Procedural Due


Procedural Due process of law, limits the procedures that may be used by government when interfering with life, liberty, or property. The constitution provides a number of due process rights in amendments four through eight. Due process is a very important factor in a free society. Without these restrictions on the powers of law enforcement agencies and courts, innocent people would be deprived of very important rights with no cause. The English law developed the right to a “speedy and public trial.” The Magna Carta helped establish this right and in the centuries that followed this developed to include trial by jury. A lot of the rights guaranteed to us by the constitution were adopted from the English law. Due process rights are divided into three parts, before a person is accused, during trial, and after sentencing.


Before a person is accused of a crime, in order to find evidence the police usually searches the individual’s property and or body, then what ever evidence is found the police seizes to use during trial. The police must have a warrant to search and seize anything. To obtain that warrant the police must go to a judge and she or he must sign the warrant. If a law enforcement agent is present in a room where an arrest is being made and sees something incriminating in plain view he or she may seize it to use in the court. Also an accused has the right to remain silent and to have a lawyer present during the police interrogation, if the individual cannot afford a lawyer one will be provided for him, also the accused must be informed that anything he or she say could be used against him or her during trial. The suspect must be informed of all the aforementioned rights; those are referred to as Miranda rights. While being held in custody, an accused must know the reason for being held (habeas corpus) and he or she may not be punished or tortured to answer questions (cruel and unusual punishment.)


The Constitution protects an accused person’s rights while he or she is on trial. An individual deserves a trial as soon as it is requested and may not be held in jail for a long period of time if a speedy trial is requested. A trial may not be secret, if the government wants to try you they must do so open to the public and there must be a public record of the proceedings. The jury, one is tried before must be impartial. The trial must take place in the state, district, or community the crime was committed. If it is proven the community might be prejudiced the trial may be moved to a different location. You must be informed of charges brought against you. You have the right to confront the witnesses against you and no testimonies of secret witnesses may be presented in court. You may have your own witnesses present, if they do not wish to appear at the trial, the court will force them to do so. And the most important one is the government can’t prevent you from having a lawyer to defend you. After you have been sentenced you may appeal to a higher court. The government may not try you for the same crime twice (double jeopardy).


Throughout the years many cases have reached the Supreme Court regarding Due Process of law. Cases such as Escobedo v. Illinois, Gideon v. Wainwright, Mapp v. Ohio and Powell v. Alabama are perfect examples. In Escobedo’s case the Supreme Court held that the denial of Escobedo’s right to counsel and the failure to inform him of his right to remain silent was unconstitutional. In Gideon’s case the Court ruled that all states must provide an attorney in all felony and capital cases for people who cannot afford one themselves. In Mapp’s case, it was decided that Mapp’s fourth amendment right to be secure from search and seizure was violated. In Powell’s case, the Supreme Court determined “that because the defendants were ignorant, illiterate, and young; surrounded by public hostility; under close surveillance by the military and in deadly peril of their lives; the failure of the trial court to give them reasonable time and opportunity to secure counsel