Justice 1 Essay

Introduction

Concept of Due Process and Its Protection in Pre-Trial and Trial Stages of Criminal Procedure
Hence, due process may be conceptualized as a legal procedure which courts and other authorities are obliged to comply with to ensure a “fundamental fairness” to a defendant (Del Carmen, 2014; JUSTIA US Law, n.d.). Moreover, due process embodies “substantive” and “procedural” due process. The latter type pertains to both civil and criminal proceedings which virtually differ dramatically, given the rights granted to defendants in both proceedings and their actual application (Del Carmen, 2014).
Extending the subject matter regarding the difference between the application of due process in criminal and civil proceedings, it is stated that United States courts have construed and elaborated a more serious, powerful, and rigid attitude toward a due process in a civil procedure. Civil due process turns out to be more consistent and accurate in the course of its application, in comparison to a criminal due process. In particular, when considering a civil case, a judge first decides whether any of the three interests mentioned above is expected to be subjected. If such involvement is certain, a judge then must select a proper type and form of the hearing (Kuckes, 2006).
In contrast to civil proceedings, defendants in criminal cases do not enjoy similar rights in various preliminary stages conducted in the course of prosecution and investigations. This also happens even in instances where the interests involved appear to be identical. The so-called “pretrial stage” in criminal proceedings may be reasonably viewed as the most challenging and problematic in terms of procedural due process. Reflecting on these assumptions, real-world orders and actions of courts in pre-trial stages frequently lead to foreclosure and seizure of property, movement and travel restrictions, termination of employment, or cancellation of other entitlements previously held by a defendant. Those deprivations and restrictions undoubtedly heavily affect the constitutional interests – life, liberty, and property protected by the Fifth and Fourteenth Amendments (Kuckes, 2006).
The traditional pre-trial proceedings which may require some forms of hearings in the presence of defendant and his attorney embrace arraignment, bail, and preliminary hearing. However, such hearings cannot be said to completely satisfy the criminal procedural requirements of due process: they are not held mandatorily even in the course of federal investigations, needless to say of states. In addition, their purpose is not to determine the legitimacy, appropriateness and admissibility of evidence submitted by the government. Nevertheless, another situation unfolds with the trial stage of proceedings where a defendant is granted such rights as the right to a jury trial, the right to an impartial judge, the right to be deemed innocent till the opposite has been proved “beyond a reasonable doubt”, and the right to access the evidence in the government’s possession (Kuckes, 2006).

Ethical Issues of Criminal Due Process and Examples of Due Process Violations

The Annual Conference of the American Bar Association Section of Litigation held in the first half of April, 2014, addressed the instances of ethical violations triggering criminal due process breaches. The participants of the event managed to analyze the case of Ed Johnson who certainly had experienced substantial grievances on the part of presiding judge, his counsel and members of jury. The final outline of the Conference considered such issues as incompetent and impartial conduct of the judge, appointment of inappropriate defense attorneys, continuous violations of procedural due process in the courtroom, and unacceptable behavior of the jury members which was not restrained by the judge (Curriden, 2014).
In particular, the first grave violation by the judge was his appointment of defense attorneys who had never represented clients in criminal cases, needless to mention that Ed Johnson was facing a capital punishment. It is at least incompetent and unprofessional to appoint similar counsel for the representation of Johnson’s rights. Second, the judge warned the defense attorneys that he would not accept any motions relating to the process continuation or change of venue. Third, the judge informed the participants in the case that he intended to hear that case within 11 days (obviously, practicing lawyers agree that this timeframe is not enough for a defense team to gather the evidence and prepare arguments in favor of a defendant). Forth, hearings in the case were conducted in a closed courtroom with only white individuals as members of the jury. And fifth, after Johnson had been sentenced to death, his defense attorneys persuaded him not to submit an appellate claim (Curriden, 2014).

Conclusion

Thus, it has been determined that a criminal due process, especially a pre-trial stage of investigations, is substantially different from a civil due process and this difference is not in favor of criminal defendants. Speaking in other terms, scholars and practitioners reasonably declare a procedural gap in a criminal due process which needs a significant improvement. Obviously, many aspects of criminal proceedings have not been regulated by the Constitution and such an extensive judicial discretion on what should be regarded as a due process in each case undermines its essence and main purposes.

References

“Know Your Rights.” (2012). A guide to the United States Constitution. Retrieved from http://www.justice.gov/sites/default/files/usao-ne/legacy/2012/04/27/Civil%20Rights%20Book-NE-2.pdf
Cornell University Law School. (n.d.). U.S. Constitution. Retrieved from https://www.law.cornell.edu/constitution
Curriden, M. (2014, April 9-11). Ethical issues under the rubric of due process. Retrieved from http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2014_sac/2014_sac/ethical_issues.authcheckdam.pdf
Del Carmen, V.R. (2014). Criminal procedure: law and practice. (9th ed.). Wadsworth, Cengage Learning.
JUSTIA US Law. (n.d.). Generally: the principle of fundamental fairness. Retrieved from http://law.justia.com/constitution/us/amendment-14/52-procedural-due-process-criminal.html
Kuckes, N. (2006). Civil due process, criminal due process. Yale Law & Policy Review, 25. Retrieved from http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1532&context=ylpr