Discussion Question

Of the major steps in the criminal process, do you think any procedural step is more important in terms of observing a defendant's due process rights? Can you think of situations or examples of how a defendant's rights could be infringed upon in each of the steps? 

• The arrest stage is likely the most important step in the process for the defendant's due process rights to be protected since that is where the person is thrown into the (often lengthy and expensive) criminal justice system. Even if the person is ultimately not charged, has their charges dismissed, or is found not guilty at trial, at the moment of the arrest they become a person with an arrest record whose life is now disrupted by being taken into police custody (and often resulting in missed work, appointments, and other obligations). The defendant's due process rights are also important at various other stages of the criminal justice process. At the initial appearance, it's important for the defendant to be made aware of the charges against them without excessive time spent in custody and the additional anxiety of not knowing what charges they're facing. At this stage, as well as at the formal filing of charges, it's also important that only charges for which there is probable cause to believe that the defendant committed the crime are filed. At the arraignment stage, it's important for the defendant to not be unduly pressured into a plea or for the defendant to not be made aware of any plea bargain offers. The due process rights of the defendant are also incredibly important at the trial stage since that is the stage at which guilt is determined. Examples of violations of the defendant's due process rights at trial include being denied of their right to an attorney or being compelled to testify against themselves. If the defendants due process rights are not honored at trial, it is likely that their attorney will have to appeal to a higher court, thus subjecting the defendant to further legal expenses and entanglement with the criminal justice system, such as more time spent in custody and additional court appearances and legal fees.

Practice Question

Laura receives notice from the state's criminal law division that she has been indicted for illegally trading in corporate securities. The criminal detective advises Laura to report to the local police station where she will be processed for arrest and detention. On the way to the police station, Laura calls her attorney and asks about the process that she will face if the government continues with the charges against her. If you are Laura's attorney, explain to Laura the process that she can expect. 

• The attorney should explain to Laura that the indictment means that she is facing felony charges and is likely facing a lengthy legal process. She should tie up whatever personal loose ends she can (arranging for childcare, pet care, time off work, etc) before reporting to the station for processing as, at minimum, she may not be home for several days. At the station, she should expect to be administratively processed (fingerprints, medical check, etc), formally arrested and assigned a cell, and spend a few nights in custody before her eligibility for bail is determined. Her attorney should advise her not to answer any questions regarding her securities trading activities (or any other questions unrelated to her processing such as name, birthday, medical history, etc) without her attorney present and to verbally state her desire to speak to her attorney. Since she was indicted instead of arrested, the next step will be her arraignment at which time she will be asked to enter a plea. Her attorney will advise her to enter a plea of not guilty since at this stage neither she nor her attorney is aware of what evidence the prosecution has against her. If she is eligible for pretrial release, she will likely have to post bail as well as abide by other conditions set by the court. If she is ineligible for bail, she will return to jail during pre-trial and trial proceedings. Then she should expect to meet with her attorney to plan for her defense, to be made aware of the evidence against her as well as any witnesses, and to decide if she will testify in her own defense at trial. After reviewing the evidence against her with her attorney, she should expect to either negotiate a plea or to go to trial where the prosecution will present the evidence against her and her attorney will present her defense and she will be found guilty or not guilty by either a judge or a jury.

Academic Research

• Hodgson, Jacqueline S. and Roberts, Andrew J., An Agenda for Empirical Research in Criminal Justice: Criminal Process and Prosecution (July 29, 2010). Warwick School of Law Research Paper No. 2010/13. Available at SSRN: https://ssrn.com/abstract=1650552 or http://dx.doi.org/10.2139/ssrn.1650552