Definition of the Week: Due Process

Rohom Khonsari November 16, 2014

As American citizens, we have the right to life, liberty, property and the pursuit of happiness. These rights cannot be taken away from us by the government or any other entity without due process. This is a fundamental principle on which our country was founded. It is important to understand what the due process is and how it protects your rights.

Due Process and the Constitution

The Fifth Amendment of the United States constitution contains the due process clause. The amendment states that one shall not “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.”

This ensures the right to due process for all Americans.

What Exactly is Due Process?

In its simplest terms, due process is a way of ensuring the government is acting fairly before they potentially take away your rights. For example, the government cannot throw you in jail if they simply believe you have committed a crime. Before they can take away a person’s freedom, they must go through the criminal due processes to determine if the accused is innocent or guilty.

Likewise, if the government wanted a piece of property you owned in order to build a new highway, they could not just take it from you. The government would have to follow due process and potentially pay you for the land.

Criminal Due Process

When an individual is arrested, due process usually follows these steps:

1.  Investigation. The police gather evidence to identify a suspect.
2.  Arrest. Once the police have gathered enough evidence, they arrest their suspect.
3.  Prosecution/Indictment. The district attorney will decide whether or not to charge a person with a crime. Either a grand jury or filing of information by a prosecutor must then indict the accused.
4.  Arraignment. During the arraignment, the defendant will enter a plea of either guilty or not guilty. This is also when the judge will set bail.
5.  Trial. If the defendant pleads not guilty or no contest, then their case will go to trial. There, a jury of their peers must unanimously find the defendant guilty beyond a reasonable doubt.
6.  Sentencing. If a defendant is found guilty, the judge will sentence him/her. This is the part of the due process where a person’s rights may finally be taken away. The judge may do this through fines, jail or prison time or probation.

This is only a glimpse of the complex due process of a criminal case. There are many variations and nuances of the criminal due process. One of the most important rights that all accused parties have is the right to legal representation.

If you or someone you know is facing criminal charges, do not risk going in alone. Call the Khonsari Law Group attorneys. We are experienced at handling all kinds of criminal cases, and will fight fervently for your case. Do not gamble with your freedom and contact KLG today!