Due process
As it relates to the constitution, the nature of due process appears in 4th amendment, while the literal phrase is stated in the 5th.
Both amendments deal with cause and effect and clearly specify that no effect will take place without a fair and proper cause of action or series of causes, often, in a predetermined order with the best interest of the people at large. This interest benefits the individual.
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual person from it. It’s also defined as a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result.
While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law.”
From this basic principle flows many legal decisions determining both procedural and substantive rights.
The government is charged with being the third party to disputes of both civil and criminal matters. On one hand is the enforcement of law with the ultimate goal of redress; and on the other, is the individual and collective rights of the people. At all costs, government are to ensure that individual and collective rights are not violated in the pursuance, enforcement, interpretation and creation of the law.
Cause of action
In both civil and criminal matters, the courts cannot take action without a cause (a claim must be filed.)
The same stands of due process are true before any matter is brought to court. I.e. there are a series of causes and effects that need to take place before, during and after litigation in court for both civil and criminal matters.
In both civil and criminal law, one requirement for movement of the court, is a principle called ,corpus delecti,’ or in English, as specified by the 6th amendment, an injured party.
Corpus delicti (Latin for "body of the crime").
In general, all corpus delicti requires at a minimum:
When an injured party brings a claim into criminal or civil court, they are referred to as the prosecution and the accused is referred to as the defendant.
One party accusing and one party defending against the accusation(s).
The right to due process mostly affects the latter. Although procedurally the prosecution has similar rights to due process: such as the right to appeal.
The cause that results in the action of bringing a claim to court, in civil matters, may be recited to as a tort, injury or as in criminal matters, the corpus delecti: the body of the crime, and the action of the crime. I.e, stolen goods and the person whom they belong to (body of the crime) and the person who did the act of stealing.
A tort may be something as simple as a breach of contract such as a rental agreement, commercial contract, or other municipal infractions that often result in the payment of small fines. For individuals being fined over $20, the defendant has the right to a trial by jury.
After the injury
After a tort or crime, the person seeking relief, may, in a criminal case, file a police report and press charges.
When a police report is filed and the injured party accuses a person as the one who committed the criminal act. A warrant is issued to summons the individual to court, but in a civil case, no warrant is necessary.
4th amendment - “… no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Indictment
“An indictment formally charges a person with a crime. During an indictment proceeding, a grand jury determines if there is adequate basis for bringing criminal charges against a suspected criminal actor. An indictment is one of two options a prosecutor has to formally charge a person with a criminaloffense:
The indictment enables the prosecution of a suspect for the offenses charged. An indictment is a constitutional guarantee that nobody can face a criminal trial without being previously notified of the alleged criminal offenses.
Proceeding
Each state statute determines its indictment proceeding. Generally, the prosecutor will present evidence to a grand jury during an indictment proceeding. After the prosecutor has presented the evidence, the grand jury must decide whether there is an adequate basis for bringing criminal charges against a suspect and, therefore, issue an indictment against them. The criminal charges, evidence, witnesses, and deliberations are sealed and are not available to the public.” - https://www.law.cornell.edu/wex/indictment
Once the individual is brought to court, either by summons or warrant, they are: “…informed of the nature and cause of the accusation; to be confronted with the witnesses against him…”
This initial hearing in criminal cases is often called an indictment.
When a person is indicted, they are given formal notice that it is believed that they committed a crime. The indictment contains the basic information that informs the person of the charges against them.
This process of being informed of the accusations against a defendant is often called the “arraignment” or an “initial hearing”. Where you “hear” the accusations against you. At this stage, you will also be given what is called “discovery.” Discovery is all of the evidence, both incriminating and exculpatory, statements, videos, etc. that the prosecutor has against you. This is provided to you as a right because you have the right to: “to have the Assistance of Counsel for his defence.” This is your right to defend yourself after you have been given ALL of the information, alleged facts and accusations made against you before you proceed to a trial.
Exculpatory evidence is any evidence that might exonerate the defendant.
Inculpatory evidence incriminates an accused person.
Hearsay evidence is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
“Either the same day or the day after a defendant is arrested and charged, they are brought before a magistrate judge for an initial hearing on the case. At that time, the defendant learns more about his rights and the charges against him, arrangements are made for him to have an attorney, and the judge decides if the defendant will be held in prison or released until the trial.
