. lawyers. com/Criminal-Law-Basics/The-Criminal-Justice-Process. html? page=2 on July 20, 2011.