Sometimes you may hear about the concept of “due process” in connection with your rights in the criminal justice system. But what exactly does due process mean, and what are its sources of authority? In this and some of our future posts we will address due process generally as well as its core opponents.

Due process generally

The root of due process lies in the 5th Amendment to the U.S. Constitution, which states that no one shall be deprived of life, liberty or property without due process of law. As criminal sanctions can involve at least the first two of these three things, this means that due process is inextricably linked to the criminal justice system. In addition to the Constitution itself, both federal and state rules of criminal procedure also help to ensure that the due process rights of the accused are respected at the time of arrest through pretrial and trial proceedings and during sentencing if the trial results in a conviction.

The right to due process is so significant that it is referred to twice in the Constitution; in addition to the 5th Amendment, it also appears in the 14th Amendment to the U.S. Constitution, which effectively superimposes elements of the Bill of Rights to the U.S. Constitution onto state legal systems. Taken together along with court decisions interpreting them, the 5th Amendment now expands equal protection of the laws under the federal government and the 14th Amendment expands equal protection to the states.

Due process can be broken down into two subcategories: procedural and substantive. Procedural due process concerns itself with ensuring that the legal system observe constitutional rights included in the 4th, 5th, 6th and 8th Amendments, such as the right to a jury trial or the right not to testify against oneself. Substantive due process, on the other hand, related to the idea that due process could serve as a brake on some forms of legislation. For our purposes of examining due process in light of criminal law, we will confine ourselves to procedural due process.

Not every matter that finds its way before a court will invoke due process concerns. For due process to be an issue there must by some action by the government. This includes meeting the requirements for the issuance of a search or arrest warrant, and whether probable cause exists to detain a person before trial, among other considerations.

What are some of the procedural due process rights in criminal cases?

Due process in criminal law matters is largely established in the Bill of Rights to the U.S. Constitution. These include but are not limited to protections against unreasonable search and seizure, the rights of a defendant after arrest (which also contains the specific “due process” language), the right to a public and speedy trial and to have the assistance of legal counsel, and limitations on excessive bail requirements or cruel and unusual punishment.

In future posts we will examine specific due process elements, most notably the relevant amendments to the U.S. Constitution that form the core of procedural due process, in more detail.