Due Process of Law Within the United States

Within the United States, it is every citizen’s guaranteed right under the U.S. Constitution that no person shall be deprived of life, liberty, or property, without the due process of law. This concept applies to every aspect of the government, including the state, obligating them to uphold the right of due process. Defining the term of due process, understanding what it implies, and identifying how due process affects the criminal justice system is valuable knowledge for any American.

The concept of due process applies to different aspects of law; however, primarily concerns the proceedings in which an individual, their property, or their liberty stand to be compromised by government or law, as incorporated by the due process clauses within the Constitution. Due process promises equal protection of the laws from both federal and state administrations, regarding either property or liberty. They are bound to carrying out sufficient procedures that ensure fundamentally fair government action is taken (New York State Department of Civil Service, 2002).

The concept of due process is the general assurance that each level of American government upholds the constitution in the adversary process by operating fairly within the constructs of the law. Because due process directly relates to the adversary system an understanding of that system is necessary. Webster’s New World Law Dictionary defines the adversary system as “a method of adjudication in which active and unhindered parties, usually through their lawyers, contest with each other and present support in favor of their respective positions, usually through the examination and cross-examination of witnesses and the presentation of other evidence, to a neutral and independent decision maker” (n.d., 2011).

Also dubbed the accusatorial system in criminal proceedings, the adversary system is a general representation of the legal system within the United States. It is within this system that due process rights are given. Due process protects against the deprivations of life, liberty, and property. Property interests can include both traditional and nontraditional forms of property, with traditional property referring to tangible belongings and nontraditional property referring to assets such as government relationships. The guarantee of liberty can also be divided into two interests. Fundamental liberties are those listed in the Bill of Rights (e.i. freedom of speech, to bear arms, press, religion, unlawful search or seizure, ect.). However, non-fundamental liberties are state created and only defined by state legislature. They often do not provide a clear representation of monetary value, unlike property interests (New York State Department of Civil Service, 2002). Either way, the procedural due process rights of the accused are effective immediately following the development of a case. A number of rights citizens, and more important the accused, possess under the clause of due process.

When a crime is committed law enforcement act against it, thus turning the wheels of the adversary system. However, an effort to maintain the integrity of due process, as stated by the Constitution, remains paramount throughout the entire process (Legal Information Institue , 2010). In the advent of an arrest, federal rules and guidelines govern the action of law enforcement ensuring substantive due process applies to an investigation.

Additionally, the Fourth amendment requires law enforcement to have substantial probable cause, usually in the form of a warrant, to search or seize any property. Upon arrest the suspect has the right to fair notice according to due process. Fair notice includes advising suspects of their rights prior to them speaking and reading them the Miranda Warning, as the provided by the fifth and Sixth Amendments. Once detained, the criminal defendant has a right to a speedy trial. However, this also encompasses how quickly the charges are filed, and the amount of time that passes before an arraignment is made (Legal Information Institue, 2010).

Procedural rights of due process also include the accused’s rights to counsel, pre-hearing disclosure or discovery, cross-examination, official notice, burden of proof, a neutral decision-maker, no lengthy delay, and a statement of decision explaining the basis for which the decision was made. Defendants also have the right to receive a fair trial by an impartial jury of their peers. According to due process, the defendant has a right to call witness to, present, and theorize on facts in to mount a case of defense. Additionally, due process gives access to the defense, the evidence and witnesses brought against them by the prosecution.

Due process ensures a fair trial to the criminal defendant many ways, but begins by providing legal representation or counsel, followed by a pre-hearing disclosure or discovery (New York State Department of Civil Service, 2002). Cross-examinations are a due process right for a fair trial, as is official notice, and burden of proof. Only the evidence brought forth, and the legal rules relevant at the time of the proceedings can be used for official judgments, and the burden of proof is that of the prosecution’s to carry, meaning the evidence must support their case. Defendants have the right for a neutral, impartial decision maker to prevail over their trial, further protecting them from bias in the courtroom. Thus also ensuring a verdict based solely on evidence and facts.

After a decision in court, due process gives the criminal defendant the right not only to hear any judgments but also the right to have those judgments explained in detail, giving him or her notice of and grounds for any action. Although the due process of law is rightfully inherent to any individual facing individualized government action within the United States, certain procedures are required, whereas others are case by case specific. The FCC and Community Radio website,

CriminalGovernment.com, defines due process at length by summarizing it with quotes. "Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." (Definition of Due Process of Law, n.d.) “Aside from all else, ‘due process’ means fundamental fairness and substantial justice” (Definition of Due Process of Law, n.d.) In whatever manner given, the U.S. Constitution and adversary system ensure the due processes of law to every citizen facing conviction, court, or administrative government action.

References: Adversary System. (n.d.). Retrieved from yourdictionary.com: http://law.yourdictionary.com/adversary-system Legal Information Institue . (2010, August 19). Criminal Proceedure. Retrieved from LII/Legal Information Institute: http://www.law.cornell.edu/wex/criminal_procedure Meyer, J. F., & Grant, D. R. (2003). The Courts in Our Criminal Justice System. Upper Saddle River, NJ, USA: Prentice-Hall, Pearson Education Inc. n.d. (2011, October 24). Adversary System. Retrieved from Legal-Dictionary: http://legal-dictionary.thefreedictionary.com/Adversary+System Definition of Due Process of Law. (n.d.). Retrieved from CriminalGovernment.com: http://www.criminalgovernment.com/docs/duproc0.html New York State Department of Civil Service. (2002, October 20). CH 3 Due Process of Law. Retrieved from Hearing Officer's Manual: http://www.cs.state.ny.us/pio/hearingofficermanual/chapter03-dueprocess.htm Strauss, P. (2011). Due Process. Retrieved from LII/Legal Information Institute: http://www.law.cornell.edu/wex/due_process