Introduction
The Constitution states that due process shall be and should be observed at all times, either in criminal or civil cases. Due process can either be substantive or procedural. Substantive due process is contained in several branches of law and refers to the government’s interference with an individual’s exercise of rights. Usually, it involves acts, matters or issues which society deems controversial. Examples of issues that have to be settled with substantive due process is the allowance or prohibition of abortion, same sex marriage and any form of state regulation which involves potentially or in any way incidentally limiting rights.
On one hand, procedural due process refers to compliance with rules set by the law and by the court in the administration of justice. Not only is procedural due process limited to warrants of arrests and criminal prosecution, but also to matters such as remedies of the accused, the course of the trial, and the presentation of evidence to name a few
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The first phrase of the Fifth Amendment referred to presentment to grand juries, in that, no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury. The trial by a jury exhibits due process, as it allows the accused to present his case to a group of people from different backgrounds, permitting him to obtain a trial that is less biased and more fair. Since the heart of due process is an individual’s protection of his rights and liberties, it is a must that his grievance be judged not only by one person but by a group before his freedom be taken away from him.
In the United States however, the grand jury has evolved to serve a slightly different purpose. It helps the judge determine probable cause, that is, if there exists reasonable suspicion that the accused committed the crime. It assists in the indictment, that matter submitted by a prosecutor which states if the accused should indeed be prosecuted. Thus, the creation of an indictment, which is can either be true bill if there exists probable cause, or no bill, if there exists no probable cause is an exercise of due process. With the presence of a jury, an individual is shielded at least from the possible abuses of the government, or those in people in power, from the abuse of their discretion and or authority in determine to whether prosecute a person or not. The jury’s indictment is therefore an exercise of due process.
Probable cause is vital when an individual is arrested, for it is the very basis for the issuance of a warrant. Without the existence of probable cause, an individual’s liberty cannot be curtailed in any way. For example, if a policeman attempts to frisk a person, he or she has to have probable cause, a well founded belief or reason that the person in question should be subjected to such act. In doing so, he is in a way affecting that person’s right.
One controversial non use of the grand jury was in the O.J. Simpson case. The lawyers were able to convince the judge that the grand jury will not serve its purpose due to the numerous barrage of information the media has provided. Instead of presenting the case of Nicole Simpson to the grand jury, the judge did away with it, siding with the defense that the jurors are possibly to prejudiced to arrive at an impartial decision.
In United States v Jackalow,, the judiciary followed proper legal procedures and jurisprudence, a hallmark of the concept of due process. The court elaborated that there was a mistrial, for the judges that prosecuted him lacked jurisdiction. The court further stated that jurisdiction had first to be determined with certainty through a jury, before the judge would have the judicial authority to prosecute him. In this case, due process in terms of jurisdiction was duly illustrated. The accused through the declaration that a mistrial occurred was spared from being subject to the caprices of the judges who had lacked jurisdiction. That is, prior to his being convicted, it was ensured through the jury, that the court had sufficient authority as conferred by law to subject him to trial.
Courts should protect individuals from double jeopardy because the Fifth Amendment states that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Double jeopardy, a criminal law construct, at the same time an assertion of procedural due process prohibits the government from putting an individual under trial or prosecution for the same offense more than once. Thus, a person who has been acquitted in one State cannot be tried in another State even if the State’s constitution does not expressly prohibit it. Double jeopardy is not fair because it allows an accused to be severally and continuously prosecuted without end. Thus, a person who is subject to double jeopardy can never be actually free nor can he regain his freedom totally because he is in danger of being prosecuted at any time.
The risk of being not put in double jeopardy is guaranteed by the Fifth Amendment. The State has assured three rights for the individual, under the double jeopardy clause of the Fifth Amendment. An individual thus cannot face prosecution trial after acquittal, nor can he be put into another prosecution for the same offense after conviction, nor can he be punished more than once for the same offense. Thus, the double jeopardy clause contained in the Fifth Amendment is a cornerstone of due process.
The prohibition on double jeopardy was touched upon in the case of United States v Nickerson (1854), where the accused was held to answer for false statements made in the availment of the the cod fishing vessels subsidy. It was held that after acquittal on the first statements made, a second trial on the same matter yet on different statements made for the same purpose and at the same time as the first statements where he was acquitted upon,, shall be dismissed lest be the accused be subject to double jeopardy.
Another guarantee of the due process clause refers to the prohibition to compel a person to be a witness against himself. As enshrined in the Fifth Amendment, no person nor shall be compelled in any criminal case to be a witness against himself. Such legal doctrine is aptly termed the right to self-incrimination.
The right implies that the defendant cannot stand as a witness against himself during trial. Moreover, he cannot be compelled to speak nor take his day at the witness stand. Not even the lawyer, the prosecutors, the judge or any other person can coerce him to take the witness stand. However, as a caveat, once the defendant decides to avail of the witness stand, he waives his right against self incrimination in the Fifth Amendment, that is, he cannot choose to answer questions selectively.
Additionally, defendants who refuse to take the witness stand cannot be prejudged guilty by the jurors. In fact, in the case of Ohio v Reiner, decided in 2001, the court stated that perhaps, a defendant may have a reasonable fear of prosecution, despite his innocence. This guarantee in the Fifth Amendment protects a defendant who might likewise be prejudiced by circumstances not in his favor, thus his decision to whether or not take the witness stand should be of his own volition.
It has to be noted however that the Fifth Amendment clause on self incrimination extends to witnesses. Witnesses unlike defendants may choose to answer questions selectively. Lest they be include in the charge, a witness may opt to remain silent on other matters which may not be on his favor. However, unlike defendants, witnesses may be judicially obligated to appear on the witness stand to testify through a subpoeana.
