Due Process: Arrest to Trial

Due Process: Arrest to Trial

CRJ420 Criminal Justice and the Constitution

Colorado State University Global

We have learned that the Constitution of the United States and all laws and treaties made under the authority of the U.S. shall be the supreme law of the land and that every state will be bound by the laws and the Constitution (Samaha, 2018). When laws are broken and individuals are arrested, regardless of guilt, the Constitution does not abandon them. Due process steps in to ensure that even after arrest, an individual’s rights are not infringed upon. Due process is the legal requirement that each state must respect all rights that are owed to a person. Due process is meant to balance the power of the law while protecting individuals from those powers.


So, what happens after someone has been arrested? When you are arrested you are taken into the custody of law enforcement, typically an individual is taken to a police station or jail by an officer. After the official arrest is the booking process. During this process many questions will be asked. It is important to understand that the questions that are asked during booking are by no means an interrogation. Once questions start to involve the reason for arrest, then it becomes an interrogation (Johnson, 2020). Questions typically asked during booking include address information, identification such as a license or state ID, place of work, and emergency contact information.

The next thing that usually happens is a custodial interrogation. The most important aspect of any interrogation is the Miranda warning. Since the ruling on Miranda v. Arizona, the Miranda warning has become a crucial part of law enforcement practices. The intention of this warning is to prevent police coercion (Samaha, 2018). The warning contains 4 parts: (1) You have the right to remain silent; (2) Anything you say can be used against you; (3) You have a right to an attorney; and (4) If you cannot afford an attorney, once will be appointed to you (Samaha, 2018). There are multiple reasons why this warning is given prior to custodial interrogations, the most important being the “inherently coercive nature” of interrogations. Statements that are made prior to a Miranda warning cannot be used against the individual, this includes incriminating statements.

After interrogation, the individual is held in jail until they are arraigned. Arraignment is the process of a judge advising the individual on their official charges. Additionally, during this hearing the judge will set bail and ask if they would like an attorney if they don’t already have one. If bond is posted then the individual may leave where they are being held with the “promise” that, if their case is to continue, they will return for their court hearing. If they don’t or cannot post bail then they will be taken back to jail until their court date or it has been decided that the case will not move forward. During this process, from booking to arraignment, many of the steps are protected by due process.


Due process can be seen at many points throughout the entire ordeal of being arrested and facing trial. While there is no actual like of required procedures for due process one judge, Judge Henry Friendly, created a list in the 1970’s that is still highly influential to this day. The list contains ten elements:

An unbiased tribunal.

Notice of the proposed action and the grounds asserted for it.

Opportunity to present reasons why the proposed action should not be taken.

The right to present evidence, including the right to call witnesses.

The right to know opposing evidence.

The right to cross-examine adverse witnesses.

A decision based exclusively on the evidence presented.

Opportunity to be represented by counsel.

Requirement that the tribunal prepare a record of the evidence presented.

Requirement that the tribunal prepare written findings of fact and reasons for its decision (Friendly, 1975).


When it comes to due process and identification the “totality of circumstances” must be considered carefully. This is because the process of witness identification can be and is incredibly suggestive and suggestion has no place in due process. The Department of Justice (2020) states that suggestive procedures include rigging lineups with individuals that the identifying witness knows except for the suspect, grossly dissimilar individuals from the suspect, and making only the suspect wear distinctive clothing. When violations in lineups or showups are committed, then the defendants due process rights have also been violated. When this happens an in-court identification of the defendant is no longer allowed (Department of Justice, 2020).


Confessions are probably the most important parts of any case, but not every suspect is so willing to give one up. Sometimes the suspect doesn’t even realize that they have been tricked or coerced into giving a confession and are falsely imprisoned. As mentioned before interrogations are inherently coercive in nature and because of this it is important that due process testing is done to ensure that confessions are given voluntarily, without compulsion or inducement (Lippman, 2014). A confession cannot be the result of physical or psychological coercion by officers, which is what was commonly seen in decades past. Nowadays, interrogations are recorded, either audio or video or both, to support a voluntarily given confession


The Bill of Rights “Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments contain 20 guarantees to persons suspected of, charged with, and convicted of crimes” (Samaha, 2018). When it comes to criminal procedure, individuals rights are laid out in these amendments. Since the 1960’s these powers apply to not just federal government powers but also to state and local governments. With the Supreme Court ruling that these powers applied to all levels of government, this meant that due process could be afforded to more people, as it should have been from the start.

The Fourth Amendment guarantees the right from unreasonable searches and seizure and the right to probable cause to support searches and seizures. The Fifth Amendment guarantees the right against double jeopardy and self-incrimination; in federal cases the Fifth Amendment also guarantees the right to grand jury indictment. The Sixth Amendment affords individuals the most: the right to a speedy trial, a public trial, and impartial jury, the right to be informed of the charges, the right to confront witnesses, the right to compulsory process to obtain witnesses in favor of the accused, and the right to defense counsel. The Eight Amendment protects individuals against excessive bail and cruel and unusual punishment. The Fourteenth Amendment gives us the right to due process of law and the right to equal protection of the law in criminal proceedings.


There are endless examples of how due process can come into play during criminal and civil procedures. Due process is incredibly important and a foundation of our criminal justice system, it is not some ignored theory on how the powers of law should be treating people during legal processes. It is a right, well-documented in our Constitution, put in place to protect the rights of every U.S. citizen.

The Fifth Amendment states that no person shall be denied life, liberty, and property without due process of law. The Fourteenth Amendment includes similar language but was implemented with the intentions of being more applicable to state and local government while the Fifths application is geared more towards federal government (Samaha, 2018). Due process requires that legal procedures must be fairly given to all so that no one individual is subjected to the seemingly endless power of the government.


Department of Justice. (2020, January 22). 241. Lineup-Due Process. Retrieved April 26, 2020, from https://www.justice.gov/archives/jm/criminal-resource-manual-241-lineup-due-process

Friendly, H. J. (1975). Some Kind of Hearing. University of Pennsylvania Law Review, 123(6), 1267. https://doi.org/10.2307/3311426

Johnson, J. (2020, February 10). What Happens When You Are Arrested? Retrieved April 26, 2020, from https://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/arrest_procedures.htm

Lippman, M. (2014). Criminal procedure. Los Angeles, CA: Sage.

Samaha, J. (2018). Criminal procedure. Boston, MA: Cengage Learning.

U.S. Const. Amend. V

U.S. Const. Amend. VI

U.S. Const. Amend. VIII

U.S. Const. Amend. XIV

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