Custom «Due Process» Essay Paper
Under the constitution, it is likely to find one or more law that conflict with the other. However, this is got rid of by clauses under each law. The Fifth Amendment requires the federal government to observe the code that no person shall be dispossessed basic rights such as life, liberty, or property with exemption of due process of law. The Fourteenth Amendment, approved in 1868, depends on the due process clause to depict a legal responsibility of all countries. This measure is done to observe that all parties in any case receive fair and equal treatment in the period of case preparation and presentation.
INCORPORATION OF DUE PROCESS
The Fifth Amendment's allusion to “due process” is simply one of countless assurances of safeguarding the Bill of Rights. A lot of changes occurred in the Twentieth Century. A number of Supreme Court rulings observed that the due process clause had the basic elements of bill of rights. That was about a century later after the incorporation of the due process clause in the 19th century.
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The Equal Protection Clause of the Fourteenth Amendment prohibits any state from launching separated institution or else astute individuals against some of their society members. The bill of right lacks the clause for equal protection. Therefore, the due process clause provides the basic protection against breaching or contradicting how the bill of rights is carried out. The due process clause observes equality when carrying out necessary measures to protect the law and the citizen. Without the due process clause, it would be extremely easy to tamper with a case before presentation to the law courts. With the due process in place, it is easy to understand why the saying, one remains innocent until proven otherwise by a court of law. The term due process, as it sounds, reflects on the procedure taken to protect and respect person legal rights. This is the period before the presentation of a case in a law court. The due process is used to balance and equate the law and moreover protect persons. If due process is not followed, it leads to violation of the rule of law (Hartigan, 2003).
The adversarial system is a combination of elements that constitute the presentation of a case. This comprises of the due process observation, presentation of arguments by both parties and gathering and submission of evidenc. The final part of this system is questioning of third party entity, the witness, under provided rules to determine a witness. Through this system the neutral entity, judge or jury, remains neutral throughout the procedure of the system. When the procedure is through, it is the work of the neutral entity to determine the truth and settle the case.
The controversy behind the adversary system that lays a platform for the due process is, it accessibility. The adversary system is sometimes known to favor the wealthy people of the society by creating loopholes in the system. To make maters worse the adversary system is also known to be fast paced on resolving conflicts rather than being an investigative system that seeks the truth only. The majority, with limited resources, are mostly locked out of enjoying the benefits of the due process through the adversary system. Other loophole present in the adversarial system is the idea that even if a person admits being guilty, the prosecutor evidence has to prove that (Wasserman, 2004).
RIGHTS OF THE ACCUSED
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It may sound funny but any person accused of any crime is objected to enjoy his freedom of all rights in the bill of rights until they are proven guilty. For such a person to enjoy their rights, the due process and the adversarial system must be fair to all parties. For a person to be deemed guilty, the prosecutor must provide enough evidence to prove the person accused actually committed a crime. Above all, things, the defendant must be protected from self-incrimination. Self-incrimination can be achieved through torture or blackmail. The accused person is entitled to remain silent till they come across their defending legal counsel. If the counsel is not available, the accused has the right to be provided with adequate legal representation provided by the court. One cannot be charged under the same crime twice. When a case starts, the accused has the right to free and speedy trial at the court of law. In case, a citizen is accused of a crime, before a search is done on their premises, the police must obtain a search warrant. In case of the witnesses, the accused is free to bring their own witnesses.
PROCESS AFTER CRIME IS COMMITED
First, it is the work of the security officers to determine whether a crime has at any chance been committed. Such work is left to the security officers since they are equipped with resources to investigate and determine the extent of a crime. Investigations involve, talking to close witnesses and gathering other relevant evidence form the crime scene. Evidence collection can go a step ahead to make a case more valid by videotaping and photographing. After all that is done, the police start to determine the probable answers to the cause of the crime. All this is done through recording the statements of both parties involved in the crime (Hartigan, 2003).A follow up investigation is done to arrest the offender or seize illegal goods. After investigation are through by the law enforcement agency.
After the police agency is through with their investigation, the case is filed to the corresponding prosecuting attorney. The prosecutor reviews the case and determines which evidence is reliable and the step ahead. If the case is valid, the prosecutor determines under what offense the crime is to be filed. If the evidence is not reliable to put a tough case, the case is readmitted for further investigation or nullified.
POST ARREST PROCEDURE
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If the prosecutor feels that there is enough evidence to put a tough case, the accused is arrested. However, this is not to mean that the accused is guilty. Before one is fully tried and a sentence is issued, a lot happens. Most of The arrests are warrantless. When one is arrested, they are then transported to jail and booked. When being booked, the person details are filled in an occurrence book. The booking is extremely beneficial as it is an administrative process. Activities carried out in booking includes, accused name, contact, place of work, phone details, and next of kin information. The defendant is also photographed and their fingerprints taken. After the arrest, one is entitled to make three phone calls to inform their lawyer or their people. The person arrested, remains in jail till they are bailed or they appear in arraignment. Next is the preliminary hearing, followed by plea-bargaining.
Under any circumstance, the law is the only friend of an accused person. No person has the authority to deny a person from that only friend. All clauses in the law are meant to protect any accused citizen. The due process allows any accused person to enjoy all rights in the bill of right before being deemed guilty by a court of law. The adversarial system has all the elements to enable the due process to take the course with no contradiction of the law.
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