What is procedural due process?

The phrase “due process” describes the legal principle that the government must respect the rights afforded to U.S. citizens under the law.  It comes from the Fifth Amendment to the U.S. Constitution (and the Fourteenth Amendment, in which it is repeated), which states that “no person may be deprived of life, liberty, or property, without due process of law.”

Today, the phrase “due process” usually refers to one of two sets of rights.  The first is substantive due process, which includes rights related to personhood, like the right not to be discriminated against or the right to privacy.  The second is “procedural due process,” which govern how legal proceedings must be carried out.

The core procedural due process rights are the rights to notice and a hearing.  In other words, in any legal or administrative proceeding, any person who might be negatively affected by the outcome of the proceeding has the right to be told that the proceeding is going to take place, the right to appear before a neutral judge or arbiter, and the right to explain his or her side of the case before a decision is made.   This right applies to all types of government-related cases, from administrative decisions to civil cases to full-fledged criminal trials.  It applies to cases that involve federal, state, or local government units.  The U.S. Supreme Court has even held that limited rights to notice and a hearing apply even to people who are not U.S. citizens, such as undocumented immigrants, prisoners of war, or “enemy combatants” held in U.S. prisons or detention facilities.

Many procedural due process rights, especially those that govern criminal trials, are laid out in the Bill of Rights.  The procedural due process rights in the Bill of Rights apply to all federal trials.  Many of these rights also apply to proceedings in state and local courts as well, but not all of them.  Those that do apply to state and local courts are said to be incorporated into the Fourteenth Amendment, which guarantees basic procedural due process rights in state proceedings as well as in federal ones.

Some of the procedural rights that apply in both state and federal proceedings include:

  • the right to notice and a hearing,
  • the right to remain silent in criminal investigations and trials so as to avoid incriminating oneself,
  • the right to be represented by an attorney in certain criminal cases, and
  • the right to have one’s case heard before a jury in criminal cases.

Federal civil trials must also include the right to a jury if the amount of damages being argued over is more than $20.00, according to the Seventh Amendment.  However, this amendment has not been incorporated against the states, and so states do not have to provide this particular procedural due process right.  (Some states do, however, provide a similar right in their own state constitutions.)

Procedural due process is often an issue in cases involving personal jurisdiction, because the question arises whether it is appropriate for a court to take away the property of a person it has no power over.   Many of the cases that deal with procedural due process explore the question of how much connection a person or business has to have with a particular state before procedural due process allows that state to levy a judgment against that person or business.

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