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Due Process

Due Process

“Due process” is a legal concept that requires fair and equal treatment for all people, especially criminal defendants. Because due process is embedded in the US federal constitution, it applies in every state, including Arizona. The Fifth, Sixth, and Fourteenth Amendments describe various aspects of due process. This principle is an integral part of Arizona criminal procedure.

Procedural Due Process vs. Substantive Due Process

Due process can be divided into two distinct forms—procedural due process and substantive due process.

Procedural Due Process

The principle of procedural due process requires the government to provide the following when seeking to deprive someone of life, liberty, or property (as in a criminal trial):

  • Notice of the proceedings,
  • A hearing (an “opportunity to be heard”),
  • A neutral decision-maker to decide any dispute.

Failure to provide any of these requirements in a criminal trial might constitute grounds for a mistrial. Most rights that criminal defendants enjoy are substantive due process rights, not substantive due process rights.

Substantive Due Process

Substantive due process allows courts to protect certain rights not specifically listed in the US Constitution, such as:

  • The right to use contraception,
  • The right to marry someone of a different race, and
  • The right to marry someone of the same sex.

Until recently, the right to seek an abortion was listed among substantive due process rights.

The Right To Remain Silent

We’ve all heard it on TV— ”You have the right to remain silent…” This means that you don’t have to talk to the police. Even in court, where the prosecution can compel you to answer questions, you have the right to refuse to answer a question if the answer would incriminate you. This is what “Pleading the Fifth” means.

The Right to an Attorney

If the charge against you carries a possible jail or prison sentence, you have the right to an attorney. If the court decides you can’t afford an attorney, it will appoint a public defender to represent you. You have the right to reject this representation and hire your own attorney or represent yourself. Representing yourself is a terrible idea, by the way.

The Right to a Speedy Public Trial

Arizona cannot throw you in jail and leave you there for ten years waiting for your trial. It also cannot hold your trial in secret. With certain narrow exceptions, your trial must be open to the public.

The Right To Face Your Accuser

Facing your accuser means cross-examining your accuser in court. Normally your lawyer will do this. Arizona’s rape shield law limits questioning about the alleged rape victim’s reputation for chastity.

The Warrant and Probable Cause Requirement

Probable cause is a reasonable belief that a crime has been committed or that evidence of a crime is located at a particular place The general rule is that the police need a warrant to arrest you, search your home, or search your car. They need probable cause to obtain a warrant from a magistrate.

However, the law carves out many exceptions to the warrant requirement (“hot pursuit,” for example). Even if an exception applies, which is most of the time, the police need probable cause. The probable cause rule protects you against arbitrary search and seizure.

The Exclusionary Rule

The exclusionary rule allows you to exclude evidence that the government seized illegally. Suppose, for example, that the police searched your home without a warrant and probable cause.

You could use the exclusionary rule to have the judge throw out the evidence they found, no matter how damaging it is. If this leaves the prosecution with insufficient evidence to convict you, they will probably abandon your case, and you will walk free.

Double Jeopardy

The double jeopardy prohibition prevents the state from trying you twice for the same offense. Without this, the state could keep trying you repeatedly until it found a jury willing to convict you. In the 1990s, the infamous Rodney King case weakened the double jeopardy rule by allowing double prosecutions – one at the state level and one at the federal level.

Trial by Jury

You have the right to trial by a jury of your peers. The alternative, if you prefer, is a bench trial, where the judge makes the decision. The choice is yours, however, not the prosecutor’s.

Proof of Guilt Beyond a Reasonable Doubt

In a criminal trial, the prosecutor must prove you guilty beyond a reasonable doubt. This standard is very different and much harder to meet than the “preponderance of evidence” standard that applies to civil lawsuits.

The Right To Call Witnesses and Present Evidence

You have the right to participate in your own trial. You can locate, subpoena, and question your own witnesses and cross-examine the prosecution’s witnesses. You can also present admissible physical evidence or call an expert witness to testify in your favor.

A Seasoned Phoenix Criminal Defense Lawyer Is a Necessity If You Face Criminal Charges

A criminal trial is serious business, and the rules of evidence and procedure are complex and confusing. You definitely need legal assistance, even if you are innocent. Don’t try to represent yourself or hire a lawyer who is not well-versed in criminal law. You have little room for error when your future is at stake. Contact the Orent Law Offices, PLC, in Phoenix, at (480) 656-7301 to schedule a meeting with Craig Orent, We would be more than happy to provide you with the information you need.

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11811 N. Tatum Blvd. STE 3031

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