In many cases, the law allows the defendant to be released from prison before a trial if they meet the requirements for bail. Before the judge makes the decision on whether to grant bail, they must hold a hearing to learn facts about the defendant including how long the defendant has lived in the area, if they have family nearby, prior criminal record, and if they have threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community.” - https://www.justice.gov/usao/justice-101/initial-hearing
After this initial hearing, begins what is called “preliminaries”, or a series of “pre-trial hearings”. This is the time to argue any issues of law, such as a 4th amendment violation in the gathering of evidence. This is often called a “motion to suppress” and clearly explains what evidence or statements were improperly seized and is based on the facts of the case and supported by res Judicata; statutory exemptions; challenges to jurisdiction; issues of double jeopardy; speedy trial motions; plea deals, etc.
During this process of preliminary hearings, any motion that is not granted in your favor, weather your the prosecutor or defendant, as a matter of law or fact, both parties have the right to appeal the judges decision to a higher judge or court.
Appellant is the party who appeals a lower court's judgment or order to a higher court. The appellant is dissatisfied with the outcome of the proceeding and seeks review by a higher court to overturn or modify the decision. In some courts, it is also referred to as a petitioner. The appellant is generally required to file a notice of appeal to show that there are sufficient grounds for appeal.
By contrast, the appellee is the party against whom the appeal is filed and responds to and defends the appeal. The appellee is also referred to as the respondent.
appeal
“An appeal is a challenge to a previous legal determination. An appeal is directed towards a legal power higher than the power making the challenged determination. In most states and the federal system, trial court determinations can be appealed in an appellate court. The rulings of those appellate courts may be reviewed by a "court of last resort." In the federal court system, that is the United States Supreme Court.
…
Appeals can be either discretionary or of right. An appeal of right is one that the higher court must hear, if the losing party demands it, while a discretionary appeal is one that the higher court may, but does not have to, consider. For example, in the federal system, there is an appeal of right from the District Court to the Court of Appeals but appeals from the Court of Appeals to the Supreme Court are discretionary.” - https://www.law.cornell.edu/wex/appeal
Pro se
Latin for "for oneself, on one's own behalf." When a litigant proceeds without legal counsel, they are said to be proceeding "pro se." See, e.g. Rivera v. Florida Department of Corrections, 526 U.S. 135 (1999).
The Sixth Amendment guarantees criminal defendants the right to representation by counsel. In 1975, the Supreme Court held that the structure of the Sixth Amendment necessarily implies that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806 (1975). Thus, an unwilling defendant may not be compelled by the State to accept the assistance of a lawyer. A defendant's right to self-represenatation in federal criminal proceedings is codified in 28 U.S.C. § 1654.
https://www.law.cornell.edu/wex/pro_se#:~:text=Latin%20for%20%22for%20oneself%2C%20on,right%20to%20representation%20by%20counsel.
A pro se complaint is held “to less stringent standards than formal pleadings drafted by lawyers” and may be dismissed only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quotations omitted).
The law
The Supreme law of the land is the constitution; the Supreme law in every state is both the federal and state’s constitution. All statutes and code of both the federal and state governments must be made in pursuance to the constitution.
Any statute that is challenged as violating either constitution must be heard in the proper court and litigated. Any statue, code or ordinance declared to be in violation of the constitution is considered null, void, and creates no liability on anyone and must be seen as such ab initio (from the beginning). All previous decision made according to the unconstitutional provisions must be reversed.
At the federal level, all laws challenged and claimed to be violations on the federal constitution is called ‘raising the “federal question”.’ Judicial authority for this lay in article III section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”. It is codified in 28 U.S.C 1331, while the remainder of the section, dealing with diversity jurisdiction is codified in 28 U.S.C 1332.
Writing a Motion or Writ
In order to have your point heard in court, you must move the court. Moving the court is simply a command to do something based on the facts and the law.
In practice, a writ is normally given from a higher court to a lower court, commanding the lower court to do something. By definition, a writ is a command.
A motion, is a request for the courts to make a decision based on the facts and the law. When the facts are supported by law, the court is obligated (commanded) to rule in favor of your motion. The the court (judge) violated the law, misinterprets the law, misinterprets your position and or the facts, abuses their discretion or makes an error of law, you have grounds for an appeal.
All motions / commands must contain an affidavit of fact, a memorandum of law and the signature of the moving party.
The court cannot make a decision on your argument until a hearing is heard. Unfortunately, some Moors file documents with the courts, but do not schedule a hearing with the clerk. Normally when a motion is filed, the clerk will schedule a hearing 2 weeks out. It is then your responsibility to notify the opposing party by sending them a copy of the stamped motion which has the hearing date on it.
An affidavit is a statement of facts. A memorandum is a reminder on which laws, typically the common law via res Judicata, are applicable for your argument; some statutory language or reference may be used as well.
As it relates to the constitution, the nature of due process appears in 4th amendment, while the literal phrase is stated in the 5th.
