Criminal Law is Subject to Procedural Due Process Protections

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

©Copyright 2010 by Anthony J. Fejfar

Following the United States Supreme Court Case of Fuentes vs. Shevin, 497 U.S.

67 (1972), no person can be deprived of Life, Liberty, Privacy, Property, or Pursuit of

Happiness by the government or a person acting under color of state law, without their

being a valid judicial procedure with the procedural due process protections of the

defendant’s individual and personal right to raise legal and constitutional defenses on his

or her behalf, the right to confront witnesses with cross-examination, the right that the

witnesses be sworn to tell the truth under pain of perjury, the right to a jury trial, the

right to have the traditional Rules of Evidence used in the proceeding, etc. Thus, in the

case of criminal law, within 8 hours of any arrest and confinement, a criminal defendant

has a right to a Preliminary Hearing, where the defendant appears, and is represented by

competent legal counsel, and where the traditional Rules of Evidence apply, and where

competent and relevant witnesses must be called, sworn, and legally testify on behalf of

the prosecution, and where the defendant has a right to cross-examine all witnesses, and

where a criminal complaint or information has been filed by the prosecutor which, on its

face, states law and facts, within constitutional constraints, which states a criminal cause

of action against the defendant, and where a police report supporting the facts alleged in

the criminal complaint must have been attached to the complaint, and where the police

reports is not admissible because of hearsay, and, where the prosecution witnesses must

actually appear and testify under oath, and where the prosecution must prove its case,
before a fair and impartial judge, by a preponderance of the evidence. Additionally,

within 24 hours of the preliminary hearing, there must be a bail hearing before the judge,

based upon the transcript from the preliminary hearing, granting reasonable bail. Also,

there must be an arraignment hearing, with the same criterion as stated above for the

preliminary hearing, with a bench trial by an impartial judge, finding that the defendant

is guilty of the crime charged, by Clear and Convincing Evidence. Then, within 2

months of the arraignment hearing, assuming the defendant has been bound over for trial,

there must be a jury trial, with a fair and impartial judge, and a fair and impartial jury,

where the prosecutor must prove his or her case with Proof Beyond a Reasonable Doubt.