Due process is a concept that is most often used in the practice of law. It means that the right procedures and proper ways and steps must be followed before making a judgment on a person's life, property or liberty. The rights to due process are stipulated in the constitution of each country. Every individual has the right to due process irrespective of the social class, race, ethnicity or political affiliation that one originates from. The concept of due process entails fairness in trial. This paper explores the concept of due process and the adversarial system. It also looks into the rights of the accused and describes the process that is followed after a crime is committed going through all the post arrest procedures.
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Due process basically implies that the rights of the person who has been accused is presented to a tribunal that is capable of judging on the individual's life, property and liberty in its comprehensive sense, hears the individual's testimony, allows him or her the right to controvert by use of proof all materials that provide factual information that touch on the rights on the matter that is involved. Due process cannot be modified in any way by the rule of law or any kind of legislation. Due process is universal meaning that individuals everywhere in the world deserves the right to be heard when they are accused. It means that the prosecution must take the accused individual as innocent until proven to be guilty in any manner by use of undoubted evidence. Due process is an aspect of humanity that entails giving every human being the right of benefit before making a judgment that may take his liberties, life or even property. In cases where an individual is not given the chance to be heard in a court of law then due process does not exist. Due process entails fairness for all (Hartigan, 2003).
The adversarial system of law is a system that depends on the contest between advocates who represent their clients' positions and make use of an impartial person or group of persons in most cases a jury, judge or magistrate to determine the truth in a case. The adversarial system of law is adopted generally in countries that have common systems of law. It entails the cross examination of people who act as witnesses and presentation of any other evidence that might be useful to a neutral and independent decision making process in a court of law. In instances involving criminal cases, the adversarial system is most often referred to as accusatorial system. In this essence, outcomes are produced on the basis of rule governed struggle between two or even more opposing sides. The system is commonly found in Britain and the United States of America together with the countries that were their colonies. Thus in this system judgment is passed based on concrete evidence that is placed on the court's view. An individual's innocence or guilt is founded by his or her ability to prove that using evidence and witnesses provided by the advocates on his side. In the use of adversarial system individuals posses the right to withhold any issue of contention (van Koppen and Penrod, 2003).
When a person is accused of committing a crime, there are certain rights that he possesses before and after the trial. These rights are normally outlined in the constitution. First, the accused person has the right to be secure in their homes against any unlawful and unreasonable searches and apprehension. Before any such event happens the individual has the right to be issued with prior notice that is supported by oath of allegiance and stipulating clearly the place of search, time and or the reason and information about the things to be seized.
An accused person has the right to be informed the reason for his arrest before the arrest is carried out. An accused person has the right to appear before a judge so that he can ascertain whether he is being held in legal terms or not. It is with this right that an individual gets the chance to prove his innocence. He also has the right to get an attorney to help him through the trial process.
A person has the right to individual liberty. An accused person is allowed the right to be free from arbitrary and excessive use of power. The police or any other authority is not allowed to force an accused person to let out information that he himself does not want to make public. Personal preference is protected by the law (Ramen, 2001).
An accused person has the right to fair trial in a court of law. This means that the due process must be applied in trial of the person. A person is not held guilty unless proven otherwise. Fair trial means that an individual is given the chance to present his side of the story, provide evidence and witness who may prove his innocence. The accused has the right not to be declared guilty before trials.
An accused person has the right not to be punished before being proven guilty by the court of law. Any form of punishment should be served after the person has been proven guilty and the form of punishment derived from the type and magnitude of the offence. Fair punishments are also the right of the accused. The accused has the right to appeal in cases where he feels that he has been given excessive punishment (Gaines and Miller, 2008).
An accused person has the right to be protected by the law against any form of harassment by those accusing him or her. He has the right to be secured against all potential threats that may endanger his safety or his life. If not proven guilty, the person has the right to be freed without any further delay and may decide to sue the accuser or not.
After trial has taken place and the relevant evidence produced together with hearing witnesses and both sides of the accused and accusers, an individual has the right to know the punishment that he has been given, the duration and the place that he will undertake the punishment from. The accused has the right to know specific information regarding the punishment he has been given and his limitations while serving the punishment (Ramen, 2001).
The process after a crime has been committed through the post arrest procedures includes several steps. Firstly, a warrant of arrest is issued against the accused. The accused is located and arrested by the police then taken to the police station. Fingerprints are then taken and the accused receives a police file. While in police custody one may either be bailed out depending on whether he can afford the bail fee (Sax, 2009).
The accused has the right to seek the services of an attorney. In cases where one cannot afford that, then the court will appoint an attorney on his behalf. After this the hearing will start. The process here entails being asked whether an individual pleads guilty or not. If he does not, then presentation of evidence and witnesses starts. After the trial the accused can either be pronounced guilty or not by the judge basing on the evidence produced. If proven guilty the court decides on the type of punishment and rules it. If not proven guilty then the accused is freed from custody (Sax, 2009).
Due process is a vital thing in human rights safeguarding. If the correct procedures and process are used in court systems, then people are helped to obtain their rights and prevented from succumbing to acts of impunity. Adversarial systems are very important because those accused are helped to gain as much advantage as they can obtain in the trial period ensuring fairness for all those involved in the process.