Due process of law

Question 1

What does due process of law basically speaking?

Answer 1

On a basic level, due process is having a fair trial

Question 2

What does due process refer to?

Answer 2

Due process can refer to any type of legal action, but we are mostly concerned with criminal procedure, mainly because it is always the government that brings criminal charges

Question 3

What amendments are we concerned with here?

Answer 3

Here, we are concerned with the 5th and 6th amendments.

Question 4

Why were the limitations in the BoR limited as first?

Answer 4

Initially, the limitations set out on the government in the BoR applied only to the federal government, and so the state governments could violate them as much as they wanted

Question 5

How did the 14th amendment change this and why was this significant

Answer 5

This changes with the 14th amendment, which allowed the courts to incorporate their rights against the states. This is especially important with criminal procedural rights and liberties, because most criminal cases are brought by the state governments

Question 6

What does the 14th amendment say to reinforce this idea?

Answer 6

The part of the 14th amendment that says this states that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of US citizens; nor shall any state deprive any person of life, liberty or property without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Question 7

What are the two main concepts of jurisprudence

Answer 7

• Substantive due process
• Procedural due process

Question 8

Explain substantive due process

Answer 8

The first is substantive due process, which is a blanket ban on government infringing upon fundamental liberties. This is kind of vague. The courts generally don’t like to uphold claims based on substantive due process because they’d have to define what it actually means

Question 9

Explain procedural due process

Answer 9

The first is substantive due process, which is a blanket ban on government infringing upon fundamental liberties. This is kind of vague. The courts generally don’t like to uphold claims based on substantive due process because they’d have to define what it actually means

Question 10

What is substantive due process

Answer 10

In procedural due process, the court looks at whether the government has acted properly in applying its power. Court decisions established procedural limitations on law enforcement and adjudication. If the government followed these procedural rules, then the courts will generally say that they didn’t violate your due process rights

Question 11

What is the most important amendment when considering due process

Answer 11

The 5th amendment is most important when it comes to the idea of due process. It says that ‘no person shall be held to answer for a capital crime, or otherwise infamous, crime, unless on a presentment and indictment of a grand jury, except in cases arriving in the land or naval forces, or in the militia, when in times of actual service in time of war or public danger(1). Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb(2); nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation(4)

Question 12

What does the 1st clause state

Answer 12

The 1st clause states that if you are charged with a crime, you are entitled to a grand jury that must look at the evidence and decide that there is enough evidence to bring you to trial. If the grand jury thinks that there is enough evidence, they will issue an indictment, which means that unless you make a plea deal, you will have a trial, which almost never happens because people usually make plea deals. The second part of the clause states that parts of the military will be tried by military tribunals instead, which becomes especially important when discussing how to try terrorists

Question 14

What does the 3rd clause state?

Answer 14

The next clause, which states that you cannot be compelled to be a witness against yourself, is the most important in terms of how we think about due process. This is the protection against incrimination, and it is what we mean when we say that someone ‘pleads the 5th

Question 15

What does the 4th clause state?

Answer 15

The final clause is called the just compensation clause. It means that the state are allowed to takeover your property for a public project, but they must pay you for it

Question 16

What does the 5th amendment help prevent?

Answer 16

The 5th amendment goes a long way to prevent the government from using its power to arbitrarily imprison citizens

Question 17

How do we know that this was an important issue for the FF?

Answer 17

The FF were so keen to prevent this that they dedicated the 5th and 6th amendments to this, and also the 7th, as this guarantees the right to a trial by a jury

Question 18

How is the 6th amendment different from the 5th in what it states?

Answer 18

The 5th amendment provides more general procedural protections, but the 6th is more specific: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where the crime was committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation. To be confronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favour, and have the right of assistance of the counsel for his defence’

Question 19

What does the 6th amendment do?

Answer 19

This explains what a fair trial must look like. It must be speedy, which most states define in their constitutions, but usually means that you can be held for 45 days before you have a right to trial, unless you waive this right in order to prepare a stronger defence. The trial should be public because transparency is supposed to make them work better. You have the right to trial by a jury of your peers, rather than a jury of policemen or government officials. However, you can waive your right to a jury. You have the right to know what you are charged with because if you didn’t you could not put up a good defence. You must be able to cross examine the witnesses put up against you. You also have the right to an attorney, but as of the Gideon vs Wainwright case, this only applies in felony cases, because these are the ones that are likely to result in a loss of liberty or life if you lose. You need a lawyer because of how complicated the legal process is

Question 20

Explain what the 1966 Miranda v Arizona case was about

Answer 20

In 1963, Ernesto Miranda was arrested based on circumstantial evidence linking him to kidnap and rape. After 2 hours of interrogation, Miranda signed a confession to the rape charge. However, Miranda was not told about his right to legal representation or his right to remain silent and he was not told that anything during interrogation would be used against him. His lawyer said that because of this, the confession was not truly voluntary and should be voided

Question 21

What was the outcome of the case?

Answer 21

Despite this Miranda was convicted and sentenced to 20-30 years in prison. He appealed to the Arizona SC, which sided with the trial court. An appeal then went to the SC. Miranda’s conviction was then overturned in a 5-4 decision and his case went back to Arizona for retrial. He was retried without the confession as evidence and was still sentenced to 20-30 years in prisom

Question 22

Why was the case significant?

Answer 22

Established the right that a person in custody must be informed that they have the right to remain silent and that anything they say can be used against them in court and that they must be clearly informed that they have the right to consult a lawyer and have a lawyer with them during interrogations. As a result of the Miranda decision, police in the US are required to inform arrested people of their rights prior to question them. If they do not, the person’s answers will not be admissable in court

Question 23

What kind of case was this?

Answer 23

The court effectively created new policy here

Question 24

What do cases like this do?

Answer 24

Court cases like this and Gideon help define how agents of the state, in this case law enforcement and judicial officials must act so that they don’t unjustly infringe on our liberties

Question 25

Why is due process so important?

Answer 25

In the case of trials, the fundamental liberty of not being in jail, or even life, or at stake

Question 26

Why is it better to have these procedural protections than to not have them?

Answer 26

Although these procedures mean that sometimes guilty people go free because the police or courts do not follow them properly, it is better than the alternative: a government that has the power to put you in prison arbitrarily, juries biased in favour of conviction and a system where a state can bring you to trial again and again until they get a conviction. From this we can conclude that it is better to have these procedural protections than to not have them