In the case of Ohio v Reiner, the court has once again defined the invocation of the Fifth Amendment right available to witnesses. The baby sitter Batt was blamed by defendant, Alex’s father, as the culpable party in the manslaughter of 2-year old Alex. Fearing self incrimination, Batt refused to testify. The lower court however stated that the witness may only correctly rely on such right when his testimony will furnish a link pointing to his culpability. A mere fear of incrimination unsubstantiated by evidence does not convince the court. Quoting Hoffman v US, the court once again said that it has the power to order a witness to testify if he has wrongly invoked his right under the Fifth Amendment.
The power to determine whether the witness may incriminate himself is for the court to interpret. The court held that Batt’s testimony cannot incriminate her, for she has totally denied any commission of a wrong doing against Alex, the child who died. However, the Supreme Court here held that, the defendant’s wanting to prosecute Batt as the one responsible for the child’s death is a substantiated, reasonable fear that may validly be invoked against self incrimination.
Not included however in the Fifth Amendment guarantee on the right to self incrimination are blood samples and DNA samples to be collected. The court may in its discretion require defendants to undergo DNA testing or blood sampling, in connection with the case. The court held that the protect one’s se;f against self incrimination extends only to testimonial or communicative evidence. It does not include evidence such as blood, hair, and matters that cannot be transmitted orally
The Miranda rights, derived from the Miranda v Arizona case in 1966 was a landmark decision. It was the first time that the court held that statements given by a defendant during police investigation can only be admitted during trial if the latter has been informed of his rights against self-incrimination. Great is the emphasis given by the court in an individual’s right to not incriminate himself that the court refuses to recognize any statement made even if in the presence of police authorities if the latter has not been properly informed. In this sense, not only are procedures abided by, but that the judiciary ensures that due process is well and alive up to this day. However, it has to be clarified that in the case of Miranda, interrogation was not considered unconstitutional. In fact, the court rendered such form of governmental questioning as unviolative of the Fifth Amendment rights. What has been emphasized is the right to refuse to provide information during such form of questioning.
The phrase in the Fifth Amendment which states that an individual cannot be deprived of life, liberty, or property, without due process of law is the only express statement invoking due process. Due process as has already been earlier discussed shields an individual from capricious state intervention. Further, should the state be required to interfere with the individual’s life, liberty or property, he may only do so with the observance of due process. This statement in fact encompasses the Fifth Amendment’s definition of due process. Reference to an individual’s life and liberty points to the right against double jeopardy, as prosecution imperils a person’s liberty, should he be found wanting. Not only is freedom at stake, but his life a well, as incarceration would inevitably result to the taking of an individual’s life, primarily the right to enjoy his life. As to property rights, although the state has a more liberal approach in matters that refer to property, nevertheless, it has ensured that a person’s hard labor not be taken away from him without just compensation.
Parallel to the protection of one’s liberty and life is the provision of counsel for the accused who cannot afford such. The court in Gideon v Wainright stated that the federal states are mandated to provide counsel or defense lawyers for those who are too poor to avail of their own. In doing so, the ensuing trial which in itself is a process which will deprive the accused of his own liberty and certain freedoms shall be done fairly, such that the accused is apprised of his own rights by his counsel and defended by them.
The last phrase of the Fifth Amendment still refers to due process, as it points to expropriation. Expropriation is the means used by the State to obtain private property, using its police power. However, for the taking of property to be considered just and not oppressive, the State is mandated to offer commensurate compensation.
The taking of property can be traced back to Eminent Domain, that is the State is the first and primary owner of all the territories under its stead, including the terra and the aqua. Private ownership however is allowed and can be achieved through registering properties in the Registry of Deeds. However, consonant with its concept of having eminent domain over all territories, it can with due process, opt to take back private property.
This inherent power of the state is an attribute of sovereignty. However, in line with the concept of the due process, the executive branch cannot exercise this power without a statute enacted by the legislative branch. The legislature must first enact a law to specify the purpose of the taking before the State can proceed with the expropriation.
It has to be made clear however that the Fifth Amendment, in its focus on due process did not create the power of Eminent Domain. The power to take is innate in the State. What the Fifth Amendment provided is a limitation or regulation of such power. IN 1905, the court in Clark v Nash specified that public use cannot be defined as to one purpose. Given the different circumstances and land available in the country, public use the court said shall vary per region.
Eminent domain was further redefined in the case of Breman v Parker in 1954. In this case, the court ruled that the blighted areas may be taken and razed to be able to redevelop and uplift the area. Meanwhile, in Hawaii Housing v Midkiff, the court ruled for the tenants. It said that the state, in its exercise of eminent domain had sufficient interest to transfer the title to the tenants, from the oligopolistic owners who leased the premises in order to break the housing oligopoly.
In one case involving the Pensylvannia Coal Company,the government here exercised its power of Eminent Domain. While the company was right in asserting that indeed, it had the right to remove coal buried under its private property, still the government is without limitation to prohibit such, most especially if such has been mandated by legislation. The Kohler Act was the piece of statute which allowed the government to act on its inherent power of eminent domain.
The above mentioned cases were an exercise of the state’s power of Eminent Domain. However, in the execution of such mandate, the state is required by the Fifth Amendment to justly compensate those individuals whose property were taken from them. Without such just compensation, the taking of property would be a violation of property rights.
References
Berman v. Parker 348 U.S. 26 (1954).
Clark v. Nash 198 U.S. 361 (1905).
Hawaii Housing Auth. v. Midkiff 467 U.S. 229 (1984).
Ohio v Reiner 532 US 17 (2001).
Miranda v. Arizona 384 U.S. 436 (1966).
The Constitution of the United States," Amendment 5.
United States v. Jackalow, 66 U.S. 1 Black 484 484 (1861).
