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Due Process Violations Attorney in Chicago, IL

People accused and jailed for any type of crime still have rights, such as the right to remain silent, the right to a jury trial, the right to have a lawyer, the list goes on. All of these rights fall under the due process clause. Sometimes these rights are blatantly violated by law enforcement or the federal government. In order to prevent due process violations during a criminal or civil case, it’s best to have an attorney from Curcio Law on your side. Call 312-321-1111 for a free consultation.

due process violations

What is the Due Process Clause?

Both the fifth and fourteenth amendments contain the due process clause. Basically, this clause strictly prohibits the denial of life, liberty, or property by law enforcement or the federal government unless it’s authorized under U.S. law.

The Fifth Amendment

To fully understand the due process clause, you must first understand the fifth and fourteenth amendments which detail the due process protections. Not only does the fifth amendment ban the denial of life, liberty, or property, this amendment also sets the standard for how law enforcement should act towards suspects during a crime. The main constitutional rights listed in this amendment are:
  • The right to a grand jury indictment before the presentation of any criminal charges for felonies
  • A ban on double jeopardy, which is basically a ban on prosecuting a suspect twice for the same crime
  • Protection from self-incrimination, which is when a jury forces a suspect to testify against themself
  • A right for all suspects to have a fair trial
  • A promise that the government won’t confiscate private property without paying fair compensation based on the property’s market worth

The Fourteenth Amendment

The fourteenth amendment is most commonly known as the amendment that gave U.S. citizenship to all naturalized and born citizens, including former slaves, in 1868. The five sections of the fourteenth amendment describe a plethora of other crucial legal concepts, all of which remain highly influential today. An important distinction between the two amendments is that the fifth amendment provides protection from the federal government, while the fourteenth amendment provides protection from states.

Section One

Section one is mostly about granting U.S. citizenship during the Civil War era. It also describes the infamous due process protections – the prohibition of denying life, liberty, or property – as well as equal protection of the laws. The part about equal protection was certainly included as an attempt to protect black Americans from discrimination by state governments.

Section Two

This section of the fourteenth amendment mostly served to repeal the three-fifths clause in the original U.S. Constitution. Basically, this clause stated the U.S. would count slaves as three-fifths of a person instead of a whole person. Additionally, section two states that all American men over the age of 21 have the right to vote, regardless of their race.

Section Three

Section three states that public officials who participate in any kind of “insurrection or rebellion” against the Constitution can’t hold office. However, it also states that a two-thirds majority vote from Congress can allow these rebellious public officials to hold office again.

Section Four

Section four of the fourteenth amendment banned debt payments towards the Confederate States of America, which no longer existed upon ratification of this amendment in 1868. Additionally, this section banned payments to enslavers for the loss of human “property.” In other words, this section outlawed compensation for the emancipation of slaves.

Section Five

Basically, section five states that Congress has the power to enforce all the principles included in the fourteenth amendment.

Where Did Due Process of Law Originate?

Due process of law first appeared in the Magna Carta in 1215. King John of England created this document as a peace offering between him and rebel barons. The Magna Carta basically promised to protect church rights and to protect the rebel barons from illegal imprisonment. Additionally, it promised quick justice and limits on feudal payments to royalty. Unfortunately, this peace offering was unsuccessful. Clause 39 of the Magna Carta says:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

However, the first appearance of the phrase “due process of law” appeared in a statutory version of the Magna Carta in 1354, when Edward III of England reigned.

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law.”

Types of Due Process

There are basically two types of due process, and they are procedural and substantive.

