Swamp Water Jurisprudence: Our most precious right


by Judge Dennis Challeen

If the average American was asked what our most precious right is, the answer would probably be the freedom of speech, the press, or religion; even a few would respond with the right to bear arms. Overlooked would be the right to two simple words: due process. It’s found in the Fifth Amendment of our Bill of Rights where it says that no person can be “deprived of life, liberty, or property, without due process of law.” In 1791 these words bound only the federal government and it took almost 100 more years (1868) to bind the states to afford these same rights to everyone (except women’s right to vote, which didn’t come until 1920).

Since the beginning of our country, the Supreme Court has been defining and expanding due process. An example is the right of privacy. It’s not in our Constitution but it’s implied from our Fourth Amendment right to be secure in our homes and our private belongings.

If you ever get into trouble, you will find “due process” entering your life immediately. Law enforcement officers, upon arrest, must advise you of what you are being charged with and your right to remain silent. If being held, you must be brought before a magistrate as soon as possible. A judge will then give you more “due process,” advising you of your rights, and setting a reasonable bond or releasing you on your promise to appear for all court hearings. If you face possible jail time and unable to afford an attorney, a public defender will be appointed to represent you.

This is only the beginning of your right to due process. In most cases you have a right to a jury trial (except divorce, juvenile, mental hearings and private family matters, which are heard before a judge). Your trial must be speedy and open to the public; and you can’t be tried twice for the same crime (double jeopardy). If you believe the judge is biased or not impartial, you have a right to challenge the judge for removal.

Due process requires the right to confront and cross-examine your accusers and to subpoena witnesses and physical evidence on your behalf. You are presumed to be innocent and cannot be convicted of a crime unless the government proves your guilt beyond a reasonable doubt. If convicted you cannot be subject to “cruel and unusual” punishment and you have a right to a written transcript of your trial and the right to appeal. If imprisoned, you have the right to reasonable medical care, food, and to be physically safe.

Any defense attorney and prosecutor worth his or her wages will explain there is much to understanding and applying these due process rights that constitute to our criminal justice system, with bookshelves full of cases in our law libraries.

I recall one of our local grown high school dropouts who used his considerable spare time getting in trouble with the law. In court he angrily complained that the “cops” didn’t read him his right to remain silent when he was arrested so he can’t be charged with any crime.

I asked if he confessed to anything. “Of course not,” he replied. I then advised him the purpose of the so-called Miranda Rights is to caution the accused of their Fifth Amendment right against self-incrimination, and if he incriminated himself it couldn’t be used against him at trial. “They apparently felt they caught you in the act and weren’t interested in your explanation.” “Well that’s not fair, they’re supposed to follow the law; how am I supposed to know that?” says he. “By staying in school and getting an education ... or learning to behave.”

Then there are some who think they know their constitutional rights and don’t. I’ll always remember the man who was arrested for disorderly conduct by standing on his porch shouting an obscenity. In court he brought his dog to prove to me that the obscenity was the dog’s name and he could prove the dog would respond to his name and calling his dog is “freedom of speech.” Unfortunately, his freedom of speech doesn’t give him the right to disturb the neighborhood.

Through the years I’ve become amazed at how people take for granted their constitutional rights and yet are clueless as to how their rights historically developed and how America’s due process slowly entered our lives.

Evidence of their erroneous presumptions comes from news items about some of our foolish young people who go mountain climbing and traveling in the Mideast, Asia and even into the “Hermit Kingdom of North Korea,” only to be arrested and charged with offenses unknown in America. They then beg our government to rescue them. They soon discover their demand for due process falls on deaf ears. When we leave this country our Constitution doesn’t go with us; it stays here.


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