Due Process

You might hear the term “due process” used often by lawyers and others in the legal profession. Ultimately, “due process” is a bundle of rights that individuals enjoy. Due process rights restrict the ability of the government to take certain actions against you, and they require the government to use fair processes whenever it does (as in a criminal prosecution, for example).

Ultimately, there are two kinds of due process: procedural and substantive:

  • Procedural due process is a legal concept that requires the government to adhere to fair procedures before depriving a person of life, liberty, or property. 
  • Substantive due process is the doctrine that certain rights are so fundamental that the government must have a compelling reason to regulate them, even if the procedures utilized are fair otherwise.  

Lawyers often invoke due process in favor of a defendant during criminal cases. Due process applies to both federal and state prosecutions.

The Due Process Rights of Criminal Defendants

Following are brief descriptions of some of the most basic rights enjoyed by criminal defendants. They are not the only ones.

The Due Process Rights of Criminal Defendants

The Right To Remain Silent 

You’ve probably heard it before: “You have the right to remain silent. Anything you say can and will be used against you in a court of law…” You also have the right to refuse to answer any question, even under oath, if the answer would incriminate you.

The Right to an Attorney

The right to an attorney grants you the right to assistance from a lawyer even if you cannot afford to pay one. This right only applies if a jail or prison sentence is a possible outcome of your prosecution.

The Right to a Speedy Public Trial

This right guarantees you a trial without undue delay, preventing prolonged pre-trial detention.

The Right To Notice of the Nature and Cause of the Accusation Against You 

This principle requires you to be clearly informed of the charges against you to prepare a defense.

The Right To Confront Witnesses 

The right to confront witnesses allows you to cross-examine witnesses against you, which is crucial for a fair trial. Ohio’s rape shield law does limit the extent to which a defendant can confront someone who accuses them of rape.

The Right To Be Presumed Innocent Until the State Proves You Guilty

The prosecution must prove your guilt beyond a reasonable doubt. The same standard does not apply to civil lawsuits.

The Right Against Double Jeopardy 

With certain exceptions, the right against double jeopardy protects you from being tried twice for the same offense.

The Warrant and Probable Cause Requirement 

Generally, the police cannot search your home or your car without a warrant or “probable cause” (a good reason). They also need a warrant or probable cause to arrest you.

The Exclusionary Rule

The exclusionary rule is controversial because it excludes evidence that the police or the government seized illegally (without a warrant or probable cause, for example). A defendant could literally be caught with a bloody knife and win an acquittal if the police illegally seized the knife.

Trial by Jury 

You have the right to demand a jury trial for just about any criminal charge. It’s not necessarily a good idea, however, because a jury might be biased against you. One alternative, if you prefer, is a bench trial, where the judge makes the decision. The choice is yours to make, however, not the prosecutor’s.

Proof of Guilt Beyond a Reasonable Doubt 

You have the right to demand that the prosecution meet the highest of all standards of proof: “guilty beyond a reasonable doubt.” It’s a lot easier to prove someone liable in a civil lawsuit than guilty of a crime for this reason.

The Right to Privacy

Privacy concerns give you the right to engage in certain activities. The right to privacy guarantees you the right to activities, such as contraception, that the Constitution does not specifically mention. The right to marry is an example, as is the right to express your sexual orientation.

The Right To Refuse Medical Treatment

An adult has the right to refuse medical treatment, such as for religious reasons. An adult, even a parent, cannot necessarily refuse medical treatment on behalf of their child.

Due Process Violations as a Bargaining Chip During Plea Bargaining

In a plea bargain, you agree to plead guilty to a lesser offense in exchange for more lenient treatment. Not everyone agrees to a plea bargain; many defendants seek outright acquittal. 

In some cases, however, a plea bargain can shave years off of a prison sentence. If you can point to due process violations in your case, you might have leverage to get a favorable plea bargain or even an acquittal.

A Dayton Criminal Defense Lawyer Can Help if Your Due Process Rights Are in Danger

Don’t play games with your freedom. If you are facing a criminal prosecution, a criminal defense lawyer at Suhre & Associates DUI and Criminal Defense Lawyers Dayton, might be able to win you an acquittal or at least a favorable plea bargain. Hire an experienced Dayton criminal defense attorney as soon as you can, schedule a consultation with us, or give us a call at (937) 531-0435.