Procedural Due Process

Fundamental fairness is the foundation of procedural due process. It means that before U.S. law deprives a person of life, liberty, or property, a jury must inform them of the charges and actions brought against them. Additionally, a jury must give the person a reasonable time to react. An indictment generally accomplishes this by outlining all of a person’s charges. A judge must also protect the defendant’s due process rights throughout the trial by ensuring that they’re aware of all stages of the proceedings. Listed below are the basic due process rights for both civil and criminal cases, created by Judge Henry Friendly:
  • An impartial court
  • Notice of the intended action, as well as the grounds for it
  • The opportunity to come up with reasons why the intended action shouldn’t happen
  • Call on witnesses and present evidence
  • Know opposing evidence
  • To cross-examine adverse witnesses
  • A decision made solely on the evidence given
  • The opportunity to have a lawyer
  • A court requirement to keep a record of the evidence given
  • The requirement that the tribunal prepare written findings and reasons for its conclusion

Substantive Due Process

Substantive due process allows courts to preserve certain fundamental rights from government interference. The rights to freedom of expression and association are two examples of substantive rights stated in the constitution. Presently under the Fourteenth Amendment’s substantive due process clause, the Supreme Court guarantees unique protection for three sorts of rights. They are:
  • Rights listed in the constitution’s first eight amendments
  • The right to vote, associate, and speak freely, which are all aspects of the political process
  • The rights of “discrete and insular minorities”
Procedural due process is generally accepted in law and in society. Meanwhile, substantive due process is controversial because it describes individual rights that the Supreme Court has interpreted. In other words, many of these substantive due process rights aren’t explicitly stated in the constitution. Therefore, many lawmakers believe that these substantive rights have no basis.

Due Process and the Rights of Criminal Defendants

In short, both due process clauses protect all suspects’ fundamental rights and also ensure fundamental fairness. Additionally, due process of law prevents the federal government from depriving suspects of their life, liberty, or property without first informing them of their charges and consequences.
The fifth and fourteenth amendments aren’t the only amendments that are important in criminal cases. The Supreme Court believes that the absence of the fourth, fifth, sixth, and eighth amendments basically denies a suspect due process of law under the fourteenth amendment.
due process violations

Fourth Amendment

The fourth amendment specifically protects suspects from unreasonable searches and seizures by law enforcement. This amendment doesn’t ban all searches and seizures, just the ones that are completely unreasonable. Basically, law enforcement must have probable cause before searching and seizing anything.

Sixth Amendment

The sixth amendment allows all criminal defendants to have a public trial that’s not delayed. Additionally, this amendment allows all defendants to have a lawyer and an unbiased jury. Lastly, all suspects have the right to know who’s accusing them of the crime along with the charges and evidence they’re facing.

Eighth Amendment

The eighth amendment basically bans excessive bail and fines along with cruel and unusual punishment.

How to Protect Your Due Process Rights

Unfortunately, the due process clause leaves plenty of room for violations either by law enforcement or the justice system. There are many things you can do to protect yourself if you happen to be the suspect in any crime, including:
  • Remembering that you do have rights, even before you’re arrested.
  • Exercising your right to remain silent during an arrest until you speak with an attorney at Curcio Law.
  • Not providing police with any information that isn’t explicitly specified in a search warrant.
  • Refusing a search of your home without a warrant.
  • Not resisting arrest even if you know that police violated your due process rights. Your lawyer will discuss these due process violations in court later.

The Importance of Having an Experienced Attorney at Curcio Law for Due Process Violations

The due process clause and due process violations can be extremely confusing. If you’re a suspect in a criminal or civil investigation, you may not even know if law enforcement or the justice system is violating your rights. That’s why you need an experienced attorney at Curcio Law to ensure that your life, liberty, or property isn’t denied before you’re aware of the charges and actions brought against you. An attorney at Curcio Law can:
  • Advocate for you and inform you of the next steps before you’re arrested so that your procedural due process rights aren’t violated by Chicago police misconduct
  • Go to court with you to make sure that a judge reads off your charges and allows you to enter a plea so that your procedural and substantive rights aren’t violated.
  • Fight for you during your pretrial.
For more information on how we can ensure that your due process rights aren’t violated during any criminal or civil case, call Curcio Law at 312-321-1111. Our experienced attorneys have been advocating for victims of due process violations for years. We also handle police misconduct in Chicago, Chicago police shootings, and fight for those who have been wrongfully convicted