The Rights of the Accused, Part 2: 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. 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.”


Due Process in Civil Cases


In Part 1 of this series on due process, we focused on criminal cases, where a lot of process is due to a defendant. 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 someone you care about needs a lawyer’s help, contact us at 206.826.1400 or for an appointment.


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