Do Presses or Due Process

By C J Oakes

One of the best known rights enumerated in the United States’ Constitution is the Fifth Amendment right to remain silent.  Not as well-known are the origins of this portion of the so-called Due Process clause.

In fact, most of the provisions known as Due Process stemmed from injustices experienced under English rule; the founders of this nation sought to protect future generations by putting into print certain requirements of the justice system.  Recognizing the need for just law, the guidelines are meant, not to hinder the exercise of justice, but rather to augment and better the criminal justice system.

The Origin of Due Process

Due process and the adversarial system date back to the 12th or 13th centuries.  King John signed the Magna Carta, which provided written legal protections to English Barons in 1215.  This document laid a foundation for many of the concepts included in the United States Constitution (Meyer & Grant, 2003).  One clause of the Magna Carta is especially worth noting:

“(39) No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgement (sic) of his peers, or by the laws of the land” (Meyer & Grant, 2003, p. 76)

Whereas the intent of Magna Carta was to limit the power of the government over free citizens, in but a short time, the charter did just the opposite.  Prior to the signing of this document, trial by battle was one of the popular methods of determining guilt–men fought to determine who was right. 

So as to enforce the charter, the King appointed traveling juries to judge cases and these were little more than puppets of the Crown. Of course, if the Crown won its case, the defendant was dispossessed of his land and holdings—the Crown generally won, for if an acquittal occurred, the juries were penalized. 

As a result, many accused preferred trial by battle or refused to agree to a jury trial altogether.  The King could not permit silence by an accused person, so he devised a devious method for pressing them into agreement to stand trial.

Do Presses and the Magna Carta

Pressing involved placing weights upon a prone defendant, adding increasing amounts until either he agreed to stand trial or died.  Some chose death-by-pressing rather than submit to trial because a trial meant losing their lands whereas in death, they knew their families would retain their holdings. 

Even in the New World, pressing occurred during the Salem Witch hunts (Meyer & Grant, 2003) so the framers of the Constitution were very familiar with this form of torture/criminal convictions.  A key protection against doing Presses is the right to remain silent in the Fifth Amendment, part of the Due Process in the Constitution.

Magna Carta, Reissue of 1225, in Case in Natio...
 Magna Carta, Reissue of 1225, in Case in National Archives Rotunda, 1965 (Photo credit: The U.S. National Archives)

None-the-less, more good than bad came out of the Magna Carta and the framers of the Constitution adopted the good portions for the new nation.  Juries were altered so that rather than hired puppets of the state, such were drawn from the public; the adversarial system that stemmed from the charter was retained. 

An accused person was to be informed of the charges, enjoy a public trial, and be represented by counsel for defense (United States’ Constitution). By implementing such due process protections, the founders were attempting to ensure that an accused person had every means available to mount a defense against the strong-arm of the state.  This was the ideal; however, just as the Magna Carta fell victim to the legal maneuverings of the state, so too have the Bill of Rights not been without failings.

A Check on Due Process Abuse

Foreseeing to potential for abuse of due process rights, the framers of the Constitution made provisions for a Supreme Court of the land with members appointed for life.  Appointing these judges for life terms reasonably removes the potential for decisions to be swayed according to the ever-changing whims of politics (Meyer & Grant, 2003). 

The Supreme Court has been directly instrumental in ensuring that the justice system respects the rights of defendants. In a number of hallmark cases, such as Gideon versus Wainwright, which guaranteed defendants the right to counsel, this court has enabled the nation to incorporate due process rights while the United States continues to grow and evolve (Meyer & Grant, 2003).  This protects citizens from abuse such as stemmed from the Magna Carta. 

Still, over 40 years after the Gideon ruling, abuses continue such as occurred with Hubert Lindsey prior to Hurricane Katrina in Gulfport, Mississippi. Homeless, Lindsey was arrested and tried without benefit of an attorney in clear violation of the Sixth Amendment and the Gideon ruling.  Unfortunately, his was not an isolated incident and even in other parts of the nation the poor often find themselves without counsel still today (Roane, 2006). 

In addition, many districts short of funding are forcing increasing workloads upon public defenders.  The effect of this is, in the words of one attorney, the same as “having no lawyer at all” (Meyer & Grant, 2003, p. 159).

Balance is Necessary for Due Process to Function Properly

This is a problem that should concern all Americans because the adversarial system, due process, is the only true protection against government intrusion of rights.  The state virtually has unlimited resources to conduct investigations into crime whereas the defendants seldom possess such power.  Even court appointed lawyers are given but small payments for services, large caseloads, and generally nothing for expert witnesses and additional investigations. 

The result is an adversarial system wherein the chief advocate, the defense attorney must fight a battle in court with his hands tied behind his back (Meyer & Grant, 2003). Without balance, the adversarial system is not very adversarial.  It is the adversarial system that protects the rights of individuals against encroachment by the state.  In all cases brought before the Supreme Court, a defense attorney was the one who sounded the alarm that something was amiss. 

In all cases, the defense attorney sought to ensure that his client’s rights were honored according to the Bill of Rights, especially due process.  Strip the courts of the balance necessary to ensure that rights are upheld and even precedents such as Gideon versus Wainwright become moot, as can be seen from the example of Hubert Lindsey in Gulfport, Mississippi. Additionally with court dockets overcrowded, judges are finding it necessary to process cases rapidly.  This likewise affects due process as it has been found that most cases appealed are done so as a result of judicial errors (Meyer & Grant, 2003).  The problem is best summed by Woodrow Wilson,

One cool judgment is worth a thousand hasty councils.  The thing to do is supply light and not heat” (60,000 Quotations, 2009, Woodrow Wilson).

Overworked, many judges are finding their decisions adding to the loads of the Appeals Courts and the U.S. Supreme Court.

Is Due Process in Danger of Again becoming Do Presses?

It could appear that history may repeat itself, for in still other ways the balance of the adversarial system is tipping against the public through the machinations of clever politicians.  Increasing numbers of Americans are arrested each year causing a serious backlog of cases in the courts. 

The United States Supreme Court is no exception and a result of this backlog is that this court is handling respectively fewer cases with the Federal Appeals Courts hearing the bulk.  It has been found that through careful placement of women and minorities in the courts, the decisions meted out are drastically affected. 

For example, when a panel of judges has at least one female judge, the male judges tend to defer to their female counterparts when deciding certain kinds of cases (Epstein, Boyd, & Martin, 2008)  In addition, it has also been found that female judges decide cases differently from males (Coontz, 2000). This is not to imply that females and minorities should not be appointed to the bench, but rather to demonstrate that judicial outcomes can be affected radically through careful placements. Politicians know this well and use such means to tip the scales of justice as they see fit.  

This should be a cause of concern because any manipulation of the justice system by politicians holds the potential for abuse.  Abusive manipulations of the Magna Carta are what led to pressing and unless Americans are watchful, due process could again become do presses.


  • 60,000 Quotations. (2009). Judgment. Retrieved from
  • Coontz, P. (2000, Fall). Gender and Judicial Decisions: Do female judges decide cases differently than male judges. Gender Issues, 18(4), 59.
  • Epstein, L., Boyd, C. L., & Martin, A. D. (2008, October). The Court(s) and the Election. Miller-McCune, 1(5), 40.
  • Meyer, J., & Grant, D. (2003). The Courts in Our Criminal Justice System. Upper Saddle River, NJ: Prentis-Hall.
  • Roane, K. R. (2006, January 26). When the Poor Go to Court. U.S. News & World Report, 140(3), 34.