The Rights of the Accused, Part 1: Due Process and Fair Trial Considerations in Domestic Violence, Child Abuse, and Sexual Assault Cases

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. 


In our next post, we’ll explain:

  • how the due process guarantee applies to civil cases; and
  • the two different ways that a criminal defendant who has been denied due process at trial can win a new trial—and a second chance to get due process.


If you or someone you care about faces an accusation


Due process is often complex and difficult to understand. Having skilled counsel to explain and fight for your rights is paramount. An attorney at the Marshall Defense Firm can be that counsel. We have years of experience representing people in both civil and criminal cases, defending them against accusations of domestic violence, child abuse, sexual assault, and other misconduct. We care about our clients, and the way we fight for them shows that. 

If you or a family member needs a lawyer’s help, contact us at 206.826.1400 or for an appointment.


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