Both amendments deal with cause and effect and clearly specify that no effect will take place without a fair and proper cause of action or series of causes, often, in a predetermined order with the best interest of the people at large. This interest benefits the individual.
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual person from it. It’s also defined as a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result.
While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law.”
From this basic principle flows many legal decisions determining both procedural and substantive rights.
The government is charged with being the third party to disputes of both civil and criminal matters. On one hand is the enforcement of law with the ultimate goal of redress; and on the other, is the individual and collective rights of the people. At all costs, government are to ensure that individual and collective rights are not violated in the pursuance, enforcement, interpretation and creation of the law.
Cause of action
In both civil and criminal matters, the courts cannot take action without a cause (a claim must be filed.)
The same stands of due process are true before any matter is brought to court. I.e. there are a series of causes and effects that need to take place before, during and after litigation in court for both civil and criminal matters.
In both civil and criminal law, one requirement for movement of the court, is a principle called ,corpus delecti,’ or in English, as specified by the 6th amendment, an injured party.
Corpus delicti (Latin for "body of the crime").
In general, all corpus delicti requires at a minimum:
- The occurrence of the specific injury; and
- some criminal act as the source of the injury.
- Homicide: 1) An individual has died 2) as a result of action (or inaction) by another person.
- Larceny: 1) Property is missing 2) because it was stolen by another person.
When an injured party brings a claim into criminal or civil court, they are referred to as the prosecution and the accused is referred to as the defendant.
One party accusing and one party defending against the accusation(s).
The right to due process mostly affects the latter. Although procedurally the prosecution has similar rights to due process: such as the right to appeal.
The cause that results in the action of bringing a claim to court, in civil matters, may be recited to as a tort, injury or as in criminal matters, the corpus delecti: the body of the crime, and the action of the crime. I.e, stolen goods and the person whom they belong to (body of the crime) and the person who did the act of stealing.
A tort may be something as simple as a breach of contract such as a rental agreement, commercial contract, or other municipal infractions that often result in the payment of small fines. For individuals being fined over $20, the defendant has the right to a trial by jury.
After the injury
After a tort or crime, the person seeking relief, may, in a criminal case, file a police report and press charges.
When a police report is filed and the injured party accuses a person as the one who committed the criminal act. A warrant is issued to summons the individual to court, but in a civil case, no warrant is necessary.
4th amendment - “… no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Indictment
“An indictment formally charges a person with a crime. During an indictment proceeding, a grand jury determines if there is adequate basis for bringing criminal charges against a suspected criminal actor. An indictment is one of two options a prosecutor has to formally charge a person with a criminaloffense:
- Indictment issued by a grand jury.
- Criminal complaint filed directly to the court. In this case, the prosecutor does not need to get an indictment from a grand jury.
The indictment enables the prosecution of a suspect for the offenses charged. An indictment is a constitutional guarantee that nobody can face a criminal trial without being previously notified of the alleged criminal offenses.
Proceeding
Each state statute determines its indictment proceeding. Generally, the prosecutor will present evidence to a grand jury during an indictment proceeding. After the prosecutor has presented the evidence, the grand jury must decide whether there is an adequate basis for bringing criminal charges against a suspect and, therefore, issue an indictment against them. The criminal charges, evidence, witnesses, and deliberations are sealed and are not available to the public.” - https://www.law.cornell.edu/wex/indictment
Once the individual is brought to court, either by summons or warrant, they are: “…informed of the nature and cause of the accusation; to be confronted with the witnesses against him…”
This initial hearing in criminal cases is often called an indictment.
When a person is indicted, they are given formal notice that it is believed that they committed a crime. The indictment contains the basic information that informs the person of the charges against them.
This process of being informed of the accusations against a defendant is often called the “arraignment” or an “initial hearing”. Where you “hear” the accusations against you. At this stage, you will also be given what is called “discovery.” Discovery is all of the evidence, both incriminating and exculpatory, statements, videos, etc. that the prosecutor has against you. This is provided to you as a right because you have the right to: “to have the Assistance of Counsel for his defence.” This is your right to defend yourself after you have been given ALL of the information, alleged facts and accusations made against you before you proceed to a trial.
Exculpatory evidence is any evidence that might exonerate the defendant.
Inculpatory evidence incriminates an accused person.
Hearsay evidence is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
“Either the same day or the day after a defendant is arrested and charged, they are brought before a magistrate judge for an initial hearing on the case. At that time, the defendant learns more about his rights and the charges against him, arrangements are made for him to have an attorney, and the judge decides if the defendant will be held in prison or released until the trial.
