2This is important!!!!The rights of the Accused to Due Process protect him/her form an all powerful government.
32 types of Due Process1) Procedural Due Process -- The protections provided to those accused of a crime or other offense are procedural due process.2) Substantive Due Process -- Substantive due process, on the other hand, goes beyond the process and refers to the specific rights being denied, even if the process is deemed fair. In this situation, an action is taken by the state in a process that would be considered fair, but could still be challenged on the basis that it improperly denies a right.
4Substantive Due Process EXAMPLE: Westernstate passes a law forbidding individuals from using nail clippers to cut their nails and requiring instead that only scissors be used. Because the state is seeking to regulate individuals in a way which affects their liberty, the law will be subject to Due Process review.EXAMPLE: Easternstate enacts a statute requiring all individuals who own cars manufactured prior to 1990 pay a “collector’s” tax. The tax is a deprivation of property, i.e., the money paid, and must pass Due Process review.
5Due Process Accused people are entitled to: 1) A jury trial in public. 2) Trial without undue delay.3) To be informed of their rights.4) To be informed of the charges against them.5) To confront (face) and cross examine their accuser and witnesses.6) To Compel witnesses to testify on their behalf.7) To refuse to testify against themselves.8) To be represented by an attorney.
6Right to Trial by JuryJury trials are not required for minor offenses, those punishable by less than 6 months in jail.The accused can Waive (give up) their right and request a bench trial.The Constitution does not require that juries be made of 12 people. The Supreme Court requires juries to be made of 6 people or more. Federal trials require 12 man juries who must come to unanimous decisions. State courts do not need a unanimous decision.
7Right to Trial by JuryThe jury pool is made up of 18 year old citizens who have not been convicted of a felony. Usually they are pulled from voter registration lists.Some jurors can be kept off through Peremptory Challenges. This can be used by an attorney to keep a potential juror off the panel without giving a reason. The other side can try to prove the reason is racially motivated.
8Speedy TrialThe 6th Amendment protects your right to a speedy trial. Why is this significant?Speedy is not defined.
9Right to Compulsory Process and to Confront Witnesses Subpoena- a court order requiring a witness to appear in court to testify.- Why is this is necessary for the defense?The 6th Amendment protects the defendant’s right to be in court. This right is limited. Disruptive persons can be removed for the court room and then found in contempt of court.The right to confrontation can be modified for children.
11The 5thAn accused person cannot be forced to give testimony that incriminates them.This right can be exercised in all criminal cases.The attorney cannot point out or draw attention to the fact that the accused has not testified against himself/herself.An accused person has the right to take the stand in their own defense if they wish.
12QuestioningA defense attorney can object to questions from the prosecution if inappropriate. The objection must be sustained (agreed to) by the judge.Immunity might be granted in order to get a defendant (lesser) to testify against another.Immunity means that any testimony they give that points to their guilt cannot be used to convict them later.When and how would this be used?
13Right to an AttorneyPowell v. Alabama- 9 black boys were given the death penalty. They were tried together and their attorneys did not try to defend them. The state said that only federal courts guaranteed the right to an attorney. The supreme court said any capital case or life imprisonment case should have an attorney.
14Right to an AttorneyGideon v. Wainwright- Gideon was sent to jail for robbing a pool hall of a small amount of money. He sued because he had to defend himself. The Supreme Court said that any person who might go to jail for any crime has the right to legal counsel.
15Right to an AttorneyThe public defenders office was created to provide a free and competent defense for any person accused of a crime that could lead to jail time. Public defenders are usually paid less that a private attorney and they may have a large case load.
16Criminal AppealsA case is over if the jury says “not guilty”. All accused persons are protected from Double Jeopardy. This means they cannot be tried for the same crime twice. Why? (5th Amendment)The principle of Double Jeopardy means the prosecution must be prepared thoroughly at the time of the trial.
17AppealsWhen found guilty, the defense will often ask the judge to declare a mistrial. This means there was a systemic issue, the law was applied incorrectly, or the accused due process rights were violated. This is seldom successful.
18AppealsIf the accused is found guilty they have the right to appeal the case to a higher court.The accused is now called the Petitioner or Appellant.The arguments are made before a counsel of judges and the defense must show how the law was applied unfairly or that any errors that were made led to the conviction. The counsel will review the transcripts from the case.
19AppealsNO NEW INFORMATION will be presented. In order for new information to be heard, a new trial will need to be granted.Trial courts are concerned with facts and appellate courts are concerned with issues of law.
20Habeas CorpusA defendant might request a writ of Habeas Corpus (to produce the body). This petition says the convicted person is being held illegally. Rape cases that are overturned through DNA are resolved in this way.