Skip to main content

Some Due Process

Posted by attorney Nathan Wente

5th & 14th Amendments

We are all familiar with the phrases "beyond a reasonable doubt" and "innocent until proven guilty." These are the rights given to all individuals who find themselves, whether rightfully or wrongfully, being charged with a crime. These rights come from the 5th & 14th amendments wherein it states no person shall, " deprived of life, liberty, or property, without due process of law." This is commonly referred to as "The Due Process Clause."

"Due Process" does NOT have a specific definition but for all intents and purposes it equates to fairness. Put another way, if our Government (whether State or Federal) is going to deprive a citizen of their life, liberty, or property then that deprivation, and the procedures used for effectuating the deprivation, must be fair.

In a criminal case, where a citizen's right to life and/or liberty are clearly at stake, "Due Process" requires several things;

First, all persons are "innocent until proven guilty." This right is in place to eliminate any tendency by jurors to use the fact that a person has been CHARGED with a crime as evidence that the person in fact COMMITTED the crime. This right is critically important to "Due Process." Accepting the Government's mere accusation of a crime as substantive evidence that a person committed the crime is akin to eliminating the important right of trial by jury (to be discussed in a later email).

Here is a brief example to illustrate my point:

During jury selection a juror was asked about his ability to follow the "innocent until proven guilty" instruction. He replied, "I'd have a hard time following that instruction because the defendant is obviously sitting here because he's done something."

At my first opportunity I addressed this juror. The juror agreed that trial by jury was fundamental and important in achieving justice as it, among other things, provides an opportunity for those who are not guilty to be set free. However, the juror had no reply when I pointed out to him that if trials may serve to set not-guilty people free then this defendant, in fact, may be sitting here for "nothing" because the defendant may very well be not-guilty and he needs this jury to set him free.

We should not give up our right to trial by jury. Accepting the Government's accusation of a crime as substantive evidence the person committed a crime is, to some extent, doing just that. The jury, after reviewing all of the evidence, ultimately makes the decision whether someone violated the law - not the Government.

Second, it requires that it be the Government's burden to prove their allegation (a.k.a. burden of proof). If the Government is going to accuse a citizen of the commission of a crime we require the Government to bring forth evidence to support their accusation. This is a fundamental legal concept - where one party is asserting a fact (i.e. commission of a crime) the burden falls upon the party making the assertion to prove it. The alternative would be for the party accused to prove a negative (i.e. defendant did not commit a crime). I cannot begin to imagine the absurdity created if "accusers" could throw out accusations and it was up to the "defenders" to prove the falsity of the accusation. In my opinion it would be foolish and certainly would not comport with "Due Process."

Thus, Government is making the accusation - Government bears the burden to prove it.

Third, the standard of proof the Government is required to achieve is labeled "beyond a reasonable doubt." The standard of proof relates to the strength of the evidence tending to prove the truth of the accusation. If, after the presentation of all of the government's evidence, the jury is left with reasonable doubt regarding the truth of the accusation it is their DUTY to return a not guilty verdict. If the government, while presenting their evidence, raises questions of doubt in the mind of the jurors it is the jury's DUTY to return a not guilty verdict.

Our criminal justice system creates, and rightfully so, an uphill battle for the government to establish its criminal case. We are all familiar with the expression, "better that ten guilty persons escape than that one innocent suffer." I have a deep appreciation of this ideology and by and large our society, at least outwardly, subscribes to it. However, too few have probed that ideology a little deeper and have failed to appreciate its corollary. The corollary is that with this ideology we have a system wherein guilty people SHOULD go free. In fact, were we to take the ideology on its face, the cost of freeing one innocent that becomes entangled in our "criminal justice" is that ten guilty MUST go free. This perspective may be a little harder for people to swallow but is equally as important for them to understand and appreciate.

In the wake of high profile and exceptionally tragic crimes, such as the trial regarding Casey Anthony, it is important to remember our rights and why we have them. The circumstances of the case are tragic and terrible but we should all be encouraged that the jury, even in the face of such a terrible and compelling crime, did their duty and voted not guilty when they believed there was reasonable doubt. To return a guilty verdict, while having doubts, would undermine the integrity of the jury system. I would encourage everyone, in this case and ALL others, to support the jury's decision as they did what none of us were asked to do; vote for the Constitution even though their doing so would bring them scorn, ridicule, and unpopularity.

Author of this guide:

Was this guide helpful?