In many cases, the law allows the defendant to be released from prison before a trial if they meet the requirements for bail. Before the judge makes the decision on whether to grant bail, they must hold a hearing to learn facts about the defendant including how long the defendant has lived in the area, if they have family nearby, prior criminal record, and if they have threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community.” - https://www.justice.gov/usao/justice-101/initial-hearing
After this initial hearing, begins what is called “preliminaries”, or a series of “pre-trial hearings”. This is the time to argue any issues of law, such as a 4th amendment violation in the gathering of evidence. This is often called a “motion to suppress” and clearly explains what evidence or statements were improperly seized and is based on the facts of the case and supported by res Judicata; statutory exemptions; challenges to jurisdiction; issues of double jeopardy; speedy trial motions; plea deals, etc.
During this process of preliminary hearings, any motion that is not granted in your favor, weather your the prosecutor or defendant, as a matter of law or fact, both parties have the right to appeal the judges decision to a higher judge or court.
Appellant is the party who appeals a lower court's judgment or order to a higher court. The appellant is dissatisfied with the outcome of the proceeding and seeks review by a higher court to overturn or modify the decision. In some courts, it is also referred to as a petitioner. The appellant is generally required to file a notice of appeal to show that there are sufficient grounds for appeal.
By contrast, the appellee is the party against whom the appeal is filed and responds to and defends the appeal. The appellee is also referred to as the respondent.
appeal
“An appeal is a challenge to a previous legal determination. An appeal is directed towards a legal power higher than the power making the challenged determination. In most states and the federal system, trial court determinations can be appealed in an appellate court. The rulings of those appellate courts may be reviewed by a "court of last resort." In the federal court system, that is the United States Supreme Court.
…
Appeals can be either discretionary or of right. An appeal of right is one that the higher court must hear, if the losing party demands it, while a discretionary appeal is one that the higher court may, but does not have to, consider. For example, in the federal system, there is an appeal of right from the District Court to the Court of Appeals but appeals from the Court of Appeals to the Supreme Court are discretionary.” - https://www.law.cornell.edu/wex/appeal
Pro se
Latin for "for oneself, on one's own behalf." When a litigant proceeds without legal counsel, they are said to be proceeding "pro se." See, e.g. Rivera v. Florida Department of Corrections, 526 U.S. 135 (1999).
The Sixth Amendment guarantees criminal defendants the right to representation by counsel. In 1975, the Supreme Court held that the structure of the Sixth Amendment necessarily implies that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806 (1975). Thus, an unwilling defendant may not be compelled by the State to accept the assistance of a lawyer. A defendant's right to self-represenatation in federal criminal proceedings is codified in 28 U.S.C. § 1654.
https://www.law.cornell.edu/wex/pro_se#:~:text=Latin%20for%20%22for%20oneself%2C%20on,right%20to%20representation%20by%20counsel.
A pro se complaint is held “to less stringent standards than formal pleadings drafted by lawyers” and may be dismissed only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quotations omitted).
The law
The Supreme law of the land is the constitution; the Supreme law in every state is both the federal and state’s constitution. All statutes and code of both the federal and state governments must be made in pursuance to the constitution.
Any statute that is challenged as violating either constitution must be heard in the proper court and litigated. Any statue, code or ordinance declared to be in violation of the constitution is considered null, void, and creates no liability on anyone and must be seen as such ab initio (from the beginning). All previous decision made according to the unconstitutional provisions must be reversed.
At the federal level, all laws challenged and claimed to be violations on the federal constitution is called ‘raising the “federal question”.’ Judicial authority for this lay in article III section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”. It is codified in 28 U.S.C 1331, while the remainder of the section, dealing with diversity jurisdiction is codified in 28 U.S.C 1332.
Writing a Motion or Writ
In order to have your point heard in court, you must move the court. Moving the court is simply a command to do something based on the facts and the law.
In practice, a writ is normally given from a higher court to a lower court, commanding the lower court to do something. By definition, a writ is a command.
A motion, is a request for the courts to make a decision based on the facts and the law. When the facts are supported by law, the court is obligated (commanded) to rule in favor of your motion. The the court (judge) violated the law, misinterprets the law, misinterprets your position and or the facts, abuses their discretion or makes an error of law, you have grounds for an appeal.
All motions / commands must contain an affidavit of fact, a memorandum of law and the signature of the moving party.
The court cannot make a decision on your argument until a hearing is heard. Unfortunately, some Moors file documents with the courts, but do not schedule a hearing with the clerk. Normally when a motion is filed, the clerk will schedule a hearing 2 weeks out. It is then your responsibility to notify the opposing party by sending them a copy of the stamped motion which has the hearing date on it.
An affidavit is a statement of facts. A memorandum is a reminder on which laws, typically the common law via res Judicata, are applicable for your argument; some statutory language or reference may be used as well.