The Rights of the Accused: Due Process and Fair Trial Considerations

Due process concerns lie at the very heart of the legal system. The idea is that the legal system is supposed to follow certain procedures. A decision made arbitrarily might find facts accurately, and it might provide remedies that seem fair, but accuracy and fairness are much more likely if the system operates within procedures and every litigant has a right to those procedures. That’s due process. It’s guaranteed by both the Fifth Amendment of the U.S. Constitution and Article I, Section 3 of the Washington constitution. 

But how much process is due? That’s the question, whether the case involves something as serious as a felony prosecution for rape, child abuse, or domestic violence, or something much less grave, such as a ticket for an illegal lane change, or a neighborhood dispute about a dog that barks late at night. 

Due Process in Criminal Cases

As you might have guessed, the process due varies from one kind of case to another. Nowhere does the law provide more process than it does to a defendant charged with a felony such as child abuse, sexual assault, or a domestic violence felony. In a trial on a charge like that, it is easy for the fact finder (usually a jury) to be swept up in emotion by shocking testimony.

Among the process due in cases charging sex crimes, child sexual abuse, child physical abuse, or domestic violence:

• The right to be presumed innocent.
• The right to trial by jury, in the place where the crime is said to have occurred.
• The right to testify or not, as one wishes, and not to have a decision to remain silent counted against one.
• The right to confront adverse witnesses, and to have them cross-examined.
• The right to competent legal counsel.

The U.S. Constitution and its Bill of Rights grant many of these protections to defendants, plus others such as the Fourth Amendment protection against arbitrary and unlawful searches and seizures. The Washington Constitution is similar, with Article I, Section 3 stating, “ No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The state cannot search someone’s home without a warrant, with some exceptions. For example, a police officer could not walk into someone’s house on mere suspicion of their committing domestic violence or child abuse.

While there are minimum rights that apply throughout the nation, states can provide more and broader protections and rights to their citizens. For example, the Washington Supreme Court in State v. Stroud ruled that officers need a warrant to open locked boxes or containers found in an otherwise lawful warrantless search. 

The Fifth Amendment allows a defendant to refuse to speak when doing so could incriminate them. This means that a person cannot be forced to answer questions put by police or to testify at their trial. While how far officers can go without running afoul of this legal protection varies, at any point a defendant can call for an attorney and simply refuse to continue answering questions. While many defendants choose to testify in their defense at trial, many choose not to — and that choice can’t be used against them by the prosecution or jury. 

The Fifth Amendment also provides the right to trial by jury, which the defendant can invoke or waive at will. Jurors must be local to where the alleged crime occurred. Persons called to jury duty are questioned by both the prosecution and the defense, to ensure the jury is as unbiased as possible. For example, suppose a defendant is accused of child molestation. In that case, jurors will be asked whether they have had experiences with child abuse that could cloud their judgment, making them more likely to believe or to reject accusations of child molestation. 

The Fifth Amendment also protects against “double jeopardy,” or being charged with the same offense twice. If someone accused of sexual assault is acquitted, the state may not put the defendant to trial again on the same charge. 

Finally, the Sixth Amendment grants defendants the right to counsel in criminal proceedings. Their counsel must be “effective.” That doesn’t mean that the attorney must win. It means counsel must perform competently. The Supreme Court ruled in Strickland v. Washington that the standard for proving denial of the right to effective assistance of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

Due Process in Civil Cases

How much process is due in civil cases? 

Civil cases include cases such as dependency cases, where a child can be removed from their parents’ care, and Child Protective Services administrative determinations that a person has committed an act of child abuse or child neglect. 

Due process concerns lie at the very heart of the legal system. That’s why we’re devoting two posts to it. If you haven’t yet read the first one, we recommend starting with it.

Due process is guaranteed by both the Fifth Amendment of the U.S. Constitution and Article I, Section 3 of the Washington constitution. But what does “due process” mean?

It’s the constitutions’ way of saying that our legal system isn’t just about getting to the right answer; it’s also about following certain procedures — both because doing that shows respect for persons brought to court, and because courts are more likely to get to the right answers if they follow the procedures. It’s a way of saying we don’t want judges or juries to just “go with their gut.”

Let’s shift now to civil cases. How much process is due in civil cases?

Civil cases include cases such as dependency cases, where a child can be removed from their parents’ care, and Child Protective Services administrative determinations that a person has committed an act of child abuse or child neglect.

