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Due Process – 5th and 14th Amendments

Due process is a complicated and often misunderstood legal concept, especially as it applies to criminal law.  Due process rights are established through the 5th Amendment.  Due process protections were extended to the states through the 14th Amendment.

The 5th Amendment states rather succinctly that “…no person shall …be deprived of life, liberty, or property, without due process of law.”  This seemingly simple phrase has given birth to thousands of cases at all levels of the courts from local, to state to federal.  In fact, the 5th and 14th Amendments are given life through the courts.  Due process evolves over time through the courts with of course the ultimate arbiter being the United States Supreme Court.

It is important to understand the distinction between substantive due process and procedural due process.  Both are very important to the rights of an accused individual.  The two are closely connected.  However,  it is most often procedural due process issues that arise in criminal cases.

Substantive due process is a fairly broad concept.  Substantive due process relates to the protection of individuals from the violation of their fundamental constitutional liberties.  These rights and liberties are set forth throughout the Constitution and its Amendments. In addition, rights and liberties may be expanded, but not contracted, by the states.

Procedural due process addresses specific procedural requirements necessary to protect those fundamental rights.  The Rules of Criminal Procedure embody many of the protections of procedural due process.  However, procedural due process kicks in early well before a criminal case is commenced in court.

In addition, procedural and substantive due process are often closely intertwined with procedural protections associated with such issues as search and seizure, speedy trial rights, double jeopardy, confessions, Miranda warnings and so on.

Procedural due process also relates to seemingly mundane but critically important matters such as adequate notice of charges, timing of charges, statutes of limitations, identification of witnesses, disclosure of evidence, burdens of proof and other many other protections essential for the protection of the rights of the accused. 

These protections evolve steadily over time with constant tensions between law enforcement, prosecution and the “protection of the public”, and the rights of individuals in the criminal process.  Due process and its many elements are critical to the rights of the accused and to a free society.  And violations of due process are most frequently the basis for any favorable outcomes for a defendant.

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