DUE PROCESS OF LAW
AND CRIMINAL PROCEDURE

Copyright 2005 by Barnabas D. Johnson

***

As discussed in my essay, Due Process of Law, this most beautiful phrase in the English language originated in a 1355 restatement of the 1215 Magna Carta; through centuries of jurisprudence based thereon, "the government" (first in England, then in the United States and elsewhere) was brought "under the law" ... that is, became subject to rules it could not change. This is the origin of the concept of "government under law" as distinct from merely "government by laws" as discussed in my essay, Rule of Law.

Here I focus on that crucial aspect of "due process" which relates to limits on the government in its prosecution of suspects under the criminal law. Not all countries agree on all elements of the outline offered below. Indeed, I here set forth not the law of any country but the law all should seek to approximate.

In a criminal proceeding, "due process" requires that any deprivation of life, liberty, property, or other basic rights can occur only after a fundamentally-fair proceeding. The elements of fundamental fairness are today debated within the context of a global Ecology of Mind checked and balanced by an Ecology of Values focused on human rights and attendant responsibilities.

This debate starts with the premise that procedural due process, including a fair trial, is a fundamental human right. See, for example, Article 5 of the European Convention on Human Rights (ECHR). This debate generally addresses the following essentials:

1.    Notice. The accused (or "defendant") has the right to be informed of the details of the accusation, including the law that was allegedly violated.

2.    Right to Counsel. The accused has the right to a lawyer's assistance in all proceedings, including pre-trial investigations and appeals, with a view to ensuring that the defendant will be acquitted unless properly justly convicted. This protects not only the accused but also society at large from governmental abuses, including abuses of criminal law and procedure. Power often corrupts; unchecked power usually becomes abusive; lawyers are "officers of the court" and are obligated to represent their clients vigorously. This includes checking, exposing, and defeating abusive governmental practices and procedures.

3.    Right to Exculpatory Evidence. The prosecution's highest obligation is to do justice rather than to obtain convictions. Information in the possession of the police or prosecutors which exculpates or otherwise might favor the defense must be made known to the defendant (usually by informing defense counsel) and also to the court

4.    Right to Vigorous Defense. The defendant has the right to be heard, to mount a vigorous defense, and to bring forward information tending to show that the prosecution's case is flawed, based on incorrect information, abusive prosecutorial tactics, etc. This is a right, not an obligation (see #5).

5.    Burden and Standard of Proof. In the United States and increasingly worldwide, the accused is not required to defend against accusations of criminal conduct. The prosecution has the burden of proof, and the accused must be acquitted unless the prosecutor can prove guilt beyond a reasonable doubt.

These issues provide good examples of "constitutional requirements" that are so fundamental they (arguably) "go without saying"; note that these requirements are not mentioned in the U.S. Constitution, yet have been held by the U.S. Supreme Court to be essential elements of American constitutional law. Experience teaches us that such "tacit values" are best protected when they are explicitly set forth in a constitution. That is, they should not be tacit. See, for example, Chapter Five, Article 16, of the Constitution of Jurlandia.

6.    Assistance Obtaining Witnesses. The defendant is entitled to judicial help and prosecutorial cooperation in obtaining the testimony of witnesses who (the defendant believes) can help to rebut allegations of wrongdoing.

7.    Impartial and Independent Courts. All pre-trial, trial, and post-trial proceedings should be supervised by an impartial judge (or judges). In the United States and some other countries, the defendant is entitled to a trial before an impartial judge and jury. Some countries that do not use juries have other commendable safeguards, such as "appellate trials" in which new evidence can be brought forward.

In too many countries, unfortunately, judges are mere government functionaries; they are not truly independent, and might even be (and definitely appear) subordinate to prosecutors; for example, in various "post-Soviet" countries the office of prosecutor ("the Procuracy") is established in the same constitutional chapter that establishes the judicial branch ("the Courts").

Often even court-room furniture "elevates" the prosecutor in comparison to the accused and defense counsel; judges and prosecutors might have tea together and then come into the court room together, through the same door, and take their respective elevated seats. This makes a mockery of judicial independence and impartiality.

8.    Cross Examination. A fair trial includes the right to cross-examine witnesses and to otherwise inquire into the reliability of evidence offered by the prosecutor and the defendant.

The right to cross-examine witnesses is well established in the United States and other "Common Law" countries. It is also now considered an essential element of a fair trial under the ECHR, according to the developing case law of the European Court of Human Rights. This jurisprudence is applicable not only to "Civil Law" countries within the European Union but also to countries that have joined the wider Council of Europe, including Russia.

Unfortunately, the right to cross-examine witnesses is not well developed in most countries of the world, including E.U. members. Indeed, the concept of a "trial" as understood within the Common Law tradition (and especially as depicted in American popular culture) is neither as clear nor as "validated" within the Civil Law tradition as most Americans, including American lawyers, realize.

As a comparative-law scholar, I conclude that elements of both traditions have considerable merit, and that what Europeans call "approximation of laws" harmonizing differences and adopting the best elements of all systems is desirable. But all countries should recognize the necessity of cross-examination as an essential element of law-based governance. 

9.    Appeal. A person has the right, if convicted, to appeal to a separate, higher court, and to argue that he or she was not given adequate "due process" in the lower court. Appellate judges must be empowered to issue binding instructions to lower courts regarding the requirements of law and procedure in specific cases that are returned to them following a successful appeal.

10.    Published Judicial Decisions. Parties to a dispute as well as the general public need to know what the court decided and why. The healthy and orderly development of case law, by which the "language of law" is applied to specific situations, requires that especially appellate court decisions that "give meaning" to the words and phrases of constitutions and statutes be published and easily accessible.

The "the law of the land" must be ascertainable; its words and phrases must have meaning; and such meaning is often best supplied when specific disputes as to meaning are resolved within the context of actual cases.

***

As noted, the above elements of due process apply specifically to criminal law and procedure. Due process guarantees also apply in non-criminal proceedings, but they differ from those outlined above and also differ depending upon the precise governmental conduct at issue.

The "due process of law" by which a government may take away a person's right to drive a car is different from the "due process of law" by which a government may take away a person's right to walk free rather than be imprisoned.

Likewise, imprisonment for thirty days requires (in a manner of speaking) less "due process" than imprisonment for thirty years. The phrase "due process of law" has meanings imposes governmental requirements that are context-specific. Bringing fundamental rationality and fairness to "the law of the land" provides a superb example of what we mean when we say that constitutional democracy must not be "dumbed down" (see essay, Constitutional Democracy).

Put differently, you cannot have a constitutional democracy worthy of being called that unless you have a functioning legal and judicial system that "brings alive" what "the law of the land" means: rational and fair and in these senses competent treaties, constitutions, legislation, governmental regulations, and (of key significance) judicial opinions that give valid law force and effect while also critiquing and even overturning provisions that harm law-based governance.

When appreciated and enforced, "Due Process of Law" becomes a cardinal foundation of our emerging global discourse regarding the ideals undergirding the accountable, participatory, law-based civilization we must build, secure, enhance.

See Due Process of Law Reconsidered.

See Ordered Liberty.

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