Here the constitutional requirements are not as sharply defined as in a criminal case. The U.S. Supreme Court has said that the least that due process requires is a meaningful opportunity to be heard at a meaningful time. Whether state procedures are good enough is decided by balancing the interests of the person with the burden on the government of the procedures the person is demanding.

In non-criminal cases alleging child abuse, domestic violence, and sexual misconduct, the accused’s interest can be quite large. For example, whether a child will be removed from their parent’s care matters a great deal to the parent as well as to the child. In Washington, cases like that, called dependency cases, are among the few civil cases in which a parent without much wealth has a right to an attorney at public expense.

But in a case where a person is being sued for money damages for abuse of a child, the state is not obliged to give the defendant an attorney at public expense. But even there the Fifth Amendment applies; a person cannot be compelled to make statements that could incriminate them — but in Washington and most states, their silence can be used against them in civil cases. (California does not allow that.) Both parties have the right to demand a jury trial.

Of course, the rules don’t enforce themselves. Most everyone with a legal case needs a skilled and diligent attorney to see that the other side follows the rules and that the person actually gets due process. This begins long before trial, for example, by filing timely and proper motions, obtaining discovery, and resisting improper discovery requests.

Post-Conviction Relief from Conviction After an Unfair Trial

Let’s turn back to criminal cases and consider what relief a person can get when they don’t get due process at trial.

Sometimes a trial judge decides during trial that a defendant’s due process rights have been violated and that there is only one way to fix that: declare a mistrial, release the jury, and start a new trial, with due process provided.

But often trial judges refuse to do what defense attorneys ask them to do to protect the defendant’s rights. Then a claim of an unfair trial and an unjust conviction must be presented to a higher court. In a criminal case, there are two different paths to a remedy for a person wrongly convicted of a sex crime, child abuse, or domestic violence: appeal (sometimes called “direct appeal”) and collateral attack.

A common form of collateral attack is habeas corpus. In Washington, though, the most common form of collateral attack is a Petition for Relief from Personal Restraint (usually abbreviated “PRP”).

But an appeal is usually the first form of post-conviction relief sought for sex crimes, child abuse, domestic violence, and every other kind of criminal case. Every court system in the country allows a defendant to appeal their conviction to a higher court. Appeals must be filed quickly, and issues for appeal must have been preserved in trial objections. In Washington state, appeals go to the Washington Court of Appeals, of which there are three divisions, based in Seattle, Tacoma, and Spokane.

Appellate courts are courts of law, not fact, so on direct appeal they do little but evaluate the decisions of the trial judge. The evidence, witnesses, exhibits, and facts they consider are only those presented to the trial judge.

The defendant argues that the judge made mistakes which made their trial unfair. They may argue that the judge gave the jury bad instructions on the law or that the judge improperly admitted or excluded evidence. In a domestic violence case, the judge may have admitted hearsay statements by the person said to have been assaulted. In a child sex abuse case, the judge may have excluded testimony by an expert in child suggestibility. There are many possible errors in cases charging sex crimes, child abuse, and domestic violence.

The appeals court either affirms the conviction or reverses it. Reversing it can lead to either a remand (where the case goes back to the trial court, probably for a new trial in line with the appellate court’s decision) or ending the prosecution entirely; the latter is quite rare. Whoever loses at the Washington Court of Appeals can seek review by the Washington Supreme Court. While the Court of Appeals must hear the appeal, the Supreme Court has discretion on which cases to take, and it takes only about one in twenty it is asked to take.

Petition for Relief from Personal Restraint

A Petition for Relief from Personal Restraint (PRP) is unique to Washington law, but it is similar to a writ of habeas corpus, an ancient way to free a person from unlawful imprisonment. PRP’s must be filed no later than one year after the end of direct appeal, or after new evidence is uncovered or a change in law enacted. A PRP is not limited to evidence in the trial record; a PRP can introduce new evidence to show that the defendant (now known as the “petitioner”) was denied due process or other legal rights. A petitioner must show both error and prejudice to get a new trial or resentencing.

If You or Someone You Love Is Accused of a Sex Crime, Child Abuse, or Domestic Violence, We Can Help

Due process is often complex and difficult to understand. An attorney at the Marshall Defense Firm can explain your rights to you–and fight in court to see that you get them. We have decades of experience representing the accused in both civil and criminal cases, defending them against claims of domestic violence, child abuse, sexual assault, and other misconduct. Our compassion for our clients shows in the vigor with which we fight for them.

If you or a family member needs a lawyer’s help, contact us at (206) 826-1400 or solutions@marshallandsaunders.com